TITLE 22. EXAMINING BOARDS

PART 6. TEXAS BOARD OF PROFESSIONAL ENGINEERS AND LAND SURVEYORS

CHAPTER 131. ORGANIZATION AND ADMINISTRATION

The Texas Board of Professional Engineers and Land Surveyors (Board) proposes amendments to 22 Texas Administrative Code, Chapter 131, specifically §§131.1 - 131.3, 131.5, 131.7, 131.9, 131.11. 131.15, 131.31, 131.37, 131.41, 131.43, 131.45, 131.81, 131.85, 131.101, and 131.103, regarding the organization and administration of the agency. These proposed changes are referred to as "proposed rules."

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The rules under 22 Texas Administrative Code Chapter 131 implement Texas Occupations Code, Chapter 1001, the Texas Engineering Practice Act.

The proposed rules implement necessary changes as required by House Bill (HB) 1523, 86th Legislature, Regular Session (2019), related to the merger of operations of the Texas Board of Professional Engineers and the Texas Board of Professional Land Surveying into the Texas Board of Professional Engineers and Land Surveyors (TBPELS).

As required by HB 1523, the operations of the two agencies have been merged into one and the associated rules regarding operations of the agency have been merged into Chapter 131 per the guidance of the Secretary of State. These rules reflect language that has been expanded to include the name of the new agency, the regulation of land surveying, and other changes incorporated due to the merger. Some language has been included from the previous surveying rules including 22 Texas Administrative Code, Chapter 661.

SECTION-BY-SECTION SUMMARY

The proposed rules amend §131.1 by adding references to land surveying and the Professional Land Surveying Practices Act to reflect the merger.

The proposed rules create a new section §131.2 concerning rule definitions. It moves the definition rule to the beginning of the chapter and combines engineering rule section §131.81 and surveying rule section §661.31. It also clarifies language related to land surveying, engineering, and updates citations.

The proposed rules amend §131.3 by updating the agency name to the Texas Board of Professional Engineers and Land Surveyors.

The proposed rules amend §131.5 by updating the agency name to the Texas Board of Professional Engineers and Land Surveyors.

The proposed rules amend §131.7 with minor language clarifications, references to land surveyors, and a reference to the Board membership to include a member from the General Land Office per HB 1523 modification to Texas Occupations Code §1001.1011.

The proposed rules amend §131.9 with a minor language clarification.

The proposed rules amend §131.11 contain minor language clarifications and remove unnecessary citations.

The proposed rules amend §131.15 by clarifying committee names, adding references to land surveying and surveyor registration, and removing specific references to advisory committee and replacing with general authority for advisory committees per HB 1523 and Texas Occupations Code §1001.216 as amended.

The proposed rules amend §131.31 by stating that a registered professional land surveyor may also be eligible to be Executive Director.

The proposed rules amend §131.37 to clarify a citation to Chapter 2261 of the Texas Government Code.

The proposed rules amend §131.41 to clarify the title of the rule.

The proposed rules amend §131.43 with a minor language change and by clarifying that only the Board chair may set time limits for public comment.

The proposed rules amend §131.45 to remove a requirement designating the specific location of board meetings.

The proposed rules repeal §131.81 and move the language to §131.2 to clarify the formatting of the chapter.

The proposed rules amend §131.85 to add language related to the land surveying rule adoption process which requires input from the Surveying Advisory Committee, as provided for in HB 1523 and Texas Occupations Code §1001.216 as amended.

The proposed rules amend §131.101 to clarify that Texas Occupations Code §1001, subchapter M, only provides for advisory opinions for engineering and not surveying.

The proposed rules amend §131.103 to clarify that Texas Occupations Code §1001, subchapter M, only provides for advisory opinions for engineering and not surveying.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Dr. Lance Kinney, Ph.D., P.E., Executive Director for the Board, has determined that for each year of the first five years the proposed rules are in effect, there are no estimated additional costs or reductions in costs to state or local government as a result of enforcing or administering the proposed rule.

Dr. Kinney has determined that for each year of the first five years the proposed rules are in effect, there is no estimated increase or loss in revenue to the state or local government as a result of enforcing or administering the proposed rule.

LOCAL EMPLOYMENT IMPACT STATEMENT

Dr. Kinney has determined that the proposed rules will not affect the local economy, so the agency is not required to prepare a local employment impact statement under Government Code §2001.022.

PUBLIC BENEFITS

Dr. Kinney has determined that for each year of the first five-year period the proposed rules are in effect, the public benefit will be the efficient and effective merger and operations of the Texas Board of Professional Engineers and Land Surveyors per HB 1523 and clarified rule language.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL

Dr. Kinney has determined that for each year of the first five-year period the proposed rules are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules because the changes are related to agency operations as set forth in HB 1523, Occupations Code 1001 and 1071.

FISCAL IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES

There will be no adverse effect on small businesses, micro-businesses, or rural communities as a result of the proposed rules. Since the agency has determined that the proposed rules will have no adverse economic effect on small businesses, micro-businesses, or rural communities, preparation of an Economic Impact Statement and a Regulatory Flexibility Analysis, as detailed under Texas Government Code §2006.002, is not required.

ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT

The proposed rules do not have a fiscal note that imposes a cost on regulated persons, including another state agency, a special district, or a local government. Therefore, the agency is not required to take any further action under Government Code §2001.0045.

GOVERNMENT GROWTH IMPACT STATEMENT

Pursuant to Government Code §2001.0221, the agency provides the following Government Growth Impact Statement for the proposed rules. For each year of the first five years the proposed rules are in effect, the agency has determined the following:

1. The proposed rules do not create or eliminate a government program.

2. Implementation of the proposed rules do not require the creation of new employee positions or the elimination of existing employee positions.

3. Implementation of the proposed rules do not require an increase or decrease in future legislative appropriations to the agency.

4. The proposed rules do not require an increase or decrease in fees paid to the agency.

5. The proposed rules do not create a new regulation.

6. The proposed rules do not expand, limit, or repeal a regulation except as provided by HB 1532 which transferred the regulation of land surveying to the TBPELS, and these rules reflect a transfer of that regulatory authority from the former Board of Professional Land Surveying to the TBPELS.

7. The proposed rules do not increase the number of individuals subject to the rule's applicability.

8. The proposed rules do not positively or adversely affect this state's economy.

TAKINGS IMPACT ASSESSMENT

The Board has determined that no private real property interests are affected by the proposed rules and the proposed rules do not restrict, limit, or impose a burden on an owner's rights to his or her private real property that would otherwise exist in the absence of government action. As a result, the proposed rules do not constitute a taking or require a takings impact assessment under Government Code §2007.043.

ENVIRONMENTAL RULE ANALYSIS

The Board has determined that the proposed rules are not brought with the specific intent to protect the environment or reduce risks to human health from environmental exposure; thus, the Board asserts the proposed rules are not a "major environmental rule," as defined by Government Code §2001.0225. As a result, the Board asserts preparation of an environmental impact analysis, as provided by §2001.0225, is not required.

PUBLIC COMMENTS

Any comments or request for a public hearing may be submitted, no later than 30 days after the publication of this notice, to Lance Kinney, Ph.D., P.E., 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. SCOPE AND DEFINITIONS [ORGANIZATION OF THE BOARD]

22 TAC §131.1, §131.2

STATUTORY AUTHORITY

The rules are proposed pursuant to Texas Occupations Code §§1001.101 and 1001.202, which authorize the Board to regulate engineering and land surveying and 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 practices of engineering and land surveying in this state. The proposed rules also comply with HB 1523.

No other codes, articles, or statutes are affected by this proposal.

§131.1.Purpose and Duties.

(a) The board is statutorily empowered to regulate the practice of engineering and land surveying in Texas.

(b) The board shall promulgate and adopt rules as authorized and required by statute, which are necessary for the performance of its duties. Such rules shall establish standards of conduct and ethics for engineers and land surveyors, ensure strict compliance with and enforcement of the provisions of the Acts [Act], ensure uniform standards of practice and procedure, and provide for public participation, notice of the agency actions, and a fair and expeditious determination of causes before the board.

(c) The board may act directly under its statute and rules or through the executive director or a committee of the board.

(d) Pursuant to the Texas Engineering Practice Act and the Professional Land Surveying Practices Act, the board is responsible for policy-making decisions and the executive director is responsible for the agency's management decisions.

§131.2.Definitions.

In applying the Texas Engineering Practice Act, the Professional Land Surveying Practices Act, and the board rules, the following definitions shall prevail unless the word or phrase is defined in the text for a particular usage. Singular and masculine terms shall be construed to include plural and feminine terms and vice versa.

(1) ABET - ABET, Inc., formerly the Accreditation Board for Engineering and Technology.

(2) Acts - The Texas Engineering Practice Act, Texas Occupations Code Chapter 1001, and the Professional Land Surveying Practices Act, Texas Occupations Code Chapter 1071.

(3) Advisory Opinion - A statement of policy issued by the board that provides guidance to the public and regulated community regarding the board's interpretation and application of Chapter 1001, Texas Occupations Code, and/or board rules related to the practice of engineering.

(4) Agency or Board - Texas Board of Professional Engineers and Land Surveyors.

(5) ANSAC/ABET - Applied and Natural Science Accreditation Commission of ABET. Previously the Applied Science Accreditation Commission (ASAC) of ABET.

(6) Applicant - A person applying for a license or registration to practice professional engineering or land surveying or a firm applying for a certificate of registration to offer or provide professional engineering or land surveying services.

(7) Application - The forms, information, and fees necessary to obtain a license, registration, or certification issued by the Board.

(8) Complainant - Any party who has filed a complaint with the board against a person or entity subject to the jurisdiction of the board.

(9) Construction estimate - As used in §1071.004, a depiction of a possible easement route for planning purposes.

(10) Contested case - A proceeding, including but not restricted to rate making and licensing, in which the legal rights, duties, or privileges of a party are to be determined by an agency after an opportunity for adjudicative hearing pursuant to the Administrative Procedure Act, Chapter 2001, Texas Government Code.

(11) Direct supervision - The control over and detailed professional knowledge of the work prepared under the engineer or land surveyor's supervision. Direct Supervision entails that the engineer or land surveyor personally makes decisions or personally reviews and approves proposed decisions prior to their implementation and has control over the decisions either through physical presence or the use of communications devices. Direct Supervision entails that a land surveyor be able to give instructions for research of adequate thoroughness to support collection of relevant data, the placement of all monuments, and the preparation and delivery of all surveying documents.

(12) EAC/ABET - Engineering Accreditation Commission of ABET.

(13) EAOR number - An engineering advisory opinion request file number assigned by the executive director to a pending advisory opinion in accordance with this chapter.

(14) Electronic Seal - For the purposes of this Chapter, an electronic seal is a digital representation of a licensee or registrant's seal including, but not limited to, a digital scan of a physical seal.

(15) Electronic Signature - For the purposes of this Chapter, an electronic signature is a digital representation of a licensee or registrant's signature including, but not limited to, a digital scan of a physical signature.

(16) Engineering - The profession in which a knowledge of the mathematical, physical, engineering, and natural sciences gained by education, experience, and practice is applied with judgment to develop ways to utilize, economically, the materials and forces of nature for the benefit of mankind.

(17) Engineering Act - The Texas Engineering Practice Act, Texas Occupations Code Chapter 1001.

(18) ETAC/ABET - Engineering Technology Accreditation Commission of ABET.

(19) Firm - Any business entity that engages or offers to engage in the practice of professional engineering or land surveying in this state. The term includes but is not limited to companies, corporations, partnerships, or joint stock associations, and for engineering also includes sole practitioners and sole proprietorships.

(20) Good Standing - (License or Registration) - A license or registration that is current, eligible for renewal, and has no outstanding fees or payments.

(21) Gross negligence - Any deliberate conduct, or pattern of conduct, whether by act or omission that demonstrates a disregard or indifference to the rights, health, safety, welfare, and property of the public or clients. Gross negligence may result in financial loss, injury or damage to life or property, but such results need not occur for the establishment of such conduct.

(22) License - The legal authority permitting the holder to actively practice engineering or land surveying. Also, a certificate issued by the board showing such authority.

(23) License Holder - Any person whose license or registration to practice engineering or land surveying is current.

(24) Misconduct - The violation of any provision of the Texas Engineering Practice Act, the Professional Land Surveying Act, or board rules.

(25) NAFTA - North American Free Trade Agreement. NAFTA is related to the practice and licensure of engineering through mutual recognition of registered/licensed engineers by jurisdictions of Canada, Texas, and the United Mexican States.

(26) NCEES - National Council of Examiners for Engineering and Surveying.

(27) Person - Any individual, firm, partnership, corporation, association, governmental subdivision, or public or private organization of any character other than a governmental agency.

(28) Professional engineering - Professional service which may include consultation, investigation, evaluation, planning, designing, or direct supervision of construction, in connection with any public or private utilities, structures, buildings, machines, equipment, processes, works, or projects wherein the public welfare, or the safeguarding of life, health, and property is concerned or involved, when such professional service requires the application of engineering principles and the interpretation of engineering data.

(29) Professional Engineering Services - Services which meet the definition of the practice of engineering as defined in the Act, §1001.003, and which are required by statute or rule to be performed by or under the direct supervision of a licensed engineer. A service shall be conclusively considered a professional engineering service if it is delineated in that section; other services requiring a professional engineer by contract, or services where the adequate performance of that service requires an engineering education, training, or experience in the application of special knowledge or judgment of the mathematical, physical or engineering sciences to that service are also considered a professional engineering service.

(30) Professional Surveying - The practice of land, boundary, or property surveying or other similar professional practices.

(31) Recognized institution of higher education--An institution of higher education as defined in §61.003, Education Code; or in the United States, an institution recognized by one of the six regional accrediting associations, specifically, the New England Association of Schools and Colleges, the North Central Association Commission on Accreditation and School Improvement, the Northwest Association of Schools and Colleges, the Southern Association of Colleges and Schools, the Western Association of Schools and Colleges, or the Middle States Association of Colleges & Schools; or, outside the United States, an institution recognized by the Ministry of Education or the officially recognized government education agency of that country; or a program accredited by ABET.

(32) Registration - The legal authority permitting the holder to actively practice engineering or land surveying. Also, a certificate issued by the board showing such authority.

(33) Respondent - The person or party that is the subject of a complaint filed with the board.

(34) Responsible charge - Synonymous with the term "direct supervision"; used interchangeably with "direct supervision".

(35) Responsible supervision - An earlier term synonymous with the term "direct supervision;" the term is still valid and may be used interchangeably with "direct supervision" when necessary.

(36) Seal - An embossed, stamped, or electronic design authorized by the Board that authenticates, confirms, or attests that a person is authorized to offer and practice engineering or land surveying services to the public in the State of Texas and has legal consequence when applied.

(37) Sole Practitioner - A firm that consists of an individual license holder with no other employees.

(38) Supervision of Engineering Construction - As used in §1001.407 of the Act, includes the periodic observation of materials and completed work to determine general compliance with plans, specifications and design and planning concepts. Supervision of engineering construction does not include the construction means and methods; responsibility for the superintendence of construction processes, site conditions, operations, equipment, personnel; or the maintenance of a safe place to work or any safety in, on or about the site.

(39) Surveying Act - the Professional Land Surveying Practices Act, Texas Occupations Code Chapter 1071.

(40)Surveying Report - Survey drawing, written description, and/or separate narrative depicting the results of a land survey performed and conducted pursuant to this Act.

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 July 27, 2020.

TRD-202003045

Lance Kinney

Executive Director

Texas Board of Professional Engineers and Land Surveyors

Earliest possible date of adoption: September 6, 2020

For further information, please call: (512) 440-3080


SUBCHAPTER B. ADMINISTRATION AND THE BOARD [ORGANIZATION OF THE BOARD STAFF]

22 TAC §§131.3, 131.5, 131.7, 131.9, 131.11, 131.15

STATUTORY AUTHORITY

The rules are proposed pursuant to Texas Occupations Code §§1001.101 and 1001.202, which authorize the Board to regulate engineering and land surveying and 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 practices of engineering and land surveying in this state. The proposed rules also comply with HB 1523.

No other codes, articles, or statutes are affected by this proposal.

§131.3.Headquarters of the Board.

The headquarters and administrative office of the Texas Board of Professional Engineers and Land Surveyors (board) is located at 1917 South Interstate 35, Austin, Texas 78741-3702.

§131.5.Board Seal.

The seal of the board shall be an embossed circular seal consisting of two concentric circles. The diameter of the inner circle shall be approximately 60% of the size of the outer circle which shall be the official seal of the State of Texas. The area between the two circles shall contain the wording "Texas Board of Professional Engineers and Land Surveyors." The executive director shall be the custodian of the seal. The seal may be reproduced in other sizes provided the dimensions remain proportionate.

§131.7.Organization of the Board.

(a) In accordance with Texas Occupations Code, Chapter 1001, the board shall consist of members appointed by the Governor with the advice and consent of the Senate. The board shall also have as a member the commissioner of the General Land Office or a licensed state land surveyor employee of the General Land Office designated by the commissioner as director of surveying who shall serve as an ex officio, nonvoting member of the board.

(b) The governor shall designate a member of the board as the presiding officer of the board to serve in that capacity at the will of the governor. The presiding officer shall be the Chair of the board.

(c) The terms of board members appointed by the Governor shall be six years in length and shall be staggered so that the terms of not more than one-third of the members shall expire in a single calendar year. The terms of two members who are either [practicing] licensed engineers or registered land surveyors and one member who is a representative of the public expire on August 31 of each odd-numbered year. Upon completion of a term, a member may continue to serve until a successor has been appointed. A member may be reappointed to successive terms at the discretion of the Governor.

(d) The board shall elect from its own membership a vice chair, secretary, and treasurer. These officers shall serve from September 1 through August 31 and shall be elected annually at a board meeting prior to September 1.

(e) The board as a whole may act as an executive committee.

(f) Five voting members of the board shall constitute a quorum.

(g) The board may transact official business only when in session with a quorum present and shall not be bound in any way by any statement or action on the part of any individual member except when such statement or action is in pursuance of specific instructions of the board. No order or decree shall be adopted by the board except in open meeting and in accordance with the Texas Government Code, Chapter 551.

§131.9.Officers of the Board.

(a) Chair of the Board. The presiding officer shall be the chair of the board. When present, the chair shall preside at all meetings. The chair shall appoint such committees required by statute or rule and may appoint any additional committees as needed. The chair shall perform all other duties usually pertaining to the office of chair and permitted by law[,] and shall have the authority to delegate any of those duties to the executive director. The chair shall have the authority to review the performance of the executive director and initiate alterations in the executive director's job requirements or employment status. The chair shall select and determine the agenda for meetings of the full board and may delegate that authority to the executive director.

(b) Vice Chair of the Board. The vice chair, in the absence of the chair, shall perform the duties of the chair as specified in subsection (a) of this section. In the event the office of the chair shall become vacant, the vice chair shall serve until a new presiding officer has been appointed by the governor.

(c) Pro Tem Chair of the Board. In the absence of the chair and vice chair from a regular or special meeting of the board, the remaining members, providing there is a quorum, shall elect a chair who shall serve until the conclusion of the meeting or until the arrival of the chair or vice chair.

(d) Secretary of the Board. The secretary of the board is charged with carrying out the duties prescribed in the Act, §1001.211 and §1001.308 and may delegate those duties prescribed in §1001.211 to the executive director.

(e) Treasurer of the Board. The treasurer of the board is charged with advising the board on budgetary and financial matters and carrying out any duties delegated by the board.

§131.11.Board Member Responsibilities and Duties.

(a) Each board member shall meet and maintain the qualifications for board membership as set by Texas Occupations Code Chapter 1001.[§1001.101 and §1001.102 of the Act.]

(b) Each board member [appointed after September 1, 2003] shall complete [attend a] board member training prior to attendance and participation in a board or committee meeting.

(c) A board member is subject to the provisions of §1001.106 of the Act relating to grounds for removal.

(d) In order to be reimbursed for travel, [for] other than travel to board and committee meetings, a board member shall have the approval of the chair or full board or executive director.

(e) Each member of the board shall receive per diem as provided by law for each day that the member engages in the business of the board and will be reimbursed for travel expenses incurred in accordance with the state of Texas and board's travel policies.

(f) A board member who participated in the investigation of a complaint or in informal settlement negotiations regarding the complaint:

(1) may not vote on the matter at a board meeting related to the complaint; and

(2) shall state at the meeting and record in the minutes why the member is prohibited from voting on the matter.

(g) Board members shall submit an activity report that shall document the board member's activities related to the board that have occurred since the previous activity report was submitted including activities that occurred in a meeting that was noticed and held in accordance with the open meeting requirements of Chapter 551 of the Texas Government Code.

§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 up to 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 professions [profession]. Such issues may [might] include engineering or land surveying ethics, professionalism in practice, legislation, board management, and engineering or land surveying business issues.

(2) Licensing and Registration Committee. The committee shall meet no less than twice each fiscal year to evaluate issues and possibly develop proposed actions for the full board on licensing and registration issues. The committee may participate in activities such as evaluating rules concerning licensing of engineers; licensing and registration of land surveyors; evaluating education and continuing education program requirements; conducting personal interviews of applicants; evaluating applications; participating in national and international engineering and land surveying licensing and registration activities on the board's behalf; providing general guidance to the executive director on licensing and registration issues; and evaluating any other issue indirectly or directly relating to engineering or land surveying licensing and registration.

(3) Compliance and Enforcement Committee. The committee shall meet as required to evaluate issues and possibly develop proposed actions for the full board on enforcement issues. The committee may participate in activities such as evaluating rules concerning enforcement of the Acts [ Act]; reviewing the progress of enforcement activities [major enforcement cases or groups of cases]; suggesting sanctions for violations of the Acts [Act]; participation in national and international engineering and land surveying law enforcement activities on the board's behalf; providing general guidance to the executive director on enforcement issues; evaluating continuing education program requirements; and evaluating any other issue indirectly or directly relating to engineering or land surveying law enforcement.

(4) Policy Advisory Opinion Committee. The committee shall meet as required to review, prepare and recommend policy advisory opinions regarding the interpretation or application of the Engineering Act and to perform related activities pursuant to board approval. The committee shall follow the process and procedures for issuing advisory opinions as prescribed in Subchapter H [G] of this chapter (relating to Advisory Opinions).

(5) Legislative Issues Committee. The committee shall meet as needed to consider legislative matters that may affect the practice of engineering and land surveying in the state. Pursuant to the Chapter 556, Texas Government Code, the committee shall not lobby or strive to influence legislation regarding the practice of engineering but meet to consider board responses to pending legislation and assist in answering related inquiries from the Texas Legislature, Governor or other state agency or governmental entity during the legislative session. [The committee shall report to the full board on actions and activities addressed on behalf of the board.]

(b) Nominating Committee. The board's chair shall appoint a nominating committee consisting of the chair and two board members to nominate candidates for the offices of vice chair, secretary, and treasurer. The nominating committee shall meet prior to the regular board meeting prior to September 1 of each year to allow election of officers at that meeting.

(c) Ad Hoc Committees. The board chair, full board, or a standing committee [and its committees] may appoint an ad hoc committee [temporary committees] to assist in resolving particular [engineering] issues.

[(1) The board's chair, board, and/or committee chair may appoint ad hoc committees composed of committee members, other board members, and other persons to address particular issues.]

(1) [(2)] The chair or committee chair shall establish a specific purpose and duration for each ad hoc committee. Ad hoc committees previously appointed may be reappointed in part or in whole for a specific purpose and duration.

(2) [(3)] Ad hoc committees shall be limited to investigating and evaluating issues assigned, and making a report to the full board or appropriate standing committee with recommendations concerning possible board positions, actions or inactions. The board or appropriate standing committee shall receive the report of each ad hoc committee publicly, and shall recommend appropriate action, if any, to the full board.

(d) Advisory Committees. The [chair or] board may appoint [convene the following] committees in an advisory capacity in accordance with §1001.216. [:]

[(1) Educational Advisory Committee. The educational advisory committee shall consist of the deans of the colleges or the department heads or other program administrator for those institutions without a college of engineering or the representatives for the deans or department heads and other invited representatives of the academic community. The committee shall meet as needed and submit any reports or recommendations to the Licensing Committee. The board chair may appoint one or more board members as liaisons to the advisory committee. If requested by the advisory committee, the executive director or staff may act as the secretary for the meeting.]

[(2) Industry Advisory Committee. The industry advisory committee shall consist of practicing engineers from various disciplines and functions in engineering including, but not limited to, consulting, manufacturing, regulatory, research, and utility service. The committee shall meet as needed and submit any reports or recommendations to the General Issues Committee. The board chair may appoint one or more board members as liaisons to the advisory committee. If requested by the advisory committee, the executive director or staff may act as the secretary for the meeting.]

[(3) Governmental Advisory Committee. The governmental advisory committee shall consist of representatives of various governmental agencies, organizations, or jurisdictions that employ professional engineers or use engineering services. The committee shall meet as needed and submit any reports or recommendations to the General Issues Committee. The board chair may appoint one or more board members as liaisons to the advisory committee. If requested by the advisory committee, the executive director or staff may act as the secretary for the meeting.]

(e) Committee actions. The actions of any committee [ the committees] are recommendations only and are not binding until ratification by the board at a regularly scheduled meeting or if authorized by rule.

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 July 27, 2020.

TRD-202003047

Lance Kinney

Executive Director

Texas Board of Professional Engineers and Land Surveyors

Earliest possible date of adoption: September 6, 2020

For further information, please call: (512) 440-3080


SUBCHAPTER C. BOARD STAFF [MEETINGS]

22 TAC §131.31, §131.37

STATUTORY AUTHORITY

The rules are proposed pursuant to Texas Occupations Code §§1001.101 and 1001.202, which authorize the Board to regulate engineering and land surveying and 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 practices of engineering and land surveying in this state. The proposed rules also comply with HB 1523.

No other codes, articles, or statutes are affected by this proposal.

§131.31.Executive Director.

(a) The executive director shall be employed by the board to be the administrator of the agency.

(b) The executive director shall be a licensed professional engineer or registered professional land surveyor, and shall faithfully execute all directives of the board [Texas Board of Professional Engineers] that are within the scope of the board's legal authority.

(c) - (d) (No change.)

§131.37.State Contract Guidelines.

Pursuant to Chapter 2261, Texas Government Code[, §2261.253], the executive director or his/her representative shall establish a written procedure to identify each contract that requires enhanced contract or performance monitoring and submit information on the contract to the Board.

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 July 27, 2020.

TRD-202003048

Lance Kinney

Executive Director

Texas Board of Professional Engineers and Land Surveyors

Earliest possible date of adoption: September 6, 2020

For further information, please call: (512) 440-3080


SUBCHAPTER D. MEETINGS [FISCAL MATTERS]

22 TAC §§131.41, 131.43, 131.45

STATUTORY AUTHORITY

The rules are proposed pursuant to Texas Occupations Code §§1001.101 and 1001.202, which authorize the Board to regulate engineering and land surveying and 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 practices of engineering and land surveying in this state. The proposed rules also comply with HB 1523.

No other codes, articles, or statutes are affected by this proposal.

§131.41.Meetings [Open To The Public].

All meetings of the board and standing committees shall be held in accordance with Chapter 551, Texas Government Code.

§131.43.Public Participation.

(a) (No change.)

(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) (No change.)

(d) 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.)

§131.45.Regular Board Meetings.

The board shall hold a minimum of two regular meetings each calendar year. [Board meetings shall take place at the headquarters of the board or at other places as designated by the board.]

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 July 27, 2020.

TRD-202003049

Lance Kinney

Executive Director

Texas Board of Professional Engineers and Land Surveyors

Earliest possible date of adoption: September 6, 2020

For further information, please call: (512) 440-3080


SUBCHAPTER F. ADMINISTRATION

22 TAC §131.81

STATUTORY AUTHORITY

The rules are proposed pursuant to Texas Occupations Code §§1001.101 and 1001.202, which authorize the Board to regulate engineering and land surveying and 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 practices of engineering and land surveying in this state. The proposed rules also comply with HB 1523.

No other codes, articles, or statutes are affected by this proposal.

§131.81.Definitions.

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 July 27, 2020.

TRD-202003052

Lance Kinney

Executive Director

Texas Board of Professional Engineers and Land Surveyors

Earliest possible date of adoption: September 6, 2020

For further information, please call: (512) 440-3080


SUBCHAPTER G. ADMINISTRATION [ADVISORY OPINIONS]

22 TAC §131.85

STATUTORY AUTHORITY

The rules are proposed pursuant to Texas Occupations Code §§1001.101 and 1001.202, which authorize the Board to regulate engineering and land surveying and 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 practices of engineering and land surveying in this state. The proposed rules also comply with HB 1523.

No other codes, articles, or statutes are affected by this proposal.

§131.85.Board Rules Procedures.

(a) - (g) (No change.)

(h) The board may not adopt a rule related to the scope of practice of, the professional or technical standards for, or the standards of conduct and ethics for land surveyors before considering advice and recommendations from the surveying advisory committee described in §1001.216 of the Act.

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 July 27, 2020.

TRD-202003050

Lance Kinney

Executive Director

Texas Board of Professional Engineers and Land Surveyors

Earliest possible date of adoption: September 6, 2020

For further information, please call: (512) 440-3080


SUBCHAPTER H. ENGINEERING ADVISORY OPINIONS [ALTERNATIVE DISPUTE RESOLUTION]

22 TAC §131.101, §131.103

STATUTORY AUTHORITY

The rules are proposed pursuant to Texas Occupations Code §§1001.101 and 1001.202, which authorize the Board to regulate engineering and land surveying and 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 practices of engineering and land surveying in this state. The proposed rules also comply with HB 1523.

No other codes, articles, or statutes are affected by this proposal.

§131.101.Subject of an Advisory Opinion.

On its own initiative or at the request of any interested person, the board shall prepare a written advisory opinion about:

(1) an interpretation of the Engineering Act; or

(2) the application of the Engineering Act to a person in regard to a specified existing or hypothetical factual situation.

§131.103.Request for an Advisory Opinion.

(a) A request for an advisory opinion shall include, at a minimum, sufficient information in order for the board to provide a complete response to the request. The requestor must provide the following, as applicable:

(1) requestor contact information;[,]

(2) affected section(s) of the Engineering Act and/or board rules;[,]

(3) description of the situation;[,]

(4) reason engineering advisory opinion is requested; [,]

(5) parties or stakeholders that will be affected by the opinion, if known;[,] and

(6) any known, pending litigation involving the situation.

(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 July 27, 2020.

TRD-202003051

Lance Kinney

Executive Director

Texas Board of Professional Engineers and Land Surveyors

Earliest possible date of adoption: September 6, 2020

For further information, please call: (512) 440-3080


CHAPTER 134. LICENSING, REGISTRATION, AND CERTIFICATION FOR SURVEYORS

The Texas Board of Professional Engineers and Land Surveyors (Board) proposes new rules to 22 Texas Administrative Code, Chapter 134, specifically §§134.1, 134.3, 134.5, 134.11. 134.21, 134.23, 134.25, 134.27, 134.29, 134.31, 134.35, 134.37, 134.41, 134.43, 134.51, 134.53, 134.55, 134.61, 134.65, 134.67 - 134.69, 134.71, 134.73, 134.75, 134.81, 134.83, 134.87, 134.89, 134.91, 134.93, 134.95, and 134.97, regarding the licensure and registration process for professional land surveyors in Texas. These proposed changes are referred to as "proposed rules."

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The rules under 22 Texas Administrative Code Chapter 134 implement Texas Occupations Code, Chapter 1001, the Texas Engineering Practice Act, and Occupations Code, Chapter 1071, the Professional Land Surveying Practices Act.

The proposed rules implement necessary changes as required by House Bill (HB) 1523, 86th Legislature, Regular Session (2019), related to the merger of operations of the Texas Board of Professional Engineers and the Texas Board of Professional Land Surveying into the Texas Board of Professional Engineers and Land Surveyors (TBPELS).

As required by HB 1523, the operations of the two agencies have been merged into one, including the registration of Surveyors-in-Training (SIT) and Registered Professional Land Surveyors (RPLS), and the licensure of Licensed State Land Surveyors (LSLS). The previous agency rules (22 Texas Administrative Code, Chapter 661), related to registration of land surveyors, have been merged into Chapter 134 per the guidance of the Secretary of State. These rules have been formatted to be similar to the licensure rules for engineers (Chapter 133) and edits made for format and clarity.

SECTION-BY-SECTION SUMMARY

The proposed rules create a new section, §134.1, concerning the general process for obtaining an SIT designation. Texas Board of Professional Land Surveying (TBPLS) rule, 22 Texas Administrative Code §661.41, addresses all land surveyor license types. This new rule only addresses SIT and provides general information on the processing of applications to obtain this type of certification, thereby making it easier for someone interested in this type of certification to locate the rules that apply to this certification type.

The proposed rules create a new section, §134.3, concerning the requirements to obtain a SIT certification and general information concerning this certification. This includes the examination required, expiration of an SIT certification, and certification renewal process. This rule consolidates requirements for an SIT certification found in TBPLS rules §661.41 and §661.51, thereby making it easier to locate the rules applying to this certification type.

The proposed rules create a new section, §134.5, concerning Surveyor-in-Training experience requirements. Many of the SIT experience requirements found in TBPLS rule §661.50 have been moved to this new chapter that concerns certification of SITs. This new rule makes it easier to locate the rules applying to an SIT.

The proposed rules create a new section, §134.11, concerning types of surveyor registrations and licenses. It identifies the types of licenses and registrations. It states that applications that do not meet requirements will be denied.

The proposed rules create a new section, §134.21, concerning the application process for a standard registration as a professional land surveyor (RPLS). It streamlines the application process and adds the requirement for fingerprinting for criminal background checks. It conforms with many of the application requirements for obtaining a professional engineer license.

The proposed rules create a new section, §134.23, concerning the application process for a former standard registration as a professional land surveyor (RPLS). It describes the application requirements needed to update information and verify qualifications to issue a new registration. It makes it easier for former standard registration holders to obtain a license, thereby removing many of the previous barriers to licensure.

The proposed rules create a new section, §134.25, concerning the application process for an applicant who holds an out-of-state registration. This new rule streamlines the process for obtaining a Texas license by consolidating many of the requirements found in §661.41 and §661.47 of the TBPLS rules concerning out-of-state applicants. This rule conforms with the requirements of out-of-state engineers applying for a Texas license.

The proposed rules create a new section, §134.27, concerning the application process for a Licensed State Land Surveyor (LSLS). The TBPLS surveyor rules did not describe the LSLS process as pointed out by the TBPLS 2019 Sunset Commission report. These rules document the current process and requirements utilized by the TBPLS and were developed in consultation with the General Land Office.

The proposed rules create a new section, §134.29, concerning the temporary license process for military spouses who are licensed or registered in another state. This section implements Senate Bill (SB) 1200, 86th Legislature, Regular Session (2019), which amends Texas Occupations Code, Chapter 55, to authorize a military spouse to engage in a business or occupation for which a license is required, without obtaining the applicable license, if the military spouse is currently licensed in good standing by another jurisdiction that has licensing requirements that are substantially equivalent to the licensing requirements in Texas. SB 1200 also authorizes a licensing agency to issue a license to a military spouse who meets such requirements. It conforms with the requirements of engineering rule §133.29, which was adopted in March 2020.

The proposed rules create a new section, §134.31, concerning educational requirements for applicants. Unlike TBPLS rule §661.41 that addressed the multiple requirements for applications, this rule makes it easier for applicants to find the education requirements by listing them in a separate rule

The proposed rules create a new section, §134.35, concerning proof of educational requirements for applicants. Unlike TBPLS rule §661.41, which addressed the multiple requirements for applications, this rule makes it easier for applicants to find the necessary proof of educational qualifications by listing them in a separate rule

The proposed rules create a new section, §134.37, requiring that educational documents for registration be in English. Unlike TBPLS rule §661.41, which addressed the multiple requirements for applications, this rule makes it easier for applicants to find the requirement that non-English documents supporting application be translated to English.

The proposed rules create a new section, §134.41, concerning supplementary experience records for applicants. Unlike TBPLS rule §661.4, which addressed the multiple requirements for applications, this rule makes it easier for applicants to find the requirements for supplementary experience by listing them in a separate rule.

The proposed rules create a new section, §134.43, concerning the experience evaluation process for applicants. It consolidates TBPLS rules §§661.41, 661.50, and 661.53 by providing one rule that addresses the evaluation of supplementary experience.

The proposed rules create a new section, §134.51, concerning reference providers for applicants. In addition to the requirements of TBPLS rule §661.43, this rule adds the additional requirement that the reference must not receive compensation for providing a reference.

The proposed rules create a new section, §134.53, concerning reference statements for applicants. Although this rule is largely based on TBPLS rule, it provides a more detailed process for submitting a reference, states that there are repercussions if an applicant retaliates against a reference, and permits an NCEES record reference document to serve as a reference statement.

The proposed rules create a new section, §134.55, concerning references for applicants. It conforms with TBPLS rule §661.43.

The proposed rules create a new section, §134.61, concerning examinations and the general examination process for applicants. Unlike TBPLS rule §661.45, which addressed the multiple requirements for examinations, this rule makes it easier for applicants to find the process requirements for surveying exams.

The proposed rules create a new section, §134.65, concerning the examination on the Fundamentals of Surveying. It consolidates portions of TBPLS rules §661.41 and §661.45 by creating a rule that only addresses the Fundamentals of Surveying exam. This makes it easier for an applicant to locate the rule that addresses this exam because the information is contained in one rule.

The proposed rules create a new section, §134.67, concerning the examination on the Principles and Practice of Surveying. It consolidates portions of TBPLS rules §661.41 and §661.45 by creating a rule that only addresses the Principles and Practice of Surveying exam. In addition to the examination developed by the TBPELS, the proposed rules expand the examination options to include the Principles and Practice of Surveying exam offered by the National Council of Examiners for Engineering and Surveying (NCEES). This addition was noted by the TBPLS 2019 Sunset Commission report. After review of the various examination options, the Surveying Advisory Committee and the Board concurred to move forward with moving to this exam option. By creating a single rule that addresses the Principles and Practice of Surveying exam, it easier for an applicant to locate the rule.

The proposed rules create a new section, §134.68, concerning the examination required for licensure as a Licensed State Land Surveyor (LSLS). Unlike TBPLS rule §661.45, which addressed the multiple examinations, this rule makes it easier for applicants to find the requirements for LSLS exam by addressing the exam in a single rule. This rule was developed in consultation with the General Land Office.

The proposed rules create a new section, §134.69, concerning the process for waiver of examination requirements for the Fundamentals of Surveying. Waiver of exams is permitted for out-of-state land surveyors, as authorized by Texas Occupations Code §1071.259, provided they meet certain requirements

The proposed rules create a new section, §134.71, that states that a land surveyor registered in Texas may take the principles and practice of surveying examination for record purposes only if her or she has not passed the exam.

The proposed rules create a new section, §134.73, concerning examination results and analysis. This language has been added to implement Texas Occupations Code §1001.273 for surveying examinations.

The proposed rules create a new section, §134.75, concerning examination irregularities. The rule sets out the process and penalties for violations of examination policies.

The proposed rules create a new section, §134.81, concerning the process for reviewing surveyor applications. The rule sets out the procedure and requirements for staff to process a surveyor application that was not previously described in TBPLS rules. This rule conforms with the engineering application processing rule §133.81.

The proposed rules create a new section, §134.83, concerning the process for the review and evaluation of surveyor applications. The rule sets out the procedure and requirements for staff to review and evaluate a surveyor application that was not previously described in TBPLS rules. This rule conforms with the engineering application processing rule §133.83.

The proposed rules create a new section, §134.87, concerning final actions that can be taken on surveyor applications. The rule sets out the procedure and requirements for staff to review and evaluate a surveyor application that were not previously described in TBPLS rules. This rule conforms with the engineering application processing rule §133.87.

The proposed rules create a new section, §134.89, concerning the processing of administratively withdrawn surveyor applications. The rule sets out the procedure and requirements for staff to review and evaluate a surveyor application that was not previously described in TBPLS rules. This rule conforms with the engineering application processing rule §133.89.

The proposed rules create a new section, §134.91, concerning the reconsideration of denied surveyor applications. This rule describes when a denial may be reconsidered or not reconsidered. The rule sets out the procedure and requirements for staff to review and evaluate a surveyor application that was not previously described in TBPLS rules. This rule conforms with the engineering application processing rule §133.91.

The proposed rules create a new section, §134.93, concerning the process for personal interviews of surveyor applicants and when it is available. The rule sets out the procedure and requirements that were not previously described in TBPLS rules. This rule conforms with the engineering application processing rule §133.93.

The proposed rules create a new section, §134.95, concerning the handling and storage of application files. The rule sets out the procedure and requirements for staff to store and handle surveyor application files that was not previously described in TBPLS rules. This rule conforms with the engineering application processing rule §133.95.

The proposed rules create a new section, §134.97, concerning the issuance of a surveyor registration. The rule sets out the procedure and requirements that were not previously described in TBPLS rules. This rule conforms with the engineering application processing rule §133.83.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Dr. Lance Kinney, Ph.D., P.E., Executive Director for the Board, has determined that for each year of the first five years the proposed rules are in effect, there are no estimated additional costs or reductions in costs to state or local government as a result of enforcing or administering the proposed rules. The rules impose no additional costs. HB 1523 transferred regulatory authority from TBPLS to TBPELS, and these rules merely reflect that transfer of authority.

Dr. Kinney has determined that for each year of the first five years the proposed rules are in effect, there is no estimated increase or loss in revenue to the state or local government as a result of enforcing or administering the proposed rule.

LOCAL EMPLOYMENT IMPACT STATEMENT

Dr. Kinney has determined that the proposed rules will not affect the local economy, so the agency is not required to prepare a local employment impact statement under Government Code §2001.022.

PUBLIC BENEFITS

Dr. Kinney has determined that for each year of the first five-year period the proposed rules are in effect, the public benefit will be the clear requirements for the efficient and effective registration and licensure of professional land surveyors by the Texas Board of Professional Engineers and Land Surveyors in accordance with HB 1523 and Texas Occupations Code chapters 1001 and 1071.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL

Dr. Kinney has determined that for each year of the first five-year period the proposed rules are in effect, the rules related to registration do not make substantive changes to the registration process and have no additional costs for registrants or the agency. The National Professional Surveying examination is more expensive than the current RPLS exam ($150 for current exam; National exam is $300) and will impact new RPLS applicants (<100 applicants annually).

FISCAL IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES

There will be no adverse effect on small businesses, micro-businesses, or rural communities as a result of the proposed rules. Since the agency has determined that the proposed rules will have no adverse economic effect on small businesses, micro-businesses, or rural communities, preparation of an Economic Impact Statement and a Regulatory Flexibility Analysis, as detailed under Texas Government Code §2006.002, is not required.

ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT

The proposed rules do not have a fiscal note that imposes a cost on regulated persons, including another state agency, a special district, or a local government. Therefore, the agency is not required to take any further action under Government Code §2001.0045.

GOVERNMENT GROWTH IMPACT STATEMENT

Pursuant to Government Code §2001.0221, the agency provides the following Government Growth Impact Statement for the proposed rules.

HB 1532 transferred the regulation of land surveying to the TBPELS, and these rules reflect a transfer of that regulatory authority from the former Board of Professional Land Surveying to the TBPELS without any growth in government. Therefore, for each year of the first five years the proposed rules are in effect, the agency has determined the following:

1. The proposed rules do not create or eliminate a government program.

2. Implementation of the proposed rules does not require the creation of new employee positions or the elimination of existing employee positions.

3. Implementation of the proposed rules does not require an increase or decrease in future legislative appropriations to the agency.

4. The proposed rules do not require an increase or decrease in fees paid to the agency.

5. The proposed rules do not create a new regulation.

6. The proposed rules do not expand, limit, or repeal a regulation, except as provided by HB 1532, which transferred the regulation of land surveying to the TBPELS, and these rules reflect a transfer of that regulatory authority from the former Board of Professional Land Surveying to the TBPELS.

7. The proposed rules do not increase the number of individuals subject to the rule's applicability.

8. The proposed rules do not positively or adversely affect this state's economy.

TAKINGS IMPACT ASSESSMENT

The Board has determined that no private real property interests are affected by the proposed rules and the proposed rules do not restrict, limit, or impose a burden on an owner's rights to his or her private real property that would otherwise exist in the absence of government action. As a result, the proposed rules do not constitute a taking or require a takings impact assessment under Government Code §2007.043.

ENVIRONMENTAL RULE ANALYSIS

The Board has determined that the proposed rules are not brought with the specific intent to protect the environment or reduce risks to human health from environmental exposure; thus, the Board asserts the proposed rules are not a "major environmental rule," as defined by Government Code §2001.0225. As a result, the Board asserts preparation of an environmental impact analysis, as provided by §2001.0225, is not required.

PUBLIC COMMENTS

Any comments or request for a public hearing may be submitted, no later than 30 days after the publication of this notice, to Lance Kinney, Ph.D., P.E., 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. SURVEYOR-IN-TRAINING

22 TAC §§134.1, 134.3, 134.5

STATUTORY AUTHORITY

The rules are proposed pursuant to Texas Occupations Code §§1001.101 and 1001.202, which authorize the Board to regulate engineering and land surveying and make and enforce all rules and regulations and bylaws consistent with the Act and Texas Occupations Code §1071 as necessary for the performance of its duties, the governance of its own proceedings, and the regulation of the practices of engineering and land surveying in this state. They are also proposed pursuant to Texas Occupations Code §1001.204, which authorizes the Board to assess fees under Texas Occupations Code chapter 1071 including, but not limited to, registration fees. No other codes, articles, or statutes are affected by this proposal.

§134.1.Surveyor-In-Training Designation.

The board shall receive, evaluate and process all applications for certification as a Surveyor-in-Training (SIT) received from individuals who meet the educational and experience requirements of §1071.253 of the Surveying Act. Once an application is approved and an applicant has successfully passed the examination on the fundamentals of surveying he or she will be issued a certification as a surveyor-in-training. This certification does not entitle an individual to practice as a registered professional land surveyor.

§134.3.Surveyor-In-Training Application And Certification.

(a) To be eligible become as a surveyor-in-training (SIT), an individual must:

(1) submit an SIT application in a format prescribed by the Board;

(2) submit an official transcript in accordance with Subchapter D of this chapter (relating to Education);

(3) submit experience information in accordance with §134.5 of this chapter (relating to Surveyor-In-Training Experience Requirements);

(4) submit a minimum of three reference statements conforming to §134.51 of this chapter (relating to Reference Providers); and

(5) pay the fee as established by the Board.

(b) Once the requirements of (a)(1) - (5) of this section have been received and approved, the applicant will be approved to take the Fundamentals of Surveying examination per §134.65 of this title (relating to Examination on the Fundamentals of Surveying).

(c) A certificate as a surveyor-in-training expires eight years from the date of issuance. Although the certificate has an expiration date, the records of the Board will indicate that an individual has passed the Fundamentals of Surveying examination and these records will be maintained in the file indefinitely and will be made available as requested by the individual or another licensing jurisdiction.

(d) The certificate may be renewed upon receipt of an application in a format prescribed by the Board, payment of the SIT certification fee established by the Board, and completion of 32 hours of acceptable continuing education per §138.17 of this title (related to Continuing Education).

(e) Effective September 1, 2019, official transcripts will be kept on file and an SIT may request its use when filing the registered professional land surveyor application.

(f) If the applicant for SIT certification does not submit all documents required within 90 days of the original application date, the application shall expire and the applicant must reapply and pay a new application fee.

§134.5.Surveyor-In-Training Experience Requirements.

The following standards are to be used in evaluating the experience required for the surveyor in training:

(1) All experience must be obtained under the direction and guidance of one or more Registered Professional Land Surveyors (RPLS).

(2) Experience is to be obtained in the area of boundary surveying and boundary determination only. Adequate documentation of the conditions of employment as well as the type of experience gained therein will be required.

(3) The applicant is solely responsible for the documentation necessary to verify the acceptable completion of the required experience. The Board will furnish a form, which will be completed by the applicant and signed by both the applicant and the designated RPLS for verification. This form will require the applicant to describe the specific experience that he or she has obtained.

(4) All experience to be counted toward certification as an SIT must be verified in writing by one or more RPLS with direct supervision or knowledge of the experience claimed per Subchapter E of this chapter (related to Experience).

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 July 24, 2020.

TRD-202003024

Lance Kinney

Executive Director

Texas Board of Professional Engineers and Land Surveyors

Earliest possible date of adoption: September 6, 2020

For further information, please call: (512) 440-3080


SUBCHAPTER B. PROFESSIONAL SURVEYOR REGISTRATION

22 TAC §134.11

STATUTORY AUTHORITY

The rule is proposed pursuant to Texas Occupations Code §§1001.101 and 1001.202, which authorize the Board to regulate engineering and land surveying and make and enforce all rules and regulations and bylaws consistent with the Act and Texas Occupations Code §1071 as necessary for the performance of its duties, the governance of its own proceedings, and the regulation of the practices of engineering and land surveying in this state. It is also proposed pursuant to Texas Occupations Code §1001.204, which authorizes the Board to assess fees under Texas Occupations Code chapter 1071 including, but not limited to, registration fees. No other codes, articles, or statutes are affected by this proposal.

§134.11.Types of Surveyor License and Registration.

The board shall receive, evaluate and process all applications for registration as a Registered Professional Land Surveyor (RPLS) or Licensed State Land Surveyor (LSLS) received from individuals who assert through the application process that he or she meets the minimum requirements of the Surveying Act. The board shall deny a registration or license to any applicant found not to have met all requirements of the Surveying Act and board rules.

(1) Standard Registration. All initial surveying licenses or registrations issued by the board shall be considered standard licenses or registrations.

(2) Reciprocal Registration. An applicant who holds a surveying license or registration from another U.S. jurisdiction may apply via the reciprocal registration process set forth in §134.25 of this chapter.

(3) Temporary License or Registration. The board does not issue any temporary surveyor registration at this time.

(4) Provisional License or Registration. The board does not issue provisional surveyor registration at this time.

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 July 24, 2020.

TRD-202003025

Lance Kinney

Executive Director

Texas Board of Professional Engineers and Land Surveyors

Earliest possible date of adoption: September 6, 2020

For further information, please call: (512) 440-3080


SUBCHAPTER C. LAND SURVEYOR APPLICATION REQUIREMENTS

22 TAC §§134.21, 134.23, 134.25, 134.27, 134.29

STATUTORY AUTHORITY

The rules are proposed pursuant to Texas Occupations Code §§1001.101 and 1001.202, which authorize the Board to regulate engineering and land surveying and make and enforce all rules and regulations and bylaws consistent with the Act and Texas Occupations Code §1071 as necessary for the performance of its duties, the governance of its own proceedings, and the regulation of the practices of engineering and land surveying in this state. They are also proposed pursuant to Texas Occupations Code §1001.204, which authorizes the Board to assess fees under Texas Occupations Code chapter 1071 including, but not limited to, registration fees. No other codes, articles, or statutes are affected by this proposal.

§134.21.Application for Standard Registration.

(a) To be eligible for registration as a registered professional land surveyor (RPLS), an individual must submit a completed application.

(b) All applicants must hold a current Texas Surveyor-In-Training (SIT) certification and have passed the examination on the fundamentals of surveying before submitting an application for registration as an RPLS.

(c) Applicants must speak and write the English language. Proficiency in English may be evidenced by possession of an accredited degree taught exclusively in English, or passage of the Test of English as a Foreign Language (TOEFL) with a written score of at least 550, a computer based score of at least 200, or an internet-based score of at least 95, or other evidence such as significant academic or work experience in English, that is acceptable to the executive director.

(d) Applicants for a registration shall submit:

(1) an application in a format prescribed by the board including:

(A) his or her full, legal and complete name without abbreviations, nicknames, or other variations of the full legal name. If applicable, the applicant shall submit proof of a legal name change including but not limited to a marriage certificate, passport, current Driver's License issued by the State of Texas, court documents, or nationalization documents to substantiate other documentation submitted in the application; and

(B) his or her social security number, as required under the Texas Family Code, §231.302;

(2) current application fee as established by the board. Application fees shall be waived for qualifying military service members, military veterans, and military spouses in accordance with Texas Occupations Code Chapter 55;

(3) proof of educational credentials pursuant to Subchapter D of this chapter (relating to Education);

(4) a supplementary experience record that includes at least two years of surveying experience as required under §134.41 of this chapter (relating to Supplementary Experience Record);

(5) a minimum of three reference statements conforming to Subchapter F of this chapter (relating to Reference Documentation);

(6) documentation of passage of examination(s), which may include official verifications from the National Council of Examiners for Engineering and Surveying (NCEES) or other jurisdictions as required under §134.61(g) of this chapter (relating to Surveying Examinations), if applicable;

(7) verification of a current license from another jurisdiction, if applicable;

(8) scores of TOEFL, if applicable;

(9) information regarding any criminal history including any judgments, deferred judgments or pre-trial diversions for a misdemeanor or felony provided in a format prescribed by the board together with copies of any court orders or other legal documentation concerning the criminal charges and the resolution of those charges; and

(10) For applications submitted on or after September 1, 2020, documentation of submittal of fingerprints for criminal history record check as required by Texas Occupations Code §1001.272

(e) At the time the application is filed, an applicant may request in writing that any transcripts, reference statements, evaluations, experience records or other similar documentation previously submitted to the board be included in a current application; however, new or updated information may be required.

(f) The NCEES record may be accepted as verification of an original transcript, licenses held, examinations taken, experience record and reference documentation to meet the conditions of subsection (d)(3) - (7) of this section.

(g) Once an application is accepted for review, the fee shall not be returned, and the application and all submissions shall become a permanent part of the board records.

(h) An applicant who is a citizen of another country shall show sufficient documentation to the board to verify the immigration status for the determination of his or her eligibility for a professional license in accordance with the Personal Responsibility and Work Opportunity Reconciliation Act of 1996.

(i) Once an application under this section is accepted for review, the board will follow the procedures in §134.83 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 as needed. Pursuant to Texas Occupations Code §1001.453, the board may review the license holder's status and take action if the license was obtained by fraud or error or if the license holder may pose a threat to the public's health, safety, or welfare.

§134.23.Applications from Former Standard Registration Holders.

(a) A former standard registration holder, whose original license has been expired for two or more years and who meets the current requirements for licensure, may apply for a new registration.

(b) A former standard registration holder applying for a registration under the current law and rules must have the documentation requested in §134.21 of this chapter (relating to Application for Standard Registration) recorded and on file with the board and may request in writing that any transcripts, reference statements, evaluations, supplementary experience records or other similar documentation previously submitted to the board be applied toward the new application. The applicant shall:

(1) submit a new application in a format prescribed by the board;

(2) pay the application fee established by the board. Application fees shall be waived for qualifying military service members, military veterans, and military spouses in accordance with Texas Occupations Code Chapter 55;

(3) submit an updated supplementary experience record that includes at least the last two years of surveying experience, which may include experience before the previous license expired;

(4) submit a minimum of three reference statements conforming to Subchapter F of this chapter (relating to Reference Documentation), in which a registered professional land surveyor shall verify at least two years of the updated supplementary experience record; and

(5) For applications submitted on or after September 1, 2020, documentation of submittal of fingerprints for criminal history record check as required by §1001.272 of the Act, unless previously submitted to the board.

(c) Once an application from a former standard registration holder is received, the board will follow the procedures in §134.83 of this chapter (relating to Executive Director Review, Evaluation and Processing of Applications) to review and approve or deny the application.

(d) Any license registration issued to a former standard registration holder shall be assigned a new serial number.

(e) Once an application under this section is accepted for review, the board will follow the procedures in §134.83 of this chapter 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 as needed. Pursuant to Texas Occupations Code §1001.453, 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.

§134.25.Application from Out-Of-State Registration Holders.

(a) An applicant who holds a license or registration as a professional land surveyor from another state or U.S. jurisdiction having registration or licensing requirements substantially equivalent to the requirements of Texas may apply for a standard license.

(b) The Board shall determine whether the licensing or registration standards of the governmental authority under which the reciprocal applicant is licensed or registered are substantially equivalent to those standards required in the State of Texas at the time of licensure by the reciprocal state.

(c) If the Board determines that such standards are not substantially equivalent, the Board may require the reciprocal applicant to take and pass an examination not to exceed four (4) hours as required for applicants under §1071.259 of the Surveying Act.

(d) To be eligible for registration as a registered professional land surveyor (RPLS), one must submit a completed application.

(e) Applicants must speak and write the English language. Proficiency in English may be evidenced by possession of an accredited degree taught exclusively in English, or passage of the Test of English as a Foreign Language (TOEFL) with a written score of at least 550, a computer based score of at least 200 or an internet based score of at least 95 or other evidence such as significant academic or work experience in English acceptable to the executive director.

(f) Applicants for a registration shall submit:

(1) an application in a format prescribed by the board and shall:

(A) list his or her full, legal and complete name without abbreviations, nicknames, or other variations of the full legal name. If applicable, the applicant shall submit proof of a legal name change including but not limited to a marriage certificate, passport, current Driver's License issued by the State of Texas, court documents, or nationalization documents to substantiate other documentation submitted in the application; and

(B) list social security number, as required under the Texas Family Code, §231.302;

(2) current application fee as established by the board. Application fees shall be waived for qualifying military service members, military veterans, and military spouses in accordance with Texas Occupations Code Chapter 55;

(3) proof of educational credentials pursuant to Subchapter D of this chapter (relating to Education);

(4) supplementary experience record as required under §134.41 of this chapter (relating to Supplementary Experience Record);

(5) reference statements as required under Subchapter F of this chapter (relating to Reference Documentation); and

(6) documentation of passage of examination(s), which may include official verifications from the National Council of Examiners for Engineering and Surveying (NCEES) or other jurisdictions as required under §134.61(g) of this chapter (relating to Surveying Examinations).

(7) verification of a current license from another jurisdiction;

(8) scores of TOEFL, if applicable;

(9) information regarding any criminal history including any judgments, deferred judgments or pre-trial diversions for a misdemeanor or felony provided in a format prescribed by the board together with copies of any court orders or other legal documentation concerning the criminal charges and the resolution of those charges; and

(10) For applications submitted on or after September 1, 2020, documentation of submittal of fingerprints for criminal history record check as required by Texas Occupations Code §1001.272

(g) The NCEES record may be accepted as verification of an original transcript, licenses held, examinations taken, experience record and reference documentation to meet the conditions of subsection (d)(3) - (7) of this section.

(h) Once an application is accepted for review, the fee shall not be returned, and the application and all submissions shall become a permanent part of the board records.

(i) An applicant who is a citizen of another country shall show sufficient documentation to the board to verify the immigration status for the determination of his or her eligibility for a professional license in accordance with the Personal Responsibility and Work Opportunity Reconciliation Act of 1996.

(j) Once an application under this section is accepted for review, the board will follow the procedures in §134.83 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 as needed. Pursuant to Texas Occupations Code §1001.453 the board may review the license holder's status and take action if the license was obtained by fraud or error or if the license holder may pose a threat to the public's health, safety, or welfare.

§134.27.Application for Licensed State Land Surveyor.

(a) An applicant who holds a registration as a registered professional land surveyor in Texas may apply for a license as licensed state land surveyor.

(b) Applicants for a license shall submit to the board:

(1) an application in a format prescribed by the board;

(2) current application fee as established by the board. Application fees shall be waived for qualifying military service members, military veterans, and military spouses in accordance with Texas Occupations Code Chapter 55;

(3) submit a minimum of three reference statements conforming to Subchapter F of this chapter (relating to Reference Documentation), at least one of which must be from a currently active Licensed State Land Surveyor in good standing; and

(4) verification from the General Land Office (GLO) that the applicant has completed the Licensed State Land Surveyor introduction program provided by the GLO.

(c) Draft Working Sketch and Report. Once the submissions described in subsection (b) of this section are reviewed and determined to be complete by the executive director, the applicant will complete a draft working sketch and report as provided by the board in conjunction with the GLO. The draft working sketch and report will be submitted to the board for review and evaluation. If a draft working sketch is determined to be incomplete or incorrect, the board will provide the applicant with information concerning the noted deficiencies and the applicant will have an opportunity to rectify the deficiencies. Once the draft working sketch and report is determined by the executive director to be complete and acceptable, the applicant will be approved to take the Licensed State Land Surveyor examination.

(d) Licensed State Land Surveyor Examination. An applicant must successfully complete and pass the Licensed State Land Surveyor examination as required by §134.68 of this chapter (relating to Licensed State Land Surveyor Examination).

(e) Oath: After the successful completion and passage of the LSLS examination and prior to the issuance of a license, the applicant must take and submit proof of the completion of the oath as required by §1071.255 of the Surveying Act.

(f) After the completion of the requirements listed above, the applicant will be issued a license as a licensed state land surveyor.

§134.29.Application for Temporary License for Military Spouses who are Licensed or Registered in Another State.

(a) In accordance with §55.0041, Occupations Code, a military spouse who is currently licensed or registered in good standing by a jurisdiction with licensing or registration requirements that are substantially equivalent to the licensing requirements in this state may be issued a temporary license or registration.

(b) To be eligible for the confirmation described in Occupations Code §55.0041(b)(3), the military spouse shall provide the board:

(1) notice on a completed board-approved form, as required by Occupations Code §55.0041(b)(1);

(2) sufficient documentation to verify that the military spouse is currently licensed or registered in another jurisdiction and has no restrictions, pending enforcement actions, or unpaid fees or penalties relating to the license or registration;

(3) proof of the military spouse's residency in this state; and

(4) a copy of the military spouse's identification card.

(c) The board will determine whether the licensing or registration requirements of another jurisdiction are substantially equivalent to the licensing or registration requirements set forth by the board. In determining substantial equivalency, the board will consider factors including education, examinations, experience, and enforcement history.

(d) The board may not charge a fee for the license or registration as set forth in §134.21 of this title (relating to Application for Standard License).

(e) Authority to engage in land surveying.

(1) An individual who receives confirmation from the board, as described in Occupations Code §55.0041(b)(3):

(A) may engage in the practice of land surveying only for the period during which the individual meets the requirements of Occupations Code §55.0041(d); and

(B) must immediately notify the board if the individual no longer meets the requirements of Occupations Code §55.0041(d).

(2) An individual is not required to undergo a criminal history background check to be eligible for the authority granted under this subsection.

(f) Temporary license.

(1) An individual who receives confirmation from the board, as described in Occupations Code §55.0041(b)(3), is eligible to receive a temporary registration to practice land surveying issued by the Board if the individual:

(A) submits a completed application on a board-approved form; and

(B) undergoes and successfully passes a criminal history background check.

(2) A registration issued under this subsection expires annually and may be renewed twice, but expires on the third anniversary of the date the board provided the confirmation described in Occupations Code §55.0041(b)(3) and may not be further renewed.

(g) An individual who engages in the practice of land surveying under the authority, license, or registration established by this section is subject to the enforcement authority granted under Occupations Code, Chapter 51, and the laws and regulations applicable to the practice of land surveying.

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 July 24, 2020.

TRD-202003026

Lance Kinney

Executive Director

Texas Board of Professional Engineers and Land Surveyors

Earliest possible date of adoption: September 6, 2020

For further information, please call: (512) 440-3080


SUBCHAPTER D. EDUCATION

22 TAC §§134.31, 134.35, 134.37

STATUTORY AUTHORITY

The rules are proposed pursuant to Texas Occupations Code §§1001.101 and 1001.202, which authorize the Board to regulate engineering and land surveying and make and enforce all rules and regulations and bylaws consistent with the Act and Texas Occupations Code §1071 as necessary for the performance of its duties, the governance of its own proceedings, and the regulation of the practices of engineering and land surveying in this state. They are also proposed pursuant to Texas Occupations Code §1001.204, which authorizes the Board to assess fees under Texas Occupations Code chapter 1071 including, but not limited to, registration fees. No other codes, articles, or statutes are affected by this proposal.

§134.31.Educational Requirement for Applicants.

(a) Applicants for certification as a surveyor-in-training shall have graduated from at least one of the educational programs or program combinations listed in §1071.253 of the Surveying Act.

(b) Applicants for registration as a registered professional land surveyor shall have graduated from at least one of the educational programs or degree program combinations listed in §1071.254 of the Surveying Act.

(c) The Board will accept degrees conferred by programs accredited or approved by the (ABET), Applied and Natural Science Accreditation Commission (ANSAC), and other recognized institutions of higher education as described in §131.2 of this title (relating to Definitions).

(d) Degrees not accredited per subsection (c) of this section must be evaluated at the expense of the applicant by an organization approved by the Board.

§134.35.Proof of Educational Qualifications-Accredited/Approved Programs.

(a) An applicant for certification or registration shall provide to the board an official transcript for each degree or coursework to be relied upon to meet the educational requirements for certification or registration.

(b) Transcript(s) shall include either grades or mark sheets and proof that the degree was conferred.

(c) To ensure security of transcripts, each transcript must be received directly from:

(1) the registrar of the institution from which the applicant graduated; or

(2) the National Council of Examiners for Engineering and Surveying (NCEES) or a board approved commercial evaluation service provided the transcripts were forwarded directly to the board from the registrar of the institution from which the applicant graduated.

(d) The applicant is responsible for ordering and paying for all transcripts.

(e) Additional academic information, including but not limited to grades and transfer credit, shall be submitted to the board at the request of the executive director.

§134.37.English Translation.

All documents supporting the application written in language other than English shall be accompanied by a certified English translation.

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 July 24, 2020.

TRD-202003027

Lance Kinney

Executive Director

Texas Board of Professional Engineers and Land Surveyors

Earliest possible date of adoption: September 6, 2020

For further information, please call: (512) 440-3080


SUBCHAPTER E. EXPERIENCE

22 TAC §134.41, §134.43

STATUTORY AUTHORITY

The rules are proposed pursuant to Texas Occupations Code §§1001.101 and 1001.202, which authorize the Board to regulate engineering and land surveying and make and enforce all rules and regulations and bylaws consistent with the Act and Texas Occupations Code §1071 as necessary for the performance of its duties, the governance of its own proceedings, and the regulation of the practices of engineering and land surveying in this state. They are also proposed pursuant to Texas Occupations Code §1001.204, which authorizes the Board to assess fees under Texas Occupations Code chapter 1071 including, but not limited to, registration fees. No other codes, articles, or statutes are affected by this proposal.

§134.41.Supplementary Experience Record.

Applicants shall submit a supplementary experience record to the board as a part of the application. The supplementary experience record is a written summary documenting all of the applicant's land surveying experience used to meet the requirements for registration. The NCEES record experience information may be accepted as all or part of a supplementary experience record.

(1) The supplementary experience record shall be written by the applicant and shall:

(A) provide an overall description of the nature and scope of the work with emphasis on detailed descriptions of the land surveying work;

(B) clearly describe the land surveying work that the applicant personally performed;

(C) delineate the role of the applicant in any group surveying activity; and

(D) include any relevant training or participation in surveying organizations or societies that contribute to the applicant's competence and readiness for registration.

(2) The supplementary experience record shall be divided into employment engagements that correspond to those listed in the application and shall be written in sufficient detail to allow a board reviewer to document the minimum amount of experience required and to allow a reference provider to recognize and verify the quality and quantity of the experience claimed. The record shall include the percentage of time engaged in boundary land surveying as opposed to other types of surveying.

(3) Experience that is unsupported by references may not be considered. All experience claimed to meet the minimum requirements for registration shall be verified by one or more currently licensed or registered professional land surveyors(s) pursuant to §134.51 of this chapter (relating to Reference Providers).

(4) Experience from part-time employment must be accounted for proportionally to a standard 40-hour work week.

(5) The supplementary experience record must cover at least the minimum amount of time needed by the applicant for issuance of a registration as required by §§1071.254 or 1071.259 of the Surveying Act.

(6) No credit will be considered for experience obtained in violation of the Surveying Act or any applicable prior Act governing the surveying profession.

§134.43.Experience Evaluation.

(a) The board shall evaluate the nature and quality of the experience found in the supplementary experience record or the NCEES record experience information and shall determine if the work is satisfactory to the board for the purpose of issuing a license to the applicant. The board shall evaluate the supplementary experience record for evidence of the applicant's competency to be placed in responsible charge of land surveying work of a similar character.

(b) The following standards are to be used in evaluating experience:

(1) All experience must be obtained under the direction and guidance of one or more registered professional land surveyors.

(2) Experience shall be obtained in the area of boundary surveying and boundary determination only.

(3) Experience to be counted toward registration shall be counted from the date the applicant passes the National Council of Examiners for Engineering and Surveying (NCEES) fundamentals of land surveying examination.

(4) The required experience is divided into two types of experience, which are as follows:

(A) Office experience. The required office experience will consist of a minimum of three months of acceptable experience within each of the following categories, herein referred to as "acceptable office experience" for a minimum of one year:

(i) Research of county records and records search;

(ii) Legal principles, boundary reconciliation, and deed sketches;

(iii) Computations/traverse accuracy analysis;

(iv) Documentation/description/monumentation/preparation of final surveys. All two years of the experience requirement may be obtained as office experience.

(B) Field experience. The remaining acceptable experience, if not within the previously listed office experience categories, must be within the categories following:

(i) Field accuracies and tolerances;

(ii) Field traverse notes;

(iii) Monument search based on deed sketches.

(c) In the review of surveying experience, the board may consider additional elements including:

(1) whether the experience was sufficiently complex and diverse, and of an increasing standard of quality and responsibility;

(2) whether the quality of the surveying work shows minimum technical competency;

(3) whether the experience was gained in accordance with the provisions of the Surveying Act and board rules;

(4) whether non-traditional surveying experience such as sales or military service provides sufficient depth of practice;

(5) whether short engagements have had an impact upon professional growth;

(6) whether the applicant intends to practice or offer surveying services in Texas;

(7) whether the experience was supplemented by training courses or participation in surveying organizations or societies that contribute to the applicant's competence and readiness for registration.

(d) Surveying experience may be considered satisfactory for the purpose of registration provided that:

(1) the experience is gained during an engagement longer than three months in duration;

(2) the experience, when taken as a whole, meets the minimum time;

(3) the experience is not anticipated and has actually been gained at the time of application; and

(4) the time granted for the experience claimed does not exceed the calendar time available for the periods of employment claimed.

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 July 24, 2020.

TRD-202003028

Lance Kinney

Executive Director

Texas Board of Professional Engineers and Land Surveyors

Earliest possible date of adoption: September 6, 2020

For further information, please call: (512) 440-3080


SUBCHAPTER F. REFERENCE DOCUMENTATION

22 TAC §§134.51, 134.53, 134.55

STATUTORY AUTHORITY

The rules are proposed pursuant to Texas Occupations Code §§1001.101 and 1001.202, which authorize the Board to regulate engineering and land surveying and make and enforce all rules and regulations and bylaws consistent with the Act and Texas Occupations Code §1071 as necessary for the performance of its duties, the governance of its own proceedings, and the regulation of the practices of engineering and land surveying in this state. They are also proposed pursuant to Texas Occupations Code §1001.204, which authorizes the Board to assess fees under Texas Occupations Code chapter 1071 including, but not limited to, registration fees. No other codes, articles, or statutes are affected by this proposal.

§134.51.Reference Providers.

(a) Applicants for registration shall provide reference statements to verify suitability for registration and all land surveying experience claimed to meet the minimum years of experience required. Reference statements will be used to verify the applicant's experience and to determine to the extent the experience is creditable land surveying experience. The NCEES record reference documentation may be accepted as reference statements as specified in this section.

(b) All reference providers shall be registered or licensed professional surveyors and have personal knowledge of the applicant's surveying experience and qualifications.

(c) No member of the Board will be accepted as a reference unless the Board member is the registered professional land surveyor with the most knowledge of the applicant's experience.

(d) Registered or licensed professional surveyors who provide reference statements and who are licensed or registered in a jurisdiction other than Texas shall include a copy of their pocket card or other verification to indicate that their license or registration is current and valid.

(e) Registered professional land surveyors who provide reference statements shall not be compensated.

(f) Reference statements on file with the board from previous applications may be used upon written request of the applicant and with the approval of the executive director. Additional references may be required.

(g) The board members and staff may, at their discretion, rely on any, all, or none of the reference statements provided in connection with an application for licensure.

§134.53.Reference Statements.

(a) The applicant shall make available to each reference provider, the board's reference statement form and a complete copy of the applicable portion(s) of the supplementary experience record.

(b) Persons providing reference statements verifying an applicant's land surveying experience shall:

(1) complete and sign the reference statement in a format prescribed by the board; and

(2) review, evaluate, and sign all applicable portions of the supplementary experience record(s). The reference provider's signature indicates that he has read the supplementary experience record(s), that the record(s) are correct to the best of his knowledge, and that the experience is relevant to registration. If the reference provider disagrees with or has comments or clarification to the information provided by the applicant, the reference provider should submit written comments or concerns to the board.

(3) For the purposes of this section, a reference statement and associated portions of the applicant's supplementary experience record submitted directly to the board through a secure method prescribed by the board will be considered "signed" as required in this subsection.

(c) The reference provider shall submit to the board both the reference statement and the supplementary experience record.

(d) For any reference statement to meet the requirements of the board, the reference statement must be secured. For a reference statement to be considered secure, the reference provider shall:

(1) place the completed reference statement and reviewed supplementary experience records in an envelope;

(2) secure the flap of the envelope to prevent tampering; and

(3) the reference provider shall return the sealed envelope to the applicant or transmit the documents directly to the board.

(e) Secured reference envelopes shall be submitted to the board by applicant or reference provider.

(f) Reference documents submitted directly to the board by the reference provider in a method prescribed by the board will meet the requirements of subsection (d) of this section.

(g) Evidence of retaliation by an applicant against a person who provides reference material for an application may be considered in the application process as described in §134.81 of this chapter (relating to Receipt and Processing of Applications by the Board.).

(h) The NCEES record reference documentation may be accepted in lieu of reference statements as specified in this section.

§134.55.Reference Communication.

Additional references may be required of the applicant when the executive director finds it necessary to adequately verify the applicant's experience. The board and/or staff may at their discretion communicate with any reference or seek additional information.

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 July 24, 2020.

TRD-202003029

Lance Kinney

Executive Director

Texas Board of Professional Engineers and Land Surveyors

Earliest possible date of adoption: September 6, 2020

For further information, please call: (512) 440-3080


SUBCHAPTER G. EXAMINATIONS

22 TAC §§134.61, 134.65, 134.67 - 134.69, 134.71, 134.73, 134.75

STATUTORY AUTHORITY

The rules are proposed pursuant to Texas Occupations Code §§1001.101 and 1001.202, which authorize the Board to regulate engineering and land surveying and make and enforce all rules and regulations and bylaws consistent with the Act and Texas Occupations Code §1071 as necessary for the performance of its duties, the governance of its own proceedings, and the regulation of the practices of engineering and land surveying in this state. They are also proposed pursuant to Texas Occupations Code §1001.204, which authorizes the Board to assess fees under Texas Occupations Code chapter 1071 including, but not limited to, registration fees. No other codes, articles, or statutes are affected by this proposal.

§134.61.Surveying Examinations Required for a Registration to Practice as a Professional Surveyor.

(a) Applicants are required to take two written experience and knowledge examinations, furnished and graded by the NCEES or by the board.

(b) All examinations shall be in the English language.

(c) Experience and knowledge examinations may be a Fundamentals of Surveying examination and a Principles and Practice of Surveying examination prepared by the NCEES or equivalent as determined by the board.

(d) The board shall publish examination information which shall include at least the following:

(1) the places where the examinations shall be held;

(2) the dates of the examinations;

(3) the deadline date for an examinee to schedule an examination, if applicable;

(4) fees for each examination; and

(5) types of examinations offered.

(e) Examinations may be scheduled by timely submission of registration information in a format specified by the Board with the appropriate examination fee.

(f) Individuals who plan to take an examination must have their registration completed by the close of regular business on the date established by the applicable examination schedule.

(g) Applicants providing an official verification from NCEES or an NCEES member board certifying that they have passed the Fundamentals of Surveying and/or Principles and Practices of Surveying examination(s) in that state shall not be required to take the examination(s) again.

(h) Examination registration fees may be collected by the board or a contracted exam administrator and shall be refunded or transferred to future examination administrations in accordance with established board or exam administrator policy and if approved by the executive director.

(i) Examination candidates who have been called into active U.S. military duty or who are re-assigned military personnel and will not be available to sit for an examination may request an extension of the approved examination period defined in §134.67 of this chapter (relating to Examination on the Principles and Practice of Surveying). Such candidates shall submit adequate documentation, including copies of orders, and a request to extend the approved examination period to the board. The candidate shall notify the board of their availability to resume the examination period within 60 days of release from active duty or when they are deployed to a location that provides a board approved examination.

(j) All examinations shall be administered to applicants with disabilities in compliance with the Americans with Disabilities Act of 1990 (42 U.S.C. §12101 et seq.), and its subsequent amendments. Special accommodations can be provided for examinees with physical or mental impairments that substantially limit life activities.

(1) Any individual with a disability who wishes to request special accommodations must submit an official request and supporting medical documentation that has been generated by an appropriate licensed health care professional in a format specified by the contracted exam administrator.

(2) The request must be submitted prior to the exam registration deadline established by the contracted exam administrator.

(3) The board or the contracted exam administrator may request additional documentation to substantiate a request for special accommodations.

(4) The requestor will be notified of approval of the request or reason for denial of the request by the board or contracted exam administrator.

(k) Pursuant to Texas Occupations Code §54.002, if an examination candidate's religious beliefs prevent the candidate from taking an examination on a religious holy day that conflicts with the normally scheduled examination date, the candidate shall submit a request to the contracted exam administrator and the board to take the examination on an alternate date.

(l) Upon successful passage of the experience and knowledge examinations an applicant shall be considered to have met the examination requirements for registration as a registered professional land surveyor in Texas.

§134.65.Examination on the Fundamentals of Surveying.

(a) An applicant who has met the requirements set forth in §134.3 of this chapter (relating to Surveyor-In-Training Application And Certification) and §1071.253 of the Surveying Act, and who has been approved by the executive director, shall be eligible to sit for the Fundamentals of Surveying examination.

(b) The board shall utilize the national fundamentals of surveying examination developed and administered by NCEES to meet this requirement.

(c) The examination on the fundamentals of surveying shall be offered according to the schedule determined by the NCEES.

§134.67.Examination on the Principles and Practice of Surveying.

(a) The examination on the principles and practice of surveying is open only to applicants who have received board approval to take the exam and Texas registered professional land surveyors who wish to take the examination for record purposes.

(b) An applicant approved to take the examination on the principles and practice of surveying:

(1) shall be advised of the date he or she is eligible;

(2) shall be solely responsible for timely scheduling for the examination and any payment of examination fees;

(3) shall have no more than three examination attempts and those attempts must be completed within a four-year period starting with the date of the first exam taken by the applicant. No extensions shall be granted except as provided for in §134.61(i) of this chapter (relating to Surveying Examinations Required for a License to Practice as a Professional Surveyor); and

(4) shall have no more than eight years from the date of approval to complete the allowed exam attempts.

(c) For the purposes of this section, exam attempt means a unique administration of an examination or exam component for which attendance is documented.

(d) An applicant who does not pass the examination on the principles and practice of surveying within the approved examination period described in subsection (b) of this section is considered not approved and may not re-apply for approval until he or she has obtained at least one (1) year of additional surveying experience as described in Subchapter E of this chapter (relating to Experience) or until the applicant has completed at least six (6) additional semester hours of formal college level classroom courses relevant to land surveying. The time period to obtain additional surveying experience or enroll in additional college courses commences on the date of the last exam attempt or when the approved examination period expired. Applicants meeting the additional experience or education requirements must apply in accordance with §134.21 of this chapter (relating to Application for Standard Registration) and receive approval for additional exam attempts.

(e) The examination on the principles and practice of surveying shall be offered according to the schedule determined by the NCEES or by the board.

(f) The principles and practice of surveying exam shall be constructed according to §1071.256 of the Surveying Act. The examination shall be written and so designed to aid the Board in determining the applicant's knowledge of land surveying, mathematics, land surveying laws, and his/her general fitness to practice the profession as outlined in the Surveying Act.

(g) The board may develop an examination to meet the requirements of this section.

(h) Starting January 1, 2021, the national NCEES Principles and Practice of Surveying examination, in conjunction with a state-specific Texas Land Surveying examination, may be used to meet the requirements of this section.

(i) The state-specific Texas Land Surveying examination shall be developed by the board to supplement the NCEES Principles and Practice of Surveying examination and cover any topic areas specific to the professional practice of land surveying in Texas that are not covered by the NCEES Principles and Practice of Surveying examination. The state-specific Texas Land Surveying examination shall not exceed four hours in duration.

§134.68.Licensed State Land Surveyor Examination.

(a) The Licensed State Land Surveyor examination is open only to applicants who have received board approval to take it.

(b) An applicant approved to take the licensed state land surveyor examination:

(1) shall be advised of the date he or she is eligible; and

(2) shall be solely responsible for timely scheduling for the examination and any payment of examination fees.

(c) For the purposes of this section, exam attempt means a unique administration of an examination for which attendance is documented.

(d) The licensed state land surveyor examination shall be offered according to the schedule determined by the board.

(e) The licensed state land surveyor examination shall be constructed according to §1071.256 of the Surveying Act. The exam shall be written and so designed to test the applicant's knowledge of the history, files, and functions of the General Land Office, survey construction, legal aspects pertaining to state interest in vacancies, excesses, and unpatented lands, and familiarity with other state interests in surface and subsurface rights as covered by existing law.

(f) The licensed state land surveyor examination consists of two four-hour sections and each part graded independently. An applicant is required to pass both sections of the examination in the same exam attempt. If an applicant does not pass both parts, the exam is not passed and the examinee may register for and attempt the examination again.

(g) The board shall develop an examination to meet the requirements of this section (relating to the licensed state land surveying examination).

§134.69.Waiver of Examinations.

(a) Examinations are considered an integral part of the licensing process; all applicants are expected to have passed the examinations or to offer sufficient evidence of their qualifications in the absence of passage of the examinations. The board may waive the examinations on the fundamentals of surveying for applicants who:

(1) do not pose a threat to the public health, safety, or welfare;

(2) request a waiver in writing at the time the application is filed; and

(3) meet the requirements of subsections (b) of this section.

(b) Waiver of Fundamentals of Surveying Examination. Applications for a waiver of the fundamentals of surveying examination will only be accepted from Out-of-State Registration Holders.

(1) Applicants must meet the requirements for application as an Out-of-State Registration Holder per §134.25 of this chapter (relating to Application from Out-Of-State Registration Holders);

(2) The applicant has at least 4 years of creditable surveying experience post licensure or registration as a licensed or registered land surveyor in another state or jurisdiction.

§134.71.Examination for Record Purposes.

A land surveyor currently registered in Texas may take the examination on the principles and practice of surveying for record purposes. Unless required to do so by the Board, an individual who has passed an examination may not re-take the examination.

§134.73.Examination Results and Analysis.

(a) For each examinee that has completed the examination on the fundamentals of surveying or the examination on the principles and practice of surveying, the board or NCEES shall provide a numerical score, if applicable, and an indication of whether the person passed or failed the examination.

(b) For those exams or exam components with numerical scores, the passing score is 70.

(c) In accordance with Texas Occupations Code §1001.273, the board or NCEES will provide a written analysis furnished by the NCEES to anyone who has failed either the examination on the fundamentals of surveying or the examination on the principles and practice of surveying.

(d) Once the board has provided a written analysis of an examination, no further review or re-grading shall be available for the examination except as provided in subsection (e) of this section. However, the executive director may, at his or her discretion, review the administrative portions of an examination answer sheet to resolve administrative uncertainties and/or determine the manner in which an examination should be scored.

(e) An examinee may request manual verification of grading of the examination on the principles and practice of surveying results only as permitted by the uniform examination procedures set out by NCEES or by the board:

(1) only at the date(s) and time(s) specified by NCEES in its notification to the examinee of his or her failure of the examination; and

(2) provided that any costs associated with manual verification by NCEES will be paid by the examinee.

§134.75.Examination Irregularities.

(a) The examinations will be administered in accordance with the NCEES or the board policies and procedures. An examinee who does not abide by the NCEES or the board policies and procedures will be subject to dismissal from the remainder of the examination. Cheating on examinations will not be tolerated. Examination proctors who observe that an examinee is giving assistance to or receiving assistance from another person, compromising the integrity of the examination, or participating in any other form of cheating or violation of exam policies or procedures during an examination may require the examinee to surrender all examination materials. The examinee involved may be required to leave the room and may not be permitted to return. Evidence of cheating found after the examination shall also be a cause for action. The executive director shall be informed of such instances of suspected cheating at the earliest possible opportunity and will determine appropriate action.

(b) If the executive director determines that sufficient evidence exists of an examination irregularity related to an examinee, an examinee has knowingly violated NCEES or the board policies and procedures, or an examinee cheated, the examinee may have his or her exam results invalidated, and may be barred from taking any examination in Texas for a period of up to two years. Any application for licensure pending or approved for examination may be denied and will be evaluated or re-evaluated on that basis. Any examination taken and passed while barred from taking an examination in Texas will not be acceptable for licensure purposes in Texas.

(c) A registered professional land surveyor or licensed state land surveyor suspected of cheating may be charged with violating Texas Occupations Code §1001.452 and applicable board rules.

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 July 24, 2020.

TRD-202003030

Lance Kinney

Executive Director

Texas Board of Professional Engineers and Land Surveyors

Earliest possible date of adoption: September 6, 2020

For further information, please call: (512) 440-3080


SUBCHAPTER H. REVIEW PROCESS OF APPLICATIONS AND REGISTRATION ISSUANCE

22 TAC §§134.81, 134.83, 134.87, 134.89, 134.91, 134.93, 134.95, 134.97

STATUTORY AUTHORITY

The rules are proposed pursuant to Texas Occupations Code §§1001.101 and 1001.202, which authorize the Board to regulate engineering and land surveying and make and enforce all rules and regulations and bylaws consistent with the Act and Texas Occupations Code §1071 as necessary for the performance of its duties, the governance of its own proceedings, and the regulation of the practices of engineering and land surveying in this state. They are also proposed pursuant to Texas Occupations Code §1001.204, which authorizes the Board to assess fees under Texas Occupations Code chapter 1071 including, but not limited to, registration fees. No other codes, articles, or statutes are affected by this proposal.

§134.81.Receipt and Processing of Applications by the Board.

(a) Upon receipt of an application for registration and application fee at the board office, the board shall initiate a review of the credentials submitted. Applicants who meet the registration requirements shall be issued a registration. Applicants who fail to meet one or more of the registration requirements shall be denied a registration.

(b) Once an application and fee is received by the board, no refunds will be granted. By submitting an application and fee, the applicant attests that he or she has reviewed the education, experience, reference, and examination requirements for registration as prescribed in this chapter and that he or she is qualified for a registration based on these requirements.

(c) Once an application has entered the review process as described in §134.83 of this chapter (relating to Executive Director Review, Evaluation and Processing of Applications), the executive director may determine that the application has been so altered by the addition of supplemental information that the description of the applicant's qualifications has been substantially revised. If the executive director determines that an application is substantially revised, the application will be treated as a new application and reviewed under the rules in place on the date of the determination. The executive director will provide an applicant with written notice if an application is determined to be substantially revised. If the applicant disagrees with a determination by the Executive Director, the applicant may make an appeal to the Licensing Committee.

(d) Once an application has been reviewed and before a registration has been issued or denied, the board will not accept a new or amended application from the applicant. This does not prohibit the executive director, a board member, or the board from requesting, when they deem necessary, additional information from an applicant regarding his or her application.

(e) In the event that information bearing on the suitability of an applicant is discovered after submission of an application but prior to issuance of a registration, the board may rescind or alter any previous decision, or hold the application in abeyance, or may deny an application until the suitability of the applicant is adequately established.

(f) An applicant may request an application to be withdrawn from consideration provided that the application has not been approved for registration subject to passage of an examination. All requests for withdrawal must be submitted to the board in writing.

(g) An applicant may only have one pending application on file with the board at any time.

(h) Pursuant to Chapter 55, Texas Occupations Code, an application for registration from a military service member, military veteran or military spouse shall be processed and reviewed as soon as practicable in accordance with subsection (a) of this section. All other applications will be processed in the order they were received.

§134.83.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 registration 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 to complete the application. The executive director or designee may grant the applicant an additional 30-day period to submit any information identified 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 §134.89 of this chapter (relating to Processing of Administratively Withdrawn Applications).

(4) Once an application is complete, the executive director shall review and evaluate the qualifications found in the application and determine whether the applicant should interview with the licensing and registration committee or whether the application should be:

(A) approved;

(B) denied; or

(C) referred to the Licensing and Registration Committee in accordance with §134.93 of this chapter (relating to Personal Interviews of Applicants).

(5) The executive director may approve the application without further board review unless the application is accompanied by an unfavorable recommendation by one or more reference providers.

(6) The executive director may deny an application for registration without further board review if the applicant does not:

(A) have sufficient years of experience to qualify for registration;

(B) have an education acceptable to the board as prescribed in §134.31 of this chapter (relating to Educational Requirement for Applicants);

(C) pass an examination within the time allotted; or

(D) complete the application and it becomes administratively withdrawn for more than six months.

(7) An application for registration that cannot be approved or denied by the executive director pursuant to paragraphs (5) and (6) of this section shall be referred to the Licensing and Registration Committee in accordance with §134.93 of this chapter (relating to Personal Interviews of Applicants)

§134.87.Final Action on Applications.

(a) Upon approval of an application by the executive director, the licensing and registration committee, or the board in a manner provided in this subchapter, the executive director shall:

(1) issue a registration subject to the applicant's taking and passing the examination on the principles and practice of surveying according to §134.67 of this chapter (relating to Examination on the Principles and Practice of Surveying); or

(2) issue a registration to an applicant who has passed the examination on the principles and practice of surveying.

(b) The board shall deny an application if any of the following occurs:

(1) the application has been administratively withdrawn for a period of six months;

(2) a majority of the full board voted to deny an application on the basis that the applicant does not meet the requirements of the Surveying Act and board rules; or

(3) the applicant did not pass the examination on the principles and practice of surveying in the prescribed time.

(c) The board by vote shall confirm the action taken on a registration at its next regularly scheduled meeting.

(d) The executive director shall advise the applicant in writing of any decision of the executive director, the licensing and registration committee, or the board, as applicable.

§134.89Processing of Administratively Withdrawn Applications.

(a) To reactivate an administratively withdrawn application, the applicant must submit:

(1) a reactivation fee as established by the board;

(2) a new application form complete with signatures;

(3) updated supplementary experience records for the time period since the application was first submitted; and

(4) documentation of submittal of fingerprints for criminal history record check as required by Texas Occupations Code §1001.272, unless previously submitted to the board.

(b) If the application has been administratively withdrawn for a period of six months, the application shall be denied.

§134.91.Reconsideration of Denied Applications.

(a) Reconsideration is not available to persons whose application is denied because of the failure to pass the examination on the principles and practice of surveying.

(b) If the application is denied because of the merits of the application, the completeness or incompleteness of the application, the failure to demonstrate an acceptable education, or the failure to claim the required creditable experience, then the applicant may initiate a request that the application be reconsidered provided:

(1) the request is in writing;

(2) the request includes additional information bearing on the deficiency of the original application;

(3) the request is received at the board office by the close of business on or before the 60th calendar day from the date of the letter notifying the applicant of denial; and

(4) no previous reconsideration has been given during this application.

(c) If a valid request for reconsideration is received, the application shall repeat the process of application review. Applicants whose applications or requests for an examination waiver are denied under reconsideration may request a personal interview.

§134.93.Personal Interviews of Applicants.

(a) A personal interview with the Licensing and Registration Committee of the board may be scheduled by the executive director to:

(1) obtain additional information or clarify submitted information as requested by the board; or

(2) reconsider a denied application resulting from §134.91 of this chapter (relating to Reconsideration of Denied Applications) at the applicant's request, provided that a written request has been submitted and received at the board's office by the close of business on or before the 60th calendar day from the date of the notification of denial.

(b) The personal interview is not to be construed as a hearing, but is held to obtain additional information in support of an application; and

(c) The executive director may excuse and reschedule an applicant for a personal interview for cause. The executive director may also withdraw an invitation or permission for a personal interview including a previous failure to appear.

(d) The Licensing and Registration 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.

(e) The Licensing and Registration Committee may request additional information or require additional documentation to clarify an application and ensure eligibility.

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

§134.95Application Files.

(a) Images of applications that have been through the complete administrative process for approval or denial shall be stored digitally and/or microfilmed.

(b) One copy of the records shall be kept in the board office file and one copy shall be kept in the permanent State Archive file.

(c) All documents incidental to the complete application may be retained at the discretion of the board.

§134.97Issuance Of Registration.

(a) A registration as a registered professional land surveyor shall be issued upon the approval of the application pursuant to §134.87(a) of this chapter (relating to Final Action on Applications).

(b) The new registration holder shall be assigned a serial number issued consecutively in the order of approval.

(c) The executive director shall notify the new registration holder in writing of:

(1) the registration issuance;

(2) the registration serial number;

(3) the instructions to obtain a seal; and

(4) the instructions to return a seal imprint and a recent, wallet-size, portrait photograph.

(d) Within 60 days from the written notice from the executive director of registration issuance, the new registration holder shall:

(1) obtain a seal(s);

(2) place the seal imprint(s) on the form provided by the board and return it to the board office; and

(3) furnish a wallet-size portrait photograph for the board's files.

(e) Failure to comply with subsection (d) of this section is a violation of board rules and shall be subject to sanctions.

(f) The printed registration certificate shall bear the signature of the chair and the secretary of the board, bear the seal of the board, and bear the full name and registration number of the registration holder.

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

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 July 24, 2020.

TRD-202003031

Lance Kinney

Executive Director

Texas Board of Professional Engineers and Land Surveyors

Earliest possible date of adoption: September 6, 2020

For further information, please call: (512) 440-3080


CHAPTER 136. SURVEYING FIRM REGISTRATION

22 TAC §§136.1, 136.3, 136.5

The Texas Board of Professional Engineers and Land Surveyors (Board) proposes new rules to 22 Texas Administrative Code, Chapter 136, specifically §§136.1, 136.3, and 136.5 regarding the registration process for professional land surveying firms in Texas. These proposed changes are referred to as "proposed rules."

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The rules under 22 Texas Administrative Code Chapter 136 implement Texas Occupations Code, Chapter 1001, the Texas Engineering Practice Act, and Occupations Code, Chapter 1071, the Professional Land Surveying Practices Act.

The proposed rules implement necessary changes as required by House Bill (HB) 1523, 86th Legislature, Regular Session (2019), related to the merger of operations of the Texas Board of Professional Engineers and the Texas Board of Professional Land Surveying (TBPLS) into the Texas Board of Professional Engineers and Land Surveyors (TBPELS).

As required by HB 1523, the operations of the two agencies have been merged into one, including the registration of surveying firms. The previous agency rules (22 Texas Administrative Code, Chapter 661), related to registration of land surveying firms, have been merged into Chapter 136 per the guidance of the Secretary of State. These rules have been formatted to be similar to the licensure rules for engineers (Chapter 135) and edits made for format and clarity.

SECTION-BY-SECTION SUMMARY

The proposed rules create a new §136.1 concerning the Board's general authority to register surveying firms and its authority to deny a firm registration if board requirements are not met in conformance with TBPLS rule §661.55.

The proposed rules create a new §136.3 concerning the application process to register surveying firms. Like TBPLS rule §661.55, it provides the details for the application process.

The proposed rules create a new §136.5 concerning the renewal of surveying firms. This rule directs firm registrants to Chapter 138 for guidance on the firm renewal process and requirements for land surveying firms.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Dr. Lance Kinney, Ph.D., P.E., Executive Director for the Board, has determined that for each year of the first five years the proposed rules are in effect, there are no estimated additional costs or reductions in costs to state or local government as a result of enforcing or administering the proposed rules. These proposed rules impose no additional costs. HB 1523 transferred regulatory authority from TBPLS to TBPELS, and these rules merely reflect the transfer of authority.

Dr. Kinney has determined that for each year of the first five years the proposed rules are in effect, there is no estimated increase or loss in revenue to the state or local government as a result of enforcing or administering the proposed rules.

LOCAL EMPLOYMENT IMPACT STATEMENT

Dr. Kinney has determined that the proposed rules will not affect the local economy, so the agency is not required to prepare a local employment impact statement under Government Code §2001.022.

PUBLIC BENEFITS

Dr. Kinney has determined that for each year of the first five-year period the proposed rules are in effect, the public benefit will be clear requirements for the efficient and effective registration of land surveying firms by TBPELS in accordance with HB 1523 and Texas Occupations Code chapters 1001 and 1071.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL

Dr. Kinney has determined that for each year of the first five-year period the proposed rules are in effect, the rules related to registration do not make substantive changes to the firm registration process and have no additional costs for registrants or the agency.

FISCAL IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES

There will be no adverse effect on small businesses, micro-businesses, or rural communities as a result of the proposed rules. Since the agency has determined that the proposed rules will have no adverse economic effect on small businesses, micro-businesses, or rural communities, preparation of an Economic Impact Statement and a Regulatory Flexibility Analysis, as detailed under Texas Government Code §2006.002, is not required.

ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT

The proposed rules do not have a fiscal note that imposes a cost on regulated persons, including another state agency, a special district, or a local government. Therefore, the agency is not required to take any further action under Government Code §2001.0045.

GOVERNMENT GROWTH IMPACT STATEMENT

Pursuant to Government Code §2001.0221, the agency provides the following Government Growth Impact Statement for the proposed rules.

HB 1532 transferred the regulation of land surveying to TBPELS, and these rules reflect a transfer of that regulatory authority from the former Texas Board of Professional Engineers to the TBPELS without any growth in government. Therefore, for each year of the first five years the proposed rules are in effect, the agency has determined the following:

1. The proposed rules do not create or eliminate a government program.

2. Implementation of the proposed rules does not require the creation of new employee positions or the elimination of existing employee positions.

3. Implementation of the proposed rules does not require an increase or decrease in future legislative appropriations to the agency.

4. The proposed rules do not require an increase or decrease in fees paid to the agency.

5. The proposed rules do not create a new regulation.

6. The proposed rules do not increase the number of individuals subject to the rules' applicability.

7. The proposed rules do not positively or adversely affect this state's economy.

TAKINGS IMPACT ASSESSMENT

The Board has determined that no private real property interests are affected by the proposed rules and the proposed rules do not restrict, limit, or impose a burden on an owner's rights to his or her private real property that would otherwise exist in the absence of government action. As a result, the proposed rules do not constitute a taking or require a takings impact assessment under Government Code §2007.043.

ENVIRONMENTAL RULE ANALYSIS

The Board has determined that the proposed rules are not brought with the specific intent to protect the environment or reduce risks to human health from environmental exposure; thus, the Board asserts the proposed rules are not a "major environmental rule," as defined by Government Code §2001.0225. As a result, the Board asserts preparation of an environmental impact analysis, as provided by §2001.0225, is not required.

PUBLIC COMMENTS

Any comments or request for a public hearing may be submitted, no later than 30 days after the publication of this notice, to Lance Kinney, Ph.D., P.E., 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.

STATUTORY AUTHORITY

The new rules are proposed pursuant to Texas Occupations Code §§1001.101 and 1001.202, which authorize the Board to regulate engineering and land surveying and make and enforce all rules and regulations and bylaws consistent with the Act and Texas Occupations Code §1071 as necessary for the performance of its duties, the governance of its own proceedings, and the regulation of the practices of engineering and land surveying in this state. They are also proposed pursuant to Texas Occupations Code §1001.204, which authorizes the Board to assess fees under Texas Occupations Code chapter 1071 including, but not limited to, registration fees.

No other codes, articles, or statutes are affected by this proposal.

§136.1.Authority.

The board shall receive, evaluate, and process all applications for a firm registration issued under the authority of the Surveying Act. Applications for firm registration shall be accepted from all firms offering to engage or engaging in the practice of professional land surveying for the public in Texas. For the purposes of this section, the term "public" includes but is not limited to political subdivisions of the state, business entities, and individuals. The board has the authority under the Surveying Act to issue an annual firm registration to applicants that, subsequent to review and evaluation, are found to have met all requirements of the Surveying Act and board rules. The board has the authority under the Surveying Act to deny a firm registration to any applicant found not to have met all requirements of the Surveying Act and board rules.

§136.3.Application for a Certificate of Registration.

(a) The board may issue a firm registration only to applicant firms having submitted information to meet the requirements set forth in §1071.352 of the Surveying Act and this section.

(b) The authorized official of the firm shall complete the form furnished by the board including, but not limited to, the following information listed in paragraphs (1) - (7) of this subsection:

(1) the name, address, and telephone number of the firm offering to engage or engaging in the practice of professional land surveying for the public in Texas;

(2) the name, position, address, and telephone numbers of each officer or director;

(3) the name, address, and current active Texas registered professional land surveyor registration number of each land surveyor employee performing land surveying for the public in Texas on behalf of the firm;

(4) the name, location, and telephone numbers of each subsidiary or branch office offering to engage or engaging in the practice of professional engineering for the public in Texas, if any;

(5) the federal employer identification number (EIN) for the firm;

(6) a signed statement attesting to the correctness and completeness of the application; and

(7) a registration fee as established by the board.

(c) The application fee will not be refunded.

§136.5.Renewal and Good Standing.

To maintain a certificate of registration in good standing, a firm shall abide by the compliance rules as prescribed in Chapter 138, Subchapter D of this title (relating to Firm and Governmental Entity Compliance).

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 July 21, 2020.

TRD-202002991

Lance Kinney

Executive Director

Texas Board of Professional Engineers and Land Surveyors

Earliest possible date of adoption: September 6, 2020

For further information, please call: (512) 440-3080


CHAPTER 139. ENFORCEMENT

The Texas Board of Professional Engineers and Land Surveyors (Board) proposes amendments to 22 Texas Administrative Code, Chapter 139, specifically §§139.1, 139.11, 139.13, 139.17, 139.19, 139.21, 139.23. 139.31, 139.33, 139.41, 139.43, 139.45, 139.47, 139.49, 139.51, and 139.63, regarding the enforcement processes and procedures of the agency. These proposed changes are referred to as "proposed rules."

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The rules under 22 Texas Administrative Code Chapter 139 implement Texas Occupations Code, Chapter 1001, the Texas Engineering Practice Act.

The proposed rules implement necessary changes as required by House Bill (HB) 1523, 86th Legislature, Regular Session (2019), related to the merger of operations of the Texas Board of Professional Engineers and the Texas Board of Professional Land Surveying into the Texas Board of Professional Engineers and Land Surveyors (TBPELS).

As required by HB 1523, the operations of the two agencies have been merged into one and the associated rules regarding enforcement processes and procedures of the agency have been merged into Chapter 139 per the guidance of the Secretary of State. These rules reflect language that has been expanded to include registered land surveyors within the scope of the current enforcement processes, the regulation of land surveying, and other changes incorporated due to the merger.

SECTION-BY-SECTION SUMMARY

The proposed rules amend §139.1 by adding references to land surveying and the Professional Land Surveying Practices Act to reflect the merger.

The proposed rules amend §139.11 by adding references to land surveying registration and the Professional Land Surveying Practices Act to reflect the merger.

The proposed rules amend §139.13 by updating the agency website address and complaint email address.

The proposed rules amend §139.17 by adding references to the Professional Land Surveying Practices Act to reflect the merger.

The proposed rules amend §139.19 by adding references to the Professional Land Surveying Practices Act to reflect the merger and stating that board rule violations are also grounds for enforcement actions.

The proposed rules amend §139.21 by adding references to land surveyors and the Professional Land Surveying Practices Act to reflect the merger.

The proposed rules amend §139.23 by adding references to land surveyors to reflect the merger.

The proposed rules amend §139.31 by adding references to land surveying registration and the Professional Land Surveying Practices Act to reflect the merger. The title of the rule is changed to reflect that board rule violations are also a basis for enforcement actions.

The proposed rules amend §139.33 to change the term Informal Conference to Informal Settlement Conference.

The proposed rules amend §139.41 by adding references to land surveying registration and changing a statutory citation to conform with changes to Occupations Code 1001 by HB 1523.

The proposed rules amend §139.43 by adding references to land surveying registration.

The proposed rules amend §139.45 by adding references to land surveying registration and the Professional Land Surveying Practices Act to reflect the merger.

The proposed rules amend §139.47 by adding references to land surveying registration.

The proposed rules amend §139.49 by adding references to land surveying registration.

The proposed rules amend §139.51 by adding references to land surveying registration.

The proposed rules amend §139.63 by modifying language related to extensions of time related to enforcement actions to conform with the Administrative Procedures Act, Government Code 2001.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Dr. Lance Kinney, Ph.D., P.E., Executive Director for the Board, has determined that for each year of the first five years the proposed rules are in effect, there are no estimated additional costs or reductions in costs to state or local government as a result of enforcing or administering the proposed rule. HB 1523 transferred regulatory authority from TBPLS to TBPELS, and these rules merely reflect that transfer of authority.

Dr. Kinney has determined that for each year of the first five years the proposed rules are in effect, there is no estimated increase or loss in revenue to the state or local government as a result of enforcing or administering the proposed rule.

LOCAL EMPLOYMENT IMPACT STATEMENT

Dr. Kinney has determined that the proposed rules will not affect the local economy, so the agency is not required to prepare a local employment impact statement under Government Code §2001.022.

PUBLIC BENEFITS

Dr. Kinney has determined that for each year of the first five-year period the proposed rules are in effect, the public benefit will be the efficient and effective merger and operations of the Texas Board of Professional Engineers and Land Surveyors per HB 1523 and clarified rule language.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL

Dr. Kinney has determined that for each year of the first five-year period the proposed rules are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules because the changes are related to agency operations as set forth in HB 1523, Occupations Code 1001 and 1071.

FISCAL IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES

There will be no adverse effect on small businesses, micro-businesses, or rural communities as a result of the proposed rules. Since the agency has determined that the proposed rules will have no adverse economic effect on small businesses, micro-businesses, or rural communities, preparation of an Economic Impact Statement and a Regulatory Flexibility Analysis, as detailed under Texas Government Code §2006.002, is not required.

ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT

The proposed rules do not have a fiscal note that imposes a cost on regulated persons, including another state agency, a special district, or a local government. Therefore, the agency is not required to take any further action under Government Code §2001.0045.

GOVERNMENT GROWTH IMPACT STATEMENT

Pursuant to Government Code §2001.0221, the agency provides the following Government Growth Impact Statement for the proposed rules. HB 1532 transferred the regulation of land surveying to the TBPELS, and these rules reflect a transfer of that regulatory authority from the former Board of Professional Land Surveying to the TBPELS without any growth in government. Therefore, for each year of the first five years the proposed rules are in effect, the agency has determined the following:

1. The proposed rules do not create or eliminate a government program.

2. Implementation of the proposed rules do not require the creation of new employee positions or the elimination of existing employee positions.

3. Implementation of the proposed rules do not require an increase or decrease in future legislative appropriations to the agency.

4. The proposed rules do not require an increase or decrease in fees paid to the agency.

5. The proposed rules do not create a new regulation.

6. The proposed rules do not expand, limit, or repeal a regulation, except as provided by HB 1532, which transferred the regulation of land surveying to the TBPELS, and these rules reflect a transfer of that regulatory authority from the former Board of Professional Land Surveying to the TBPELS

7. The proposed rules do not increase the number of individuals subject to the rule's applicability.

8. The proposed rules do not positively or adversely affect this state's economy.

TAKINGS IMPACT ASSESSMENT

The Board has determined that no private real property interests are affected by the proposed rules and the proposed rules do not restrict, limit, or impose a burden on an owner's rights to his or her private real property that would otherwise exist in the absence of government action. As a result, the proposed rules do not constitute a taking or require a takings impact assessment under Government Code §2007.043.

ENVIRONMENTAL RULE ANALYSIS

The Board has determined that the proposed rules are not brought with the specific intent to protect the environment or reduce risks to human health from environmental exposure; thus, the Board asserts the proposed rules are not a "major environmental rule," as defined by Government Code §2001.0225. As a result, the Board asserts preparation of an environmental impact analysis, as provided by §2001.0225, is not required.

PUBLIC COMMENTS

Any comments or request for a public hearing may be submitted, no later than 30 days after the publication of this notice, to Lance Kinney, Ph.D., P.E., 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. ENFORCEMENT AUTHORITY

22 TAC §139.1

STATUTORY AUTHORITY

The rules are proposed pursuant to Texas Occupations Code §§1001.101 and 1001.202, which authorize the Board to regulate engineering and land surveying and 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 practices of engineering and land surveying in this state. The proposed rules also comply with HB 1523.

No other rules are affected by this rulemaking.

§139.1.General.

The board will conduct inquiries into situations which allegedly violate the requirements of the Engineering or Surveying Acts [Texas Engineering Practice Act (Act)] and board rules concerning the practice of engineering or land surveying;[,] representations which imply the legal capacity to offer or perform engineering or land surveying services for the public;[,] and situations which are considered by the board to pose or have caused harm to the public. Situations that represent a repeat offense, a danger or nuisance to the public, or that cannot be reasonably resolved through voluntary compliance, will be disposed of by administrative, civil, or criminal proceedings as authorized by law.

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 July 22, 2020.

TRD-202003011

Lance Kinney

Executive Director

Texas Board of Professional Engineers and Land Surveyors

Earliest possible date of adoption: September 6, 2020

For further information, please call: (512) 440-3080


SUBCHAPTER B. COMPLAINT PROCESS AND PROCEDURES

22 TAC §§139.11, 139.13, 139.17, 139.19, 139.21, 139.23

STATUTORY AUTHORITY

The rules are proposed pursuant to Texas Occupations Code §§1001.101 and 1001.202, which authorize the Board to regulate engineering and land surveying and 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 practices of engineering and land surveying in this state. The proposed rules also comply with HB 1523.

No other rules are affected by this rulemaking.

§139.11.Complaints - General.

(a) The board shall initiate or receive and investigate a complaint against a license or registration holder or other person who may have violated the Act or board rules.

(b) (No change.)

(c) The provisions of the Acts [Act] and the provisions of the Administrative Procedure Act, Chapter 2001, Texas Government Code, shall apply to the conduct of all investigations and administrative actions in the board's processing of a complaint. In addition, the board may promulgate other procedural rules consistent with the Acts [Act] or Chapter 2001, Texas Government Code.

§139.13.Filing a Complaint.

(a) A person who wishes to make a complaint with the board may obtain assistance, filing information, or contact the board by:

(1) visiting the board website at http://pels.texas.gov [http://engineers.texas.gov];

(2) sending electronic mail to complaints@pels.texas.gov [peboard@engineers.texas.gov];

(3) sending written correspondence to: 1917 S. Interstate 35, Austin, Texas 78741-3702;

(4) sending fax to (512) 440-5715;

(5) telephoning the board office at (512) 440-7723;or

(6) visiting the board office located at 1917 S. Interstate 35, Austin, Texas.

(b) - (f) (No change.)

(g) Anonymous complaints will be received but will not be investigated unless sufficient information and evidence exists to demonstrate harm or potential harm to the public or violation of Acts [Act] or board rules. Anonymous complaints that do not contain sufficient evidence and information to initiate an investigation will be logged and filed for information purposes only.

§139.17.Investigating a Complaint.

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

(c) Upon determination that sufficient evidence exists to indicate that a violation of law or rules may have occurred, the executive director shall notify the person or entity by personal service or by certified or registered mail of the alleged violation. The respondent will be afforded the opportunity to respond to the complaint to show that the actions which precipitated the complaint are not in violation of the Acts [Act] or board rules.

(d) (No change.)

(e) If the board staff intends to dismiss the complaint because the investigation of the complaint does not produce sufficient evidence to substantiate a violation of the Acts [Act] or board rules, the board staff will inform the complainant of the rationale for the determination prior to reporting the dismissal to the board.

(f) - (g) (No change.)

§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 Acts and Board Rules [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) referral of injunctive or criminal actions to the proper authorities;

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

(6) other action as provided by law.

(b) If sufficient evidence and documentation does not exist to substantiate that one or more violations of the Acts [Act] or board rules has occurred and disciplinary action is not warranted, the board staff shall recommend to dismiss the complaint and report the dismissal to the board.

§139.21.Reporting Complaint Status to the Board.

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

(c) If the executive director determines that the complaint filed is frivolous or without merit, the case information will be classified as confidential and as such the information is not subject to discovery, subpoena, and or other disclosure. The board shall approve this action upon acceptance of the report and the case will then be closed. Closed cases will not be reconsidered for classification under this rule.

(1) A "frivolous complaint" means a complaint that the executive director has determined:

(A) was made for the purpose of harassment; and

(B) does not demonstrate harm to any person.

(2) A complaint that is determined by the executive director to be "without merit" would include situations where a:

(A) professional engineer, professional land surveyor , individual, or firm has been determined to not be responsible or connected in any way with the alleged violative action in the complaint, as it relates to a violation of the Engineering or Surveying Acts and/or [Practice Act and or] board rules; or[,]

(B) case has been determined to be outside the jurisdiction of the board; or[,]

(C) case has been determined to have been administratively opened in error.

§139.23.Technical Consultants.

(a) The executive director may employ or contract with or gain technical advice from technical consultants, including, but not limited to, advisors, consultants, engineers, land surveyors, and other persons to provide technical assistance in investigations and disciplinary proceedings. In the course of performing the person's official duties for the board, technical consultants are immune from civil liability and may not be subject to a suit for damages for any investigation, report, recommendation, statement, evaluation, finding made, or other action taken, except for when an action involves fraud, conspiracy, or malice.

(b) - (c) (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 July 22, 2020.

TRD-202003012

Lance Kinney

Executive Director

Texas Board of Professional Engineers and Land Surveyors

Earliest possible date of adoption: September 6, 2020

For further information, please call: (512) 440-3080


SUBCHAPTER C. ENFORCEMENT PROCEEDINGS

22 TAC §139.31, §139.33

STATUTORY AUTHORITY

The rules are proposed pursuant to Texas Occupations Code §§1001.101 and 1001.202, which authorize the Board to regulate engineering and land surveying and 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 practices of engineering and land surveying in this state. The proposed rules also comply with HB 1523.

No other rules are affected by this rulemaking.

§139.31.Enforcement Actions for Violations of the Acts or Board Rules [Act].

(a) Under the authority and provisions of the Engineering Act and the Land Surveying Act [§1001.201, §1001.202, and Subchapters J, K, and L of the Texas Engineering Practice Act (Act)], the board shall take action against a person or entity, upon determination that censure is warranted, for a violation of the Acts and/or board rules. An action may be composed of one or more of the following:

(1) revocation of a license or registration;

(2) suspension of a license or registration;

(3) probation of a suspended license or registration;

(4) refusal to renew a license or registration;

(5) issuance of a formal or informal reprimand;

(6) cease and desist order;

(7) voluntary compliance agreement;

(8) emergency suspension; or

(9) assessment of an administrative penalty [under Subchapter K of the Act].

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

§139.33.Informal Settlement Conferences [Proceedings].

If, after evaluation of the respondent's response a violation appears evident, the executive director shall initiate enforcement action. Before proceeding with the formal contested case hearing process, the respondent shall have an opportunity to resolve the allegations informally.

(1) The executive director may also offer the respondent a Consent Order that will be presented to the board for acceptance or rejection. If the respondent declines such an offer, or if the board rejects it, the procedures in paragraphs (2) or (3) of this section will be followed.

(2) The respondent may request an informal settlement conference to present additional evidence and discuss details of the allegation. Upon receipt of such a request the executive director shall schedule a conference at the board office or other location, and shall appoint an informal settlement conference committee composed of one board member or board representative, the executive director or executive director's designee, and legal counsel; the committee may meet and act provided that no more than one committee member is absent. Other persons designated by the respondent or the executive director may be present as resources or as legal counsel to respondent. The informal settlement conference committee shall hear the details of the allegations and shall recommend:

(A) dismissal;

(B) a proposal for an Agreed Board Order for disciplinary actions that will be presented to the board for acceptance or rejection; or

(C) scheduling of a formal hearing.

(3) Any board action under this subsection which is not informally disposed by Agreed or Consent Order, will be considered a contested case and will be handled in accordance with applicable law and board rules.

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 July 22, 2020.

TRD-202003013

Lance Kinney

Executive Director

Texas Board of Professional Engineers and Land Surveyors

Earliest possible date of adoption: September 6, 2020

For further information, please call: (512) 440-3080


SUBCHAPTER D. SPECIAL DISCIPLINARY PROVISIONS FOR LICENSE HOLDERS

22 TAC §§139.41, 139.43, 139.45, 139.47, 139.49, 139.51

STATUTORY AUTHORITY

The rules are proposed pursuant to Texas Occupations Code §§1001.101 and 1001.202, which authorize the Board to regulate engineering and land surveying and 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 practices of engineering and land surveying in this state. The proposed rules also comply with HB 1523.

No other rules are affected by this rulemaking.

§139.41.License or Registration Holder with Renewable, Expired License or Registration.

A license or registration holder whose license or registration has expired for nonpayment of renewal fees continues to be subject to all provisions of the Acts [Act] and board rules governing license holders until the license is revoked by the board or becomes non-renewable under §1001.276 [§1001.353(d) of the Act].

§139.43.License or Registration Holder with Criminal Convictions.

(a) The board shall follow the requirements of Chapter 53, Texas Occupations Code, and shall revoke the license or registration of any license or registration holder incarcerated [after licensure as a professional engineer] as a result of:

(1) a felony conviction;[,]

(2) violation of felony probation or parole;[,] or

(3) revocation of mandatory supervision.

(b) The board, after it considers the factors provided in Texas Occupations Code §53.022 and §53.023, may take any of the actions set out in §139.31 of this chapter (relating to Enforcement Actions for Violations of the Acts or Board Rules) when a license or registration holder is convicted of a misdemeanor or a felony without incarceration if the crime directly relates to the license holder's duties and responsibilities as a professional engineer or professional land surveyor.

(c) Any license or registration holder whose license or registration has been revoked under the provisions of this subsection may apply for a new license or registration upon release from incarceration, but the application shall be subject to additional scrutiny relating to the incarceration. Such scrutiny shall be in accordance with Chapter 53, Texas Occupations Code.

§139.45.Restitution.

In addition to or in lieu of an administrative penalty, the board may order a license or registration holder to pay restitution to a consumer as a result of an agreement resulting from an informal settlement conference. The amount of the restitution may not exceed the amount paid by the consumer to the person for a service regulated by the Acts [Act].

§139.47.Probation.

As part of a disciplinary action for violating the Acts [Act] and board rules including, but not limited to, negligence, incompetence, or endangerment to the public, the board may prescribe conditions of probation for each probated suspension on a case-by-case basis depending on the severity of the violation that will include reporting requirements, restrictions on practice, and/or continuing education requirements as applicable as described in this section [subsection].

(1) The board will determine the reporting requirements for each probated suspension and will include a list of board probation requirements and schedule for completion of those requirements in which the board may require the license or registration holder to submit documentation including, but not limited to, client lists, job assignments, designs, proof of continuing education participation, restricted practice reports, and other documents concerning the practice of engineering or land surveying to demonstrate compliance with the conditions of probation. As a condition of probation, the license or registration holder shall accept that schedule deadlines are final and no extensions or revision shall be granted, unless approved by the board.

(2) The board [Board] will receive and date stamp documentation on the day received and track compliance with probation requirements for each probated suspension. The board shall honor postmarks for date of submittal; however, if not received by the required deadline, the license holder shall have the burden of proof to demonstrate documentation was submitted by the schedule deadline.

(3) As a condition of probation, the board may restrict the area of practice of the license or registration holder. The board may require the license or registration holder to practice under the supervision and mentorship of another professional engineer when performing engineering or another professional land surveyor when performing land surveying in the restricted [prescribed] areas of practice.

(4) As a condition of probation, the board may require the license or registration holder to obtain additional continuing education in addition to the minimum requirements of §137.17 of this title (relating to Investigating a Complaint) and may prescribe formal classroom study, workshops, seminars, and other specific forms of continuing education.

(5) Failure to comply with probation requirements shall result in lifting of probation and suspending of the [engineering] license or registration for the remainder of the suspension period.

§139.49.License or Registration Suspension/Revocation Based on Status Review.

(a) The board may review the status of a license or registration holder the board believes:

(1) may have been issued a license or registration through fraud or error; or

(2) may constitute a threat to the public health, safety, or welfare.

(b) The board may, as set out in §139.31 of this chapter (relating to Enforcement Actions for Violations of the Acts or Board Rules [Act]), suspend or revoke a license or registration held by a person whose status is reviewed under this section.

§139.51.License or Registration Suspension Based on Delinquent Child Support.

Pursuant to Texas Family Code, Chapter 232, on receipt of a final order by the OAG (Office of the Attorney General) regarding delinquent child support, the board must suspend a professional engineer license or professional land surveyor registration until the OAG notifies the Board that the obligor has paid the child support, established a repayment schedule, has been granted an exception as part of a court-supervised plan, or successfully contested the denial of licensure.

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 July 22, 2020.

TRD-202003014

Lance Kinney

Executive Director

Texas Board of Professional Engineers and Land Surveyors

Earliest possible date of adoption: September 6, 2020

For further information, please call: (512) 440-3080


SUBCHAPTER E. HEARINGS

22 TAC §139.63

STATUTORY AUTHORITY

The rule is proposed pursuant to Texas Occupations Code §§1001.101 and 1001.202, which authorize the Board to regulate engineering and land surveying and 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 practices of engineering and land surveying in this state. The proposed rules also comply with HB 1523. The proposed rule §139.63, Extension of Time, is authorized by Texas Government Code §§2001.142(e) and 2001.147.

No other rules are affected by this rulemaking.

§139.63.Extensions of Time.

(a) The board has authorized the Executive Director to act for the agency, on the Executive Director's own initiative or in response to a motion, to grant or deny an extension of time under the Administrative Procedures Act, §2001.142(e) (Sworn Motion) and under the Administrative Procedures Act, §2001.146(e) (Extending Deadline to File Motion For Rehearing). [The Executive Director may enter into an agreement with parties to a contested case to modify time limits as provided under the APA, Texas Government Code §2001.147.]

(b) Under §2001.147 of the Administrative Procedures Act, the board may approve an agreement of the parties to modify the times prescribed by the Administrative Procedures Act, §2001.143 (Time When Order Must Be Signed) and Administrative Procedures Act, §2001.146 (Extending the Deadline to File a Motion For Rehearing).

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 July 22, 2020.

TRD-202003015

Lance Kinney

Executive Director

Texas Board of Professional Engineers and Land Surveyors

Earliest possible date of adoption: September 6, 2020

For further information, please call: (512) 440-3080


PART 36. COUNCIL ON SEX OFFENDER TREATMENT

CHAPTER 810. COUNCIL ON SEX OFFENDER TREATMENT

SUBCHAPTER A. LICENSED SEX OFFENDER TREATMENT PROVIDERS

22 TAC §810.4

The Council on Sex Offender Treatment (Council) proposes an amendment to Title 22, Texas Administrative Code, §810.4, concerning License Issuance and/or Renewal, in order to provide licensed sex offender treatment providers with the flexibility to obtain additional online continuing education hours for renewal requirements.

BACKGROUND AND PURPOSE

The Council is required to adopt rules for procedures and eligibility and other requirements for renewal of a sex offender treatment provider license, including requirements related to continuing education.

At its regularly scheduled meeting on June 12, 2020, the Council approved the amendment to §810.4(7) to increase the maximum number of allowable online continuing education hours for license renewal from six hours to 12 hours. Online hours accrued to satisfy the continuing education ethics requirement do not count toward the maximum of 12 online hours.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §810.4(7) increases the maximum number of online continuing education hours for license renewal from six hours to 12 hours. There are no further changes to §810.4.

FISCAL NOTE

Council staff has determined that for each year of the first five years the proposed rule will be in effect, there will be no fiscal implications to state or local governments as a result of the proposed rule changes.

GOVERNMENT GROWTH IMPACT STATEMENT

As required by Texas Government Code, §2001.0221, relating to government growth impact statements, Council staff has determined that during the first five years the rule will be in effect, the proposed rule neither creates nor eliminates a government program; implementation of the proposed rule requires neither the creation of new employee positions nor the elimination of existing employee positions; implementation of the proposed rule requires neither an increase nor decrease in future legislative appropriations to the agency; the proposed rule requires neither an increase nor decrease in fees paid to the agency; the proposed rule neither expands, limits, nor repeals an existing regulation; the proposed rule neither increases nor decreases the number of individuals subject to the rule's applicability; and the proposed rule neither positively nor adversely affects this state's economy.

SMALL BUSINESS, MICRO-BUSINESS AND RURAL ECONOMIC IMPACT ANALYSIS

Council staff has also determined there will be no adverse economic effect on small businesses, micro-businesses or rural communities required to comply with the section as proposed. This was determined by interpretation of the rules that small businesses and micro-businesses or rural communities will not be required to alter their business practices to comply with the section. The rule does not impose any additional costs on small businesses, micro-businesses, or rural communities required to comply with the rule.

IMPACT ON LOCAL EMPLOYMENT

The proposal will not affect a local economy. There is no anticipated negative impact on local employment.

COSTS TO REGULATED PERSONS

Texas Government Code, §2001.0045 does not apply to this rule because the rule does not impose a fee on regulated persons.

PUBLIC BENEFIT AND COSTS

In addition, Council staff has also determined that for each year of the first five years the section is in effect, the public will benefit from adoption of the section. The public benefit anticipated as a result of enforcing or administering the section is to continue to ensure public health and safety through the effective licensing and regulation of sex offender treatment providers.

Council staff has determined that there are no anticipated economic costs to persons who are required to comply with the rule as proposed.

REGULATORY ANALYSIS

Council staff has determined this proposal is not a "major environmental rule" as defined by Texas Government Code, §2001.0225. "Major environmental rule" is defined to mean a rule the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.

TAKINGS IMPACT ASSESSMENT

Council staff has determined the proposed rule does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code, §2007.043.

PUBLIC COMMENT

Comments on the proposed rule may be submitted to Sarah Faszholz, Interim Executive Director, Council on Sex Offender Treatment, Mail Code 1982, P.O. Box 149347, Austin, Texas 78714-9347 or by email to csot@hhsc.state.tx.us. When emailing comments, please indicate "Comments on Proposed Rule" in the subject line.

To be considered, comments must be submitted no later than 31 days following publication of the proposal in the Texas Register. If the last day to submit comments falls on a weekend or a holiday, comments must be postmarked, shipped, or emailed before midnight on the following business day to be considered.

STATUTORY AUTHORITY

The amendment is authorized by Texas Occupations Code, §110.158, which authorizes the Council to adopt rules necessary for the performance of its duties; and §110.302, which requires the Council to adopt licensing requirements for sex offender treatment providers.

The rule implements Occupations Code, Chapter 110.

§810.4.License Issuance and/or Renewal.

All new initial licenses shall expire on the last day of the licensee's birth month. The initial licensing period shall be at least 13 months and no more than 24 months. Subsequent licensing periods will be 24 months. In order to maintain eligibility for the licensure as a sex offender treatment provider, the mental health or medical license of each renewal shall be current and active. All renewal applicants shall comply with the following:

(1) - (6) (No change.)

(7) Licensees shall request pre-approval from the council for all online courses and courses taken at an institution of higher learning. All renewal applicants may count a maximum of 12 [6] online hours per biennial renewal period, not including ethics [ethic] hours.

(8) - (11) (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 July 27, 2020.

TRD-202003043

Aaron Pierce, PhD, LPC, LSOTP-S

Chair

Council on Sex Offender Treatment

Earliest possible date of adoption: September 6, 2020

For further information, please call: (512) 776-6972