TITLE 22. EXAMINING BOARDS

PART 6. TEXAS BOARD OF PROFESSIONAL ENGINEERS AND LAND SURVEYORS

CHAPTER 133. LICENSING FOR ENGINEERS

SUBCHAPTER C. PROFESSIONAL ENGINEER LICENSE APPLICATION REQUIREMENTS

22 TAC §§133.21, 133.23, 133.25, 133.27

The Texas Board of Professional Engineers and Land Surveyors (Board) proposes amendments to 22 Texas Administrative Code, Chapter 133, Subchapter C, specifically §§133.21, 133.23, 133.25, and 133.27, regarding the application requirements for licensure of professional engineers 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 133 implement Texas Occupations Code, Chapter 1001, the Texas Engineering Practice Act.

The proposed rules primarily include citation clarifications based on other rule amendments, and they clarify rule language. The amendments are related to revisions of Chapter 133, Subchapter H, which clarify the procedure to determine which license applications can be approved directly and which need additional review and information prior to approval. The amended rules add a procedure by which applicants whose applications have been initially rejected may seek review of the agency's decision to reject the application.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §133.21, concerning an Application for a Standard License, includes citation clarifications based on other rule amendments and clarifies rule language.

The proposed amendment to §133.23, concerning Applications from Former Standard License Holders, includes citation clarifications based on other rule amendments and clarifies rule language.

The proposed amendment to §133.25, concerning Applications from Engineering Educators, includes citation clarifications based on other rule amendments and clarifies rule language.

The proposed amendment to §133.27, concerning Applications for Temporary License for Engineers Currently Licensed Outside the United States, includes citation clarifications based on other rule amendments and clarifies rule language.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

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.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

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

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 to clarify and streamline the application review process and provide a pathway for applicants who contest a board decision on their application related to criminal convictions to have their cases heard at SOAH.

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 is no anticipated economic costs to persons who are required to comply with the proposed rules.

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 to provide a clearer path for the review and processing of license applications and a path to contest board decisions on applications related to criminal convictions and have them heard at SOAH.

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 rule is 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, via email to rules@pels.texas.gov, via mail to 1917 S. Interstate 35, Austin, Texas 78741, or faxed to his attention at (512) 440-0417.

STATUTORY AUTHORITY

The rule amendments are proposed pursuant to Texas Occupations Code §§ 1001.101 and 1001.202, which authorize the Board to regulate engineering and land surveying and to make and enforce all rules and regulations and bylaws consistent with the Act as are 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 rules are also proposed under Texas Occupations Code §§1001.302 and 1001.303, concerning license eligibility and application requirements.

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

§133.21.Application for Standard License.

(a) To be eligible for licensure as a professional engineer, one must submit a completed application.

(b) All persons must pass [have passed] the examination on the fundamentals of engineering or be eligible for a waiver from the examination on the fundamentals of engineering before submitting an application.

(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 acceptable to the executive director.

(d) Applicants for a license 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 §133.33 or §133.35 of this chapter (relating to Proof of Educational Qualifications);

(4) supplementary experience record as required under §133.41 of this chapter (relating to Supplementary Experience Record);

(5) reference statements as required under §133.51 of this chapter (relating to Reference Providers);

(6) documentation of a passing score on [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 §133.61(g) of this chapter (relating to Engineering Examinations), if applicable;

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

(8) a completed Texas Engineering Professional Conduct and Ethics Examination as required under §133.63 of this chapter (relating to Professional Conduct and Ethics Examination);

(9) [scores of] TOEFL scores, if applicable;

(10) information regarding any [criminal history including any] judgments of convictions, deferred judgments or pre-trial diversions for a misdemeanor or felony provided in a [format] form 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;

(11) documentation of submittal of fingerprints for criminal history record check as required by §1001.272 of the Act; and

(12) if applicable, written requests for waivers of the examinations on the fundamentals and/or principles and practices of engineering, [the] TOEFL documentation, or a commercial evaluation of non-accredited degrees and a statement supporting the request(s).

(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, such documentation may not meet the requirements of the board at the time of the subsequent application and 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 their 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 §133.83 of this chapter (relating to [Executive Director] Processing, Review, and 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] to ensure eligibility pursuant to §1001.302 of the Act, as needed. Pursuant to §1001.453 of the Act, the board may review the license holder's status and take action if the license was obtained by fraud or error or the license holder may pose a threat to the public's health, safety, or welfare.

§133.23.Applications from Former Standard License Holders.

(a) A former standard license 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 license. This section does not apply to a former holder of a temporary license.

(b) A former standard license holder applying for a license under the current law and rules must have the documentation requested in §133.21 of this chapter (relating to Application) 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 a completed Texas Engineering Professional Conduct and Ethics examination;

(4) submit a supplementary experience record that includes at least the last four years of engineering experience, which may include experience before the previous license expired;

(5) submit also at least one reference statement conforming to §133.51 of this chapter (relating to Reference Providers), in which a professional engineer shall verify at least four years of the updated supplementary experience record; and

(6) 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 license holder is received, the board will follow the procedures in §133.83 of this chapter (relating to [Executive Director] Processing, Review, and Evaluation [and Processing] of Applications) to review and approve or deny the application.

(d) Any license issued to a former standard license 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 §133.83 of this chapter (relating to [Executive Director] Processing, Review, and Evaluation [and Processing] of Applications) to review and approve or deny the application. The board may request additional information or require additional documentation to [clarify an application and] ensure eligibility pursuant to §1001.302 of the Act, as needed. Pursuant to §1001.453 of the Act, the board may review the license holder's status and take action if the license was obtained by fraud or error or the license holder may pose a threat to the public's health, safety, or welfare.

(f) Any enforcement action taken against an expired license holder in accordance with §139.31 (relating to Enforcement Actions for Violations of the Act or Board Rules) and any enforcement action that was pending when a license expired, and has remained expired for two or more years, may be considered in the evaluation of an application for a new license.

§133.25.Applications from Engineering Educators.

(a) Persons whose current, primary employment is as an engineering educator instructing engineering courses in a recognized institution of higher education in Texas, as defined in §131.2 [§131.81] of this title (relating to Definitions) are permitted to seek licensure utilizing an alternate application.

(b) The minimum educational qualifications are as follows:

(1) Earned doctoral degree in engineering from a college or university that offers an undergraduate or master's degree program in a related branch of engineering that is approved by the EAC/ABET as published in the current version of the ABET Accreditation Yearbook and or the current version of the ABET International Yearbook or as published in the yearbook applicable to a previous year in which the applicant graduated; or

(2) Earned doctoral degree in engineering or another related field of science or mathematics assessed and approved by the board.

(c) An engineering educator, applying under the alternate process, shall submit:

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

(2) a supplementary experience record:

(A) For tenured faculty (or those approved for promotion), submit a dossier including a comprehensive resume or curriculum vitae containing educational experience, engineering courses taught, and description of research and scholarly activities in lieu of the supplementary experience record;

(B) For non-tenured faculty, a standard supplementary experience record with courses taught and/or other engineering experience shall be submitted;

(3) reference statements or letters from currently licensed professional engineers who have personal knowledge of the applicant's teaching and/or other creditable engineering experience. A reference provider may, in lieu of the reference statement, submit a letter of recommendation that, at a minimum, testifies to the credentials and abilities of the educator. The reference statements or letters of recommendation can be from colleagues within the department, college, or university; from colleagues from another university; or professional engineers from outside academia;

(4) proof of educational credentials pursuant to §133.33 or §133.35 of this chapter (relating to Proof of Educational Qualifications);

(5) a completed Texas Professional Conduct and Ethics Examination;

(6) 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;

(7) Information regarding any criminal history including any judgments, deferred judgments or pre-trial diversions for a misdemeanor or felony provided in a form [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;

(8) documentation of submittal of fingerprints for criminal history record check as required by §1001.272 of the Act;

(9) documentation of passing scores on [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 §133.61(g) of this chapter (relating to Engineering Examinations), if applicable; and

(10) written requests for waivers of the examinations on the fundamentals and/or principles and practices of engineering, if applicable.

(d) Once an alternative application from an engineering educator is received, the board will follow the procedures in §133.85 of this chapter (relating to [Board] Additional Review of and Action on Applications) to review and approve or deny the application.

(e) This section does not prohibit any engineering educator from applying for licensure under the standard application process.

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

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

(a) Pursuant to §1001.311 of the Act, a temporary license may be issued under this section for applicants who:

(1) are citizens of Australia, Canada, the Republic of Korea or the United Mexican States;

(2) are seeking to perform engineering work in Texas for three years or less;

(3) are currently licensed or registered in good standing with Engineers Australia, at least one of the jurisdictions of Canada, the Korean Professional Engineers Association or the United Mexican States; and

(4) meet the following experience requirements:

(A) Applicant currently registered in Australia, Canada or the Republic of Korea shall have at least seven years of creditable engineering experience, three of which must be practicing as a registered or chartered engineer with Engineers Australia, the Korean Professional Engineers Association or Engineers Canada and one of which must be working with or show familiarity with U.S. codes, as evaluated by the board under §133.43 of this chapter (relating to Experience Evaluation).

(B) Applicant currently licensed in United Mexican States shall:

(i) meet the educational requirements of §1001.302(a)(1)(A) of the Act and have 12 or more years of creditable engineering experience, as evaluated by the board under §133.43 of this chapter; or

(ii) meet the educational requirements of §1001.302(a)(1)(B) of the Act and have 16 or more years of creditable engineering experience, as evaluated by the board under §133.43 of this chapter.

(b) The applicant applying for a temporary license from Australia, Canada, the Republic of Korea or the United Mexican States shall submit:

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

(2) proof of educational credentials pursuant to §133.33 or §133.35 of this chapter (relating to Proof of Educational Qualifications);

(3) a supplementary experience record as required under §133.41(1) - (4) of this chapter (relating to Supplementary Experience Record) or a verified curriculum vitae and continuing professional development record;

(4) at least three reference statements as required under §133.51 and §133.53 of this chapter (relating to Reference Providers and Reference Statements);

(5) passing score of TOEFL as described in §133.21(c) of this chapter (relating to Application for Standard License);

(6) information regarding [any criminal history including any] judgments of convictions, deferred judgments or pre-trial diversions, for a misdemeanor or felony provided in a form [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;

(7) documentation of submittal of fingerprints for criminal history record check as required by §1001.272 of the Act;

(8) a statement describing any engineering practice violations, if any, together with documentation from the jurisdictional authority describing the resolution of those charges;

(9) submit a completed Texas Engineering Professional Conduct and Ethics examination;

(10) pay the application fee established by the board; and

(11) a verification of a license in good standing from one of the jurisdictions listed in subsection (a)(3) of this section.

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

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

Filed with the Office of the Secretary of State on December 14, 2022.

TRD-202205016

Lance Kinney

Executive Director

Texas Board of Professional Engineers and Land Surveyors

Earliest possible date of adoption: January 29, 2023

For further information, please call: (512) 440-7723


SUBCHAPTER F. REFERENCE DOCUMENTATION

22 TAC §133.53

The Texas Board of Professional Engineers and Land Surveyors (Board) proposes amendments to 22 Texas Administrative Code, Chapter 133, Subchapter F, specifically §133.53 regarding reference documentation required for licensure of professional engineers in Texas. These proposed changes are referred to as the "proposed rule."

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The rules under 22 Texas Administrative Code Chapter 133 implement Texas Occupations Code, Chapter 1001, the Texas Engineering Practice Act.

The proposed rule primarily includes citation clarifications based on other rule amendments and clarifies rule language. The amendments are related to revisions of Chapter 133, Subchapter H, which clarify the procedure to determine which license applications can be approved directly and which need additional review and information prior to approval.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §133.53, concerning reference statements, includes citation clarifications based on other rule amendments and clarifies rule language.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Lance Kinney, Ph.D., P.E., Executive Director for the Board, has determined that for each year of the first five years the proposed rule is 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 rule is 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.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Dr. Kinney has determined that for each year of the first five years the proposed rule is in effect, there is no estimated additional cost 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 rule is 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 rule 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 rule is in effect, the public benefit will be to clarify and streamline the application review process and to provide a pathway for applicants who contest a board decision on their application to have their case heard at SOAH.

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 rule is in effect, there is no anticipated economic cost to persons who are required to comply with the proposed rule.

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 rule. Because the agency has determined that the proposed rule 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 rule does 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 rule. For each year of the first five years the proposed rule is in effect, the agency has determined the following:

1. The proposed rule does not create or eliminate a government program.

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

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

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

5. The proposed rule does not create a new regulation.

6. The proposed rule does not expand, limit, or repeal a regulation except to provide a clearer path for the review and processing of license applications and a path to contest board decisions on applications to SOAH.

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

8. The proposed rule does not positively or adversely affect this state's economy.

TAKINGS IMPACT ASSESSMENT

The Board has determined no private real property interests are affected by the proposed rule and that the proposed rule does 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 rule does 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 rule is 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 rule is 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, via email to rules@pels.texas.gov, via mail to 1917 S. Interstate 35, Austin, Texas 78741, or faxed to his attention at (512) 440-0417.

STATUTORY AUTHORITY

The rule amendments 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 rules are also proposed under Texas Occupations Code §§1001.302 and 1001.303, concerning license eligibility and application requirements.

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

§133.53.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 engineering 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 licensure. 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) seal the flap of the envelope;

(3) after sealing the envelope, the reference provider shall sign across the sealing edge of the flap of the envelope and cover the signature with transparent tape; and

(4) 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 §133.81[(d) ] of this chapter (relating to Receipt of Applications [and Process]).

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

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

Filed with the Office of the Secretary of State on December 14, 2022.

TRD-202205017

Lance Kinney

Executive Director

Texas Board of Professional Engineers and Land Surveyors

Earliest possible date of adoption: January 29, 2023

For further information, please call: (512) 440-7723


SUBCHAPTER H. REVIEW PROCESS OF APPLICATIONS AND LICENSE ISSUANCE

22 TAC §§133.81, 133.83, 133.85, 133.87, 133.89, 133.97, 133.101

The Texas Board of Professional Engineers and Land Surveyors (Board) proposes rule amendments to and a new rule for 22 Texas Administrative Code, Chapter 133, Subchapter H, regarding the review process of applications and license issuance for professional engineers, specifically proposed amendments to §§133.81, relating to Receipt and Processing of Applications by the Board; 133.83, relating to Executive Director Review, Evaluation, and Processing of Applications; 133.85, relating to Board Review of and Action on Applications; 133.87, relating to Final Actions on Applications; 133.89, relating to Processing of Administratively Withdrawn Applications; 133.97, relating to the Issuance of a License, and proposed new rule §133.101, relating to Proposed Actions on Applications. These proposed changes are referred to as "proposed rules."

BACKGROUND AND SUMMARY

The rules under 22 Texas Administrative Code, Chapter 133 implement Texas Occupations Code, Chapter 1001, the Texas Engineering Practice Act, specifically those provisions in Chapter 1001 that concern license applications. The proposed rules streamline and clarify the Board's application and review process for registration as a professional engineer. Plus, for an applicant whose application is proposed or recommended for denial due to a criminal conviction, the proposed rules add the opportunity for the applicant to request a hearing at the State Office of Administrative Hearings (SOAH) per Texas Occupations Code Chapter 53.

SECTION-BY-SECTION SUMMARY

Proposed amendments to §133.81 clarify the process to receive an application for licensure as a professional engineer and align it with best practices including amending citations and clarification of actions that can occur if an application is submitted fraudulently per Texas Occupations Code §§1001.451 and 1001.452.

Proposed amendments to §133.83 streamline and clarify the process for reviewing license applications for engineers and align it with best practices. They address the correction of deficiencies and clarify that an application must be administratively complete before a technical review of the application and evaluation of an applicant's qualifications may begin. They also provide the steps the agency will take in reviewing an application, and they address reconsideration of denied applications.

Proposed amendments to §133.85 address additional review of license applications and authorize the executive director to propose a corrective action plan to address deficiencies in an application. The amendments also provide for the executive director to refer an application to the licensing committee, as appropriate, including when the deficiency in the application relates to an applicant's criminal history.

Proposed amendments to §133.87 streamline and clarify the process for review of license applications for engineers and align it with best practices. The proposed rule also adds an option for an applicant whose application is proposed to be denied by the Board because of criminal conviction to have 20 days to request, in writing, a hearing at SOAH in alignment with Texas Occupations Code Chapter 53.

Proposed amendments to §133.89 streamline and clarify the process for the administrative withdrawal of a license application.

Proposed amendments to §133.97 clarify the process for the issuance of a license including clarification of citations.

Proposed new rule §133.101 provides a table of suggested actions for the board and staff to adopt or recommend to applicants to address applications with deficiencies.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Dr. Lance Kinney, 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 clarification of rules, processes, and procedures for application review and including an option for an applicant whose application is proposed to be denied due to criminal history issues to be reviewed by SOAH, in alignment with Texas Occupations Code Chapter 53.

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 no new requirements are part of the proposed rules.

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 are not subject to the requirements of Government Code §2001.0045 because the Board is a self-directed, semi-independent agency. Additionally, the proposed rules do not impose 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 to provide a clearer path for the review and processing of registration applications and a path to contest board decisions on applications related to criminal convictions and have them heard at SOAH.

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 and Land Surveyors, via email to rules@pels.texas.gov; via mail to 1917 S. Interstate 35, Austin, Texas 78741, or faxed to his attention at (512) 440-0417.

CERTIFICATION OF LEGAL AUTHORITY

The agency certifies the rule has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

STATUTORY AUTHORITY AND SECTIONS AFFECTED

The proposed rules are proposed pursuant to Texas Occupations Code §§1001.201 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 affect and implement Texas Occupations Code, Sections 53.001 to .153, concerning consequences of criminal conviction.

§133.81.Receipt [and Processing] of Applications [by the Board].

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

(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 licensure as prescribed in this chapter and that he or she is qualified for a license based on these requirements.

(c) Once an application has entered the review process as described in §133.83 of this chapter (relating to Processing, [Executive Director] Review, and 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 license 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 license, 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 licensure subject to passage of an examination [and the application has not begun circulation under the Board Review Process under §133.85 of this chapter (relating to Board Review of and Action on Applications)]. 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 license 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.

(i) All information on an application must be filled out completely and accurately and attested to as complete and accurate by the applicant. Information submitted inaccurately, fraudulently, or deceitfully may result in action by the board up to and including denial of the application.

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

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

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

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

(3) The executive director shall:

(A) accept the application as administratively complete and ready for technical evaluation [for processing and evaluating]; or

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

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

[(A) approved,]

[(B) denied, or]

[(C) reviewed by the professional engineer members of the board in accordance with §133.85 of this chapter (relating to Board Review of and Action on Applications).]

(5) The executive director may approve the application if [without further board review unless the application is accompanied by]:

(A) all administrative and technical requirements have been met according to the appropriate application type as set out in Subchapter C of this chapter (relating to Professional Engineer License Application Requirements); [an unfavorable recommendation by one or more reference providers; or]

(B) all experience required for licensure is acceptable per Subchapter E of this chapter (relating to Experience); [a request for waiver of examination(s), except when the applicant is solely requesting waiver of the examination on the fundamentals of engineering.]

(C) all references meet the requirements of Subchapter F of this chapter (relating to Reference Documentation) and are considered by the agency staff to be favorable; and

(D) the application does not require further review under the criminal history background check requirements of §140.1 of this title (relating to Criminal History and Convictions - Engineers.)

(6) During the technical review of the application, the Executive Director may request additional information or require additional documentation to clarify an application and ensure eligibility as needed.

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

(A) submit the minimum number of [ have sufficient] years of experience to qualify for licensure;[,]

(B) have an education acceptable to the board as prescribed in §133.31 of this chapter (relating to Educational Requirement for Applicants); or[,]

(C) pass an examination within the time allotted.[, or]

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

(8) An applicant whose application has been denied by the executive director under this section shall have 20 calendar days from the date of the denial within which to request a reconsideration and provide additional information to address the deficiencies as set in §133.91 of this chapter (relating to Reconsideration of Denied Application or Requests for Examination Waivers).

(9) [(7)] An application for licensure that is not [cannot be] approved or denied by the executive director pursuant to paragraphs (5) or (7) [and (6)] of this section shall be subject to the procedure set out in §133.85 of this chapter (relating to Additional Review of and Action on Applications) and §133.87 of this chapter (relating to Final Action on Applications) [be circulated among the professional engineer board members].

§133.85.Additional [Board] Review of and Action on Applications.

An application that is not approved or denied per §133.83 of this chapter (related to Processing, Review, and Evaluation of Applications) shall be subject to the following process to determine eligibility for licensure. [The application shall be circulated randomly among the professional engineer board members if any of the conditions listed in paragraph (5)(A) or (B) of §133.83 of this chapter apply or on request of the executive director and shall be processed as follows:]

(1) The executive director will identify the deficiency in the application that prohibits approval as set out in §133.83(5) of this chapter and will draft a Corrective Action Plan (CAP) based on the table in §133.101 of this chapter (relating to Proposed Actions on Applications). The executive director may refer the application and draft CAP to the Licensing Committee for its consideration, before sending the CAP to the applicant, if deemed necessary. [The application is approved if the first reviewing board member agrees with an executive director recommendation of approval.]

(2) The executive director will present the applicant with the CAP in writing. The applicant will have 15 days to respond in writing to the CAP. The applicant shall: [If the executive director or the first reviewing board member determines that the application or a request for waiver of examinations should be denied or requests that the applicant appear before the licensing committee, then circulation shall continue until the application receives at least three votes for either approval or denial of the waiver request(s) or application or a personal interview of the applicant. If, after circulation among all the professional engineer board members, an application does not receive three like votes, the application shall then be referred to the licensing committee for a determination whether the application should be approved or denied or that additional information or a personal appearance of the applicant before the committee is necessary.]

(A) accept the terms of the proposed CAP by signing it; or

(B) request a personal interview with the Licensing Committee as set out in §133.93 of this chapter (relating to Personal Interviews of Applicants).

(3) If the applicant accepts the proposed CAP the applicant will be required to successfully complete all conditions of the CAP prior to approval of the application. [If there are three like votes among the professional engineer board members in favor of the application or if, after circulation among the board members and referral to the licensing committee, the licensing committee determines that an application should be approved, the executive director shall approve the application without further action by the board.]

(4) Criminal History Deficiency. If the executive director determines the deficiency relates to a violation of the criminal history background check requirements as set out in §140.1 of this title (relating to Criminal History and Convictions - Egineers), the executive director shall refer the application to the Licensing Committee for personal interview without first offering the applicant a proposed CAP. [If there are three like votes among the professional engineer board members to deny the application, the licensing committee determines that an application should be denied, or the licensing committee is unable to reach a decision, the application and any such determination shall be presented to the full board at its next regularly scheduled meeting.]

§133.87.Final Action on Applications.

(a) Upon approval of an application by the executive director, the successful completion of the requirements of a Corrective Action Plan (CAP), or the successful completion of the requirements of the Licensing Committee and full board [the licensing committee, or the board] in a manner provided in this subchapter, the executive director shall:

(1) issue a license subject to the applicant's taking and passing the examination on the principles and practice of engineering according to §133.67 of this chapter (relating to Examination on the Principles and Practice of Engineering); or

(2) issue a license to an applicant who has passed the examination on the principles and practice of engineering or who has had that examination waived; and[.]

(3) report all approved applications to the Board.

[(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) pursuant to §133.85 of this chapter (relating to Board Review of and Action on Applications) three of the professional engineer board members vote to deny an application on the basis that the applicant does not meet the requirements of §1001.302 of the Act;]

[(3) a majority of the full board voted to deny an application on the basis that the applicant does not meet the requirements of §1001.302 of the Act; or]

[(4) the applicant did not pass the examination on the principles and practice of engineering in the prescribed time.]

(b) [(c)] The board by vote shall confirm the action taken at its next regularly scheduled meeting.

(c) [(d)] The executive director shall advise the applicant in writing of any decision of the executive director, the Licensing Committee [licensing committee], or the board, as applicable, within 20 days of the decision.

(d) An applicant whose application has been denied by the Board based on criminal conviction, shall have 20 days from the date of the denial within which to request in writing a hearing at the State Office of Administrative Hearings (SOAH).

§133.89.[Processing of] Administratively Withdrawn Applications.

(a) An application may go into Administratively Withdrawn status per §133.83 of this chapter (relating to Processing, Review, and Evaluation of Applications.

(b) [(a)] To reactivate an administratively withdrawn application, the applicant, no later than six months after the application goes into Administratively Withdrawn status, must submit:

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

(2) a new application form complete and 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 §1001.272 of the Act, 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.]

(c) An application that goes into Administratively Withdrawn status will be deemed to have been withdrawn by the applicant six months after it enters that status unless, before the six-month period expires, the applicant corrects all deficiencies and submits all necessary documentation to make the application complete and ready for technical review.

(d) An application that is deemed to have been withdrawn by the applicant per subsection (c) of this section cannot be reactivated. To be considered for a license, an applicant will be required to submit a new application.

(e) Applications that have been deemed to have been withdrawn by the applicant will be reported to the Board.

§133.97.Issuance of License.

(a) A license as a professional engineer shall be issued upon the approval of the application pursuant to §133.87[(a)] of this chapter (relating to Final Action on Applications).

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

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

(1) the license issuance;

(2) the license serial number; and

(3) the instructions to obtain a seal.

(d) Within 60 days from the written notice from the executive director of license issuance, the new license holder shall obtain a seal(s) that is consistent with the Board authorized-design in §137.31 of this title (relating to Seal Specifications).

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

(f) The printed license 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 license number of the license holder.

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

(h) A license issued by the board is as a professional engineer, regardless of branch designations or specialty practices. Practice is restricted only by the license holder's professional judgment and applicable board rules regarding professional practice and ethics.

(i) The records of the board shall indicate a branch of engineering considered by the board or license holder to be a primary area of competency. A license holder shall indicate a branch of engineering by providing:

(1) a transcript showing a degree in the branch of engineering;

(2) a supplementary experience record documenting at least 4 years of experience in the branch of engineering and verified by at least one PE reference provider that has personal knowledge of the license holder's character, reputation, suitability for licensure, and engineering experience; or

(3) verification of successful passage of the examination on the principles and practice of engineering in the branch of engineering.

(j) A license holder may request that the board change the primary area of competency or indicate additional areas of competency by providing one or more of the items listed in paragraphs (1) - (3) of this subsection:

(1) a transcript showing an additional degree in the new branch other than the degree used for initial licensure;

(2) a supplementary experience record documenting at least 4 years of experience in the new branch verified by at least one PE reference provider who has documented competence in the engineering discipline being added that has personal knowledge of the license holder's character, reputation, suitability for licensure, and engineering experience; or

(3) verification of successful passage of the examination on the principles and practice of engineering in the new branch.

(k) All requests relating to branch listings for areas of competency require the review and approval of the executive director or the executive director's designee.

§133.101.Proposed Actions on Applications.

The following is a table of suggested actions the board may impose against applicants for specific circumstances related to an application. The action may be less than or greater than the suggested actions shown in the following table.

Figure: 22 TAC §133.101 (.pdf)

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

Filed with the Office of the Secretary of State on December 14, 2022.

TRD-202205018

Lance Kinney

Executive Director

Texas Board of Professional Engineers and Land Surveyors

Earliest possible date of adoption: January 29, 2023

For further information, please call: (512) 440-7723


22 TAC §133.99

The Texas Board of Professional Engineers and Land Surveyors (Board) proposes the repeal of 22 Texas Administrative Code §133.99, relating to Processing of Applications with a Criminal Conviction.

BACKGROUND AND SUMMARY

The rule that is proposed for repeal contains the current policies and procedures for the evaluation of applications referring to a criminal conviction, including criteria and factors to be considered per Texas Occupations Code, Chapter 53. Adoption of other rules that are published as proposed rules in this same edition of Texas Register will make §133.99 unnecessary. Proposed new rules 22 Texas Administrative Code §§140.1 and 140.3 address the effect of criminal conviction on applications filed with the Board, with engineering and land surveying applications addressed in separate rules.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Dr. Lance Kinney, P.E., Executive Director for the Board, has determined that for each year of the first five years the proposed repeal is 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 repeal.

Dr. Kinney has determined that for each year of the first five years the proposed repeal is 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 repeal.

LOCAL EMPLOYMENT IMPACT STATEMENT

Dr. Kinney has determined that the proposed repeal 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 repeal is in effect, the public benefit will be clarification of rules, processes, and procedures for application review and including an option for an applicant whose application is proposed to be denied due to criminal history issues to be reviewed by SOAH in alignment with Texas Occupations Code, Chapter 53.

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 repeal is in effect, there are no anticipated economic costs to persons who are required to comply with the proposed repeal because no new requirements are part of the proposed repeal.

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 repeal. Since the agency has determined that the proposed repeal 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 repeal is not subject to the requirements of Government Code §2001.0045 because the Board is a self-directed, semi-independent agency. Additionally, the proposed repeal does not impose 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 repeal. For each year of the first five years the proposed repeal is in effect, the agency has determined the following:

1. The proposed repeal does not create or eliminate a government program.

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

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

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

5. The proposed repeal does not create a new regulation.

6. The proposed repeal does not expand an existing regulation but does remove the requirement that new licensees submit a copy of their seal to the board.

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

8. The proposed repeal does 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 repeal and the proposed repeal does 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 repeal does 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 repeal is 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 and Land Surveyors, via email to rules@pels.texas.gov; via mail to 1917 S. Interstate 35, Austin, Texas 78741, or faxed to his attention at (512) 440-0417.

STATUTORY AUTHORITY

The proposed repeal is proposed pursuant to Texas Occupations Code §§1001.201 and .202, which authorize the Board to regulate engineering and land surveying and to make and enforce all rules and regulations and bylaws consistent with the Act as necessary for the performance of its duties, the governance of its own proceedings, and the regulation of the practices of engineering and land surveying in this state. The proposed repeal affects Texas Occupations Code, sections 53.001 to .153, concerning consequences of criminal conviction.

§133.99.Processing of Applications with a Criminal Conviction.

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

Filed with the Office of the Secretary of State on December 13, 2022.

TRD-202205020

Lance Kinney

Executive Director

Texas Board of Professional Engineers and Land Surveyors

Earliest possible date of adoption: January 29, 2023

For further information, please call: (512) 440-7723


CHAPTER 134. LICENSING, REGISTRATION, AND CERTIFICATION FOR SURVEYORS

SUBCHAPTER C. LAND SURVEYOR APPLICATION REQUIREMENTS

22 TAC §§134.21, 134.23, 134.25

The Texas Board of Professional Engineers and Land Surveyors (Board) proposes amendments to 22 Texas Administrative Code, Chapter 134, Subchapter C, specifically §§134.21, 134.23, and 134.25, regarding the application requirements for registration of 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 1071, the Professional Land Surveying Practices Act.

The proposed rules primarily include citation clarifications based on other rule amendments, and they clarify rule language. The amendments are related to revisions of Chapter 134, Subchapter H, which clarify the procedure to determine which registration applications can be approved directly and which need additional review and information prior to approval. The amended rules add a procedure by which applicants whose applications have been initially rejected may seek review of the agency's decision to reject the application.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §134.21, concerning an Application for a Standard Registration, includes citation clarifications based on other rule amendments and clarifies rule language.

The proposed amendment to §134.23, concerning Applications from Standard Registration Holders, includes citation clarifications based on other rule amendments and clarifies rule language.

The proposed amendment to §134.25, concerning Applications from Out-of-State Registration Holders, includes citation clarifications based on other rule amendments and clarifies rule language.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

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.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

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

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 to clarify and streamline the application review process and provide a pathway for applicants who contest a board decision on their application related to criminal convictions to have their cases heard at SOAH.

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 is no anticipated economic costs to persons who are required to comply with the proposed rules.

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 to provide a clearer path for the review and processing of registration applications and a path to contest board decisions on applications related to criminal convictions and have them heard at SOAH.

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 rule is 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, via email to rules@pels.texas.gov, via mail to 1917 S. Interstate 35, Austin, Texas 78741, or faxed to his attention at (512) 440-0417.

STATUTORY AUTHORITY

The rule amendments are proposed pursuant to Texas Occupations Code §§ 1001.101 and 1001.202, which authorize the Board to regulate engineering and land surveying and to make and enforce all rules and regulations and bylaws consistent with the Act as are 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 rules are also proposed under Texas Occupations Code §§1071.252, 1071.254, and 1071.259, concerning registration eligibility and application requirements.

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 pass [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 a passing score on [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 scores, if applicable;

(9) information regarding any [criminal history including any] judgments of convictions, deferred judgments or pre-trial diversions for a misdemeanor or felony provided in a form [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] Processing, Review, and 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.Application from 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] Processing, Review, and 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 passing scores on [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 scores, 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 form [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] Processing, Review, and 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.

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

Filed with the Office of the Secretary of State on December 13, 2022.

TRD-202205021

Lance Kinney

Executive Director

Texas Board of Professional Engineers and Land Surveyors

Earliest possible date of adoption: January 29, 2023

For further information, please call: (512) 440-7723


SUBCHAPTER F. REFERENCE DOCUMENTATION

22 TAC §134.53

The Texas Board of Professional Engineers and Land Surveyors (Board) proposes amendments to 22 Texas Administrative Code, Chapter 134, Subchapter F, specifically §134.53 regarding reference documentation required for registration of professional land surveyors in Texas. These proposed changes are referred to as the "proposed rule."

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

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

The proposed rule primarily includes citation clarifications based on other rule amendments and clarifies rule language. The amendments are related to revisions of Chapter 134, Subchapter H, which clarify the procedure to determine which license applications can be approved directly and which need additional review and information prior to approval.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §134.53, concerning reference statements, includes citation clarifications based on other rule amendments and clarifies rule language.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Lance Kinney, Ph.D., P.E., Executive Director for the Board, has determined that for each year of the first five years the proposed rule is 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 rule is 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.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Dr. Kinney has determined that for each year of the first five years the proposed rule is in effect, there is no estimated additional cost 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 rule is 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 rule 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 rule is in effect, the public benefit will be to clarify and streamline the application review process and to provide a pathway for applicants who contest a board decision on their application to have their case heard at SOAH.

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 rule is in effect, there is no anticipated economic cost to persons who are required to comply with the proposed rule.

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 rule. Because the agency has determined that the proposed rule 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 rule does 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 rule. For each year of the first five years the proposed rule is in effect, the agency has determined the following:

1. The proposed rule does not create or eliminate a government program.

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

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

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

5. The proposed rule does not create a new regulation.

6. The proposed rule does not expand, limit, or repeal a regulation except to provide a clearer path for the review and processing of license applications and a path to contest board decisions on applications to SOAH.

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

8. The proposed rule does not positively or adversely affect this state's economy.

TAKINGS IMPACT ASSESSMENT

The Board has determined no private real property interests are affected by the proposed rule and that the proposed rule does 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 rule does 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 rule is 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 rule is 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, via email to rules@pels.texas.gov, via mail to 1917 S. Interstate 35, Austin, Texas 78741, or faxed to his attention at (512) 440-0417.

STATUTORY AUTHORITY

The rule amendments 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 rules are also proposed under Texas Occupations Code §§1071.252, 1071.254, and 1071.259, concerning registration eligibility and application requirements.

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

§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.

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

Filed with the Office of the Secretary of State on December 13, 2022.

TRD-202205022

Lance Kinney

Executive Director

Texas Board of Professional Engineers and Land Surveyors

Earliest possible date of adoption: January 29, 2023

For further information, please call: (512) 440-7723


SUBCHAPTER H. REVIEW PROCESS OF APPLICATIONS AND REGISTRATION ISSUANCE

22 TAC §§134.81, 134.83, 134.85, 134.87, 134.89, 134.97, 134.101

The Texas Board of Professional Engineers and Land Surveyors (Board) proposes rule amendments and new rules for to 22 Texas Administrative Code, Chapter 134, Subchapter H, regarding the review process of applications and registration issuance for professional land surveyors, specifically proposed amendments to §§134.81, relating to Receipt and Processing of Applications by the Board; 134.83, relating to Executive Director Review, Evaluation, and Processing of Applications; 134.87, relating to Final Actions on Applications; 134.89, relating to Processing of Administratively Withdrawn Applications, and 133.97, relating to Issuance of a Registration. The Board also proposes new rule §134.85, relating to Board Review of and Action on Applications; and new rule §134.101, relating to Proposed Actions on Applications. These proposed changes are referred to as "proposed rules."

BACKGROUND AND SUMMARY

The rules under 22 Texas Administrative Code, Chapter 134 implement Texas Occupations Code, Chapter 1071, specifically those provisions in Chapter 1071 that concern registration applications. The proposed rules streamline and clarify the Board's application and review process for registration as a professional land surveyor. Plus, for an applicant whose application is proposed to be denied due to a criminal-history issue, the proposed rules add the opportunity for the applicant to request a hearing at the State Office of Administrative Hearings (SOAH) per Texas Occupations Code, Chapter 53.

SECTION-BY-SECTION SUMMARY

Proposed amendments to §134.81 clarify the process to receive an application for registration as a profession land surveyor and align it with best practices including amending citations and clarification of actions that can occur if an application is submitted fraudulently per Texas Occupations Code §§1001.451 and 1001.452.

Proposed amendments to §134.83 streamline and clarify the process for reviewing applications for registration of land surveyors and align it with best practices. It addresses the correction of deficiencies, and it clarifies an application must be administratively complete before a technical review of the application and evaluation of an applicant's qualifications may begin. It also provides the steps the agency will take in reviewing an application and addresses reconsideration of denied applications.

Proposed new §134.85 streamlines and clarifies the process for reviewing registration applications for land surveyors and will align it with best practices. The new rule describes a step-by-step process, provides for a corrective action plan, when appropriate, and provides for an application to be referred to the licensing committee when appropriate.

Proposed amendments to §134.87 streamline and clarify the process for registration application review for land surveyors and align it with best practices. The proposed rule also adds an option for an applicant whose application is proposed to be denied by the Board to have 20 days to request in writing a hearing at SOAH in alignment with Texas Occupations Code Chapter 53.

Proposed amendments §134.89 streamline and clarify the process related to the administrative withdrawal of an application for registration.

Proposed amendments to §134.97 clarify the process for the issuance of a license including clarification of citations.

Proposed new rule §133.101 provides a table of suggested actions for the board and staff to recommend to applicants to address applications with deficiencies.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Dr. Lance Kinney, 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 clarification of rules, processes, and procedures for application review and including an option for an applicant whose application is proposed to be denied due to criminal history issues to be reviewed by SOAH, in alignment with Texas Occupations Code Chapter 53.

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 no new requirements are part of the proposed rules.

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 are not subject to the requirements of Government Code §2001.0045 because the Board is a self-directed, semi-independent agency. Additionally, the proposed rules do not impose 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 to provide a clearer path for the review and processing of registration applications and a path to contest board decisions on applications related to criminal convictions and have them heard at SOAH.

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 and Land Surveyors, via email to rules@pels.texas.gov; via mail to 1917 S. Interstate 35, Austin, Texas 78741, or faxed to his attention at (512) 440-0417.

STATUTORY AUTHORITYAND SECTIONS AFFECTED

The proposed rules are proposed pursuant to Texas Occupations Code §§1001.201 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 affect and implement Texas Occupations Code, Sections 53.001 to .153, concerning consequences of criminal conviction.

§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 Processing, [Executive Director] Review, and 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.

(i) All information on an application must be filled out completely and accurately and attested to as complete and accurate by the applicant. Information submitted inaccurately, fraudulently, or deceitfully may result in action by the board up to and including denial of the application.

§134.83.[Executive Director] Processing, Review, and Evaluation [and Processing] of Applications

All references to the executive director in this section shall allow for the delegation of authority by the executive director to other staff members. An application for licensure [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 administratively complete and ready for technical evaluation [for processing and evaluating]; or

(B) acknowledge receipt of the application, [accept the application and] notify the applicant at the earliest possible time of deficiencies with the application, [of deficient information] and give the applicant 60 calendar days to correct deficiencies. If requested by the applicant, the [complete the application.] [The] executive director [or designee] may grant the applicant an additional 30 calendar [-] day period to submit any information identified as necessary to complete the application. If the applicant does not submit the necessary [all] documents or correct deficiencies [required] in the time the board requires [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 administratively complete, the executive director shall perform a technical 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 if: [without further board review unless the application is accompanied by an unfavorable recommendation by one or more reference providers.]

(A) all administrative and technical requirements have been met according to the appropriate application type as set out in Subchapter C of this chapter (relating to Land Surveyor Application Requirements);

(B) all experience required for licensure is acceptable per Subchapter E of this chapter (relating to Experience);

(C) all references meet the requirements of Subchapter F of this chapter (relating to Reference Documentation) and are considered by the agency staff to be favorable; and

(D) the application does not require further review under the criminal history background check requirements of §140.3 of this title (relating to Criminal History and Convictions - Surveyors.)

(6) During the technical review of the application, the Executive Director may request additional information or require additional documentation to clarify an application and ensure eligibility as needed.

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

(A) submit the minimum number of [ 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); or

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

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

(8) An applicant whose application has been denied by the executive director under this section shall have 20 calendar days from the date of the denial within which to request a reconsideration and provide additional information to address the deficiencies as set in §134.91 of this chapter (relating to Reconsideration of Denied Applications).

(9) [(7)] An application for registration that is not [cannot be] approved or denied by the executive director pursuant to paragraphs (5) or (7) [and (6)] of this section shall be subject to the procedure set out in §134.85 of this chapter (relating to Additional Review of and Action on Applications) and §134.87 of this chapter (relating to Final Action on Applications)[be referred to the Licensing and Registration Committee in accordance with 134.93 of this chapter (relating to Personal Interviews of Applicants)].

§134.85.Additional Review of and Action on Applications.

An application that is not approved or denied per §134.83 of this chapter (related to Processing, Review, and Evaluation of Applications) shall be subject to the following process to determine eligibility for registration.

(1) The executive director will identify the deficiency in the application that prohibits approval as set out in §134.83(5) of this chapter and will draft a Corrective Action Plan (CAP) based on the table in §134.101 of this chapter (relating to Proposed Actions on Applications). The executive director may refer the application and draft CAP to the Licensing Committee for its consideration, before sending the CAP to the applicant, if deemed necessary.

(2) The executive director will present the applicant with the CAP in writing. The applicant will have 15 days to respond in writing to the CAP. The applicant shall:

(A) accept the terms of the proposed CAP in writing; or

(B) request a personal interview with the Licensing Committee as set out in §134.93 of this chapter (relating to Personal Interviews of Applicants).

(3) If the applicant accepts the proposed CAP the applicant will be required to successfully complete all conditions of the Recommendation for CAP prior to approval of the application.

(4) Criminal History Deficiency. If the executive director determines the deficiency relates to a violation of the criminal history background check requirements as set out in §140.3 of this title (relating to Criminal History and Convictions - Surveyors), the executive director shall refer the application to the Licensing Committee for personal interview without first offering the applicant a proposed CAP.

§134.87.Final Action on Applications.

(a) Upon approval of an application by the executive director, the successful completion of the requirements of a Corrective Action Plan (CAP), or the successful completion of the requirements of the Licensing Committee and full board [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; and[.]

(3) report all approved applications to the Board.

(b) The board will consider applications presented to it and recommendations it receives from the Licensing Committee.

[(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.]

(c) [(d)] The executive director shall advise the applicant in writing of any decision of the executive director, the Licensing Committee [licensing and registration committee], or the board, as applicable, within 20 days of the decision.

(d) An applicant whose application has been denied by the Board based on criminal conviction shall have 20 days from the date of the denial within which to request in writing a hearing at the State Office of Administrative Hearings (SOAH).

§134.89.[Processing of] Administratively Withdrawn Applications.

(a) An application may be placed in Administratively Withdrawn status per §134.83 of this chapter (relating to Processing, Review, and Evaluation of Applications.

(b) [(a)] To reactivate an administratively withdrawn application, the applicant, no later than six months after the application is placed in Administratively Withdrawn status, must submit:

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

(2) a new application form complete and with signatures;

(3) updated supplementary experience records for the time period since the original 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.]

(c) An application that has been placed in Administratively Withdrawn status will be deemed to have been withdrawn by the applicant six months after it enters that status unless, before the six-month period expires, the applicant corrects all deficiencies and submits all necessary documentation to make the application complete and ready for technical review.

(d) An application that is deemed to have been withdrawn by the applicant per subsection (c) of this section cannot be reactivated. To be considered for a registration, an applicant will be required to submit a new application.

(e) Applications that have been deemed to have been withdrawn by the applicant will be reported to the Board.

§134.97.Issuance 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; and

(3) the instructions to obtain a seal.

(d) Within 60 days from the written notice from the executive director of registration issuance, the new registration holder shall obtain a seal(s) that is consistent with the Board-authorized design in §138.31 of this title [chapter] (relating to Seal Specifications).

(e) Failure to comply with subsection (d) of this section is a violation of board rules and may [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.

§134.101.Proposed Actions on Applications.

The following is a table of suggested actions the board may impose against applicants for specific circumstances related to an application. The action could be less than or greater than the suggested actions shown in the following table.

Figure: 22 TAC §134.101 (.pdf)

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

Filed with the Office of the Secretary of State on December 14, 2022.

TRD-202205023

Lance Kinney

Executive Director

Texas Board of Professional Engineers and Land Surveyors

Earliest possible date of adoption: January 29, 2023

For further information, please call: (512) 440-7723


CHAPTER 140. CRIMINAL HISTORY AND CONVICTIONS

SUBCHAPTER A. CRIMINAL HISTORY AND CONVICTIONS

22 TAC §140.1, §140.3

The Texas Board of Professional Engineers and Land Surveyors (Board) proposes a new chapter and new rules under 22 Texas Administrative Code Part 6. The Board proposes new Chapter 140, Subchapter A, regarding the evaluation of applications for professional engineers and professional land surveyors with criminal convictions, and proposes new rule §140.1, relating to Criminal History and Convictions for Engineers and new rule §140.3, relating to Criminal History and Convictions for Land Surveyors. These proposed changes are referred to as "proposed rules."

BACKGROUND AND SUMMARY

The proposed rules under 22 Texas Administrative Code, Chapter 140 implement Texas Occupations Code, Chapter 1001 and Chapter 1071, regarding processing of applications for engineers and land surveyors respectively. The proposed rules set out the framework that will be used for the evaluation of applications with a criminal history and conviction per Texas Occupations Code Chapter 53. The proposed rules replace current Board Rule §133.99, and instead of addressing engineering and land surveying in one rule, the Board has adopted a separate rule to address each profession.

SECTION-BY-SECTION SUMMARY

Proposed rule §140.1 sets out the framework that the board will use per Texas Occupations Code 53 when considering applications for engineering license from applicants with a conviction history.

Proposed rule §140.3 sets out the framework that the board will use per Texas Occupations Code 53 when considering applications for land surveyor registration or license from applicants with a conviction history.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Dr. Lance Kinney, 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 clarification of rules, processes, and procedures for application review and including an option for an applicant whose application is proposed to be denied due to criminal history issues to be reviewed by SOAH in alignment with Texas Occupations Code Chapter 53.

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 no new requirements are part of the proposed rules.

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 are not subject to the requirements of Government Code §2001.0045 because the Board is a self-directed, semi-independent agency. Additionally, the proposed rules do not impose 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 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 an existing regulation but does provide procedures and guidelines the board will follow that comply with Occupations Code Ch. 53.

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 and Land Surveyors, via email to rules@pels.texas.gov; via mail to 1917 S. Interstate 35, Austin, Texas 78741, or faxed to his attention at (512) 440-0417.

STATUTORY AUTHORITY AND SECTIONS AFFECTED

The proposed rules are proposed pursuant to Texas Occupations Code §§1001.201 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. These proposed rules implement Occupations Code §§53.001 to 53.153.

§140.1.Criminal History and Convictions - Engineers.

(a) Texas Occupations Code, Chapter 53 provides that the board may suspend or revoke an existing license, disqualify a person from receiving a license, or deny a person the opportunity to be examined for a license if the person has been convicted of an offense listed under §53.021(a) or has a deferred adjudication that qualifies as a conviction under §53.021(d). Any such action shall be made after consideration of the factors listed in Texas Occupations Code, §53.022 and §53.023 and the guidelines issued by the board under §53.025.

(b) A person who is incarcerated because of a felony conviction is not eligible to obtain a license or renew a previously issued license under board rules or any statute governing a profession regulated by the board.

§140.3.Criminal History and Convictions - Surveyors.

(a) Texas Occupations Code, Chapter 53 provides that the board may suspend or revoke an existing license or registration, disqualify a person from receiving a license or registration, or deny a person the opportunity to be examined for a license or registration if the person has been convicted of an offense listed under §53.021(a) or has a deferred adjudication that qualifies as a conviction under §53.021(d). Any such action shall be made after consideration of the factors listed in Texas Occupations Code, §53.022 and §53.023 and the guidelines issued by the board under §53.025.

(b) A person who is incarcerated because of a felony conviction is not eligible to obtain a license or registration or renew a previously issued license or registration under board rules or any statute governing a profession regulated 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 December 14, 2022.

TRD-202205025

Lance Kinney

Executive Director

Texas Board of Professional Engineers and Land Surveyors

Earliest possible date of adoption: January 29, 2023

For further information, please call: (512) 440-7723