TITLE 22. EXAMINING BOARDS

PART 3. TEXAS BOARD OF CHIROPRACTIC EXAMINERS

CHAPTER 78. SCOPE OF PRACTICE

22 TAC §78.5

The Texas Board of Chiropractic Examiners (Board) proposes new 22 TAC §78.5 (Delegation of Radiologic Procedures). The Board proposes this rule to comply with Texas Occupations Code §601.252. Section 601.252 requires the Board to adopt rules to regulate how a chiropractor may delegate the performance of radiologic procedures to an unlicensed individual.

The Board's Executive Director, Patrick Fortner, has determined that for the first five-year period the proposed rule is in effect there will be no fiscal implications for state or local government. There will be no adverse effect on small businesses or rural communities, micro-businesses, or local or state employment. There will be no additional economic costs to persons required to comply with the rule as proposed. An Economic Impact Statement and Regulatory Flexibility Analysis is not required because the proposed rule will not have an adverse economic effect on small businesses or rural communities as defined in Texas Government Code §2006.001(1-a) and (2).

Mr. Fortner has determined that for each year of the first five years the proposed rule will be in effect the public benefit is to clarify the delegation authority of a chiropractor who uses an unlicensed individual to perform radiologic procedures.

The Board provides this Government Growth Impact Statement, pursuant to Texas Government Code §2001.0221, for the proposed new 22 TAC §78.5. For each year of the first five years the proposed rule is in effect, Mr. Fortner has determined:

(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 Board.

(4) The proposed rule does not require a decrease or increase in fees paid to the Board.

(5) The proposed rule does create a new regulation.

(6) The proposal does not repeal existing Board rules for an administrative process.

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

(8) The proposed rule does not positively or adversely affect the state economy.

Comments on the proposed rule or a request for a public hearing may be submitted to Christopher Burnett, General Counsel, Texas Board of Chiropractic Examiners, 333 Guadalupe, Suite 3-825, Austin, Texas 78701, via email: rules@tbce.state.tx.us; or fax: (512) 305-6705, no later than 30 days from the date that this proposed rule is published in the Texas Register. Please include the rule name and number in the subject line of any comments submitted by email.

The rule is proposed under Texas Occupations Code §201.152, which authorizes the Board to adopt rules necessary to perform the Board's duties and to regulate the practice of chiropractic, and Texas Occupations Code 601.252, which requires the Board to adopt rules to regulate how a chiropractor may delegate the performance of radiologic procedures to an unlicensed individual.

No other statutes or rules are affected by this proposed rule.

§78.5.Delegation of Radiologic Procedures.

(a) A licensee may delegate a radiologic procedure within the chiropractic scope of practice to an individual who has appropriate training and experience.

(b) A licensee shall be responsible for any delegated radiologic procedure.

(c) A licensee shall document the education, experience, or any other qualifications of an individual to whom a licensee delegates the authority to perform any radiologic procedure.

(d) A licensee, or other licensed individual with delegation authority, shall be on the premises of any place of business where a delegated radiologic procedure is performed.

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 September 22, 2020.

TRD-202003902

Christopher Burnett

General Counsel

Texas Board of Chiropractic Examiners

Earliest possible date of adoption: November 8, 2020

For further information, please call: (512) 799-5489


CHAPTER 80. COMPLAINTS

22 TAC §80.12

The Texas Board of Chiropractic Examiners (Board) proposes new 22 TAC §80.12 (Retention of Complaint Records). The Board proposes this rule to comply with Texas Occupations Code §201.156. Section 201.156 requires the Board to adopt procedures by rule relating to retaining investigative information about licensees.

The Board's Executive Director, Patrick Fortner, has determined that for the first five-year period the proposed rule is in effect there will be no fiscal implications for state or local government. There will be no adverse effect on small businesses or rural communities, micro-businesses, or local or state employment. There will be no additional economic costs to persons required to comply with the rule as proposed. An Economic Impact Statement and Regulatory Flexibility Analysis is not required because the proposed rule will not have an adverse economic effect on small businesses or rural communities as defined in Texas Government Code §2006.001(1-a) and (2).

Mr. Fortner has determined that for each year of the first five years the proposed rule will be in effect the public benefit is to clarify the length of time the Board may maintain investigative material concerning licensees.

The Board provides this Government Growth Impact Statement, pursuant to Texas Government Code §2001.0221, for the proposed new 22 TAC §80.12. For each year of the first five years the proposed rule is in effect, Mr. Fortner has determined:

(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 Board.

(4) The proposed rule does not require a decrease or increase in fees paid to the Board.

(5) The proposed rule does create a new regulation.

(6) The proposal does not repeal existing Board rules for an administrative process.

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

(8) The proposed rule does not positively or adversely affect the state economy.

Comments on the proposed rule or a request for a public hearing may be submitted to Christopher Burnett, General Counsel, Texas Board of Chiropractic Examiners, 333 Guadalupe, Suite 3-825, Austin, Texas 78701, via email: rules@tbce.state.tx.us; or fax: (512) 305-6705, no later than 30 days from the date that this proposed rule is published in the Texas Register. Please include the rule name and number in the subject line of any comments submitted by email.

The rule is proposed under Texas Occupations Code §201.152, which authorizes the Board to adopt rules necessary to perform the Board's duties and to regulate the practice of chiropractic, and Texas Occupations Code 201.156, which requires the Board to adopt procedures by rule relating to retaining investigative information about licensees.

No other statutes or rules are affected by this proposed rule.

§80.12.Retention of Complaint Records.

The Board shall maintain all information concerning complaints in accordance with the agency's current records retention schedule as approved by the Texas State Library and Archives Commission.

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 September 22, 2020.

TRD-202003903

Christopher Burnett

General Counsel

Texas Board of Chiropractic Examiners

Earliest possible date of adoption: November 8, 2020

For further information, please call: (512) 799-5489


PART 6. TEXAS BOARD OF PROFESSIONAL ENGINEERS AND LAND SURVEYORS

CHAPTER 138. COMPLIANCE AND PROFESSIONALISM FOR SURVEYORS

The Texas Board of Professional Engineers and Land Surveyors (Board) proposes new rules in 22 Texas Administrative Code, Chapter 138, specifically §§138.31, 138.33, 138.35, 138.37, 138.51, 138.53, 138.55, 138.57, 138.59, 138.61, 138.63, 138.65, 138.73, 138.75, 138.77, 138.79, 138.81, 138.83, 138.85, 138.87, 138.89, 138.91, 138.93, 138.95, and 138.97, regarding professional practice requirements for professional land surveyors in Texas. These proposed changes are referred to as "proposed rules."

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The rules under 22 Texas Administrative Code Chapter 138 implement Texas Occupations Code, Chapter 1001, the Texas Engineering Practice Act, and Occupations Code, Chapter 1071, the Professional Land Surveying Practices Act.

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

As required by HB 1523, the operations of the two agencies have been merged into one, including compliance and enforcement and professional practice requirements for Registered Professional Land Surveyors (RPLS) and Licensed State Land Surveyors (LSLS). The Texas Board of Professional Land Surveying's rules (22 Texas Administrative Code, Chapter 663), relating to standards of professional responsibility and rules of conduct for land surveyors, have been merged into Chapter 138 per the guidance of the Secretary of State. These rules have been formatted to be similar to the compliance and professionalism rules for engineers (Chapter 137), and edited for formatting and clarity.

SECTION-BY-SECTION SUMMARY

The proposed rules create a new §138.31, concerning seal specifications for professional land surveyors. This section describes the specifications of the seal required to be obtained upon issuance of a license or registration per §134.97.

The proposed rules create a new §138.33, concerning the requirements and conditions for sealing professional land surveying work. This section consolidates and clarifies various rules from Chapter 663 concerning sealing requirements.

The proposed rules create a new §138.35, concerning the use of electronic seals and signatures, in lieu of physical or ink seals and signatures, on professional land surveying work.

The proposed rules create a new §138.37, concerning sealing misconduct. This section clarifies certain violations of sealing requirements, including prohibitions against sealing if the work can endanger the public, or if a surveyor's registration is inactive, suspended, or revoked. It also states that a non-registrant may not sign or seal professional land surveying work.

The proposed rules create a new §138.51, concerning general ethical practice requirements. This section consolidates and clarifies various rules from Chapter 663 concerning general practice, including reporting alleged violations, responding to board inquiries, and aiding and abetting unregistered land surveying firms.

The proposed rules create a new §138.53, concerning requirements for a professional land surveyor to comply with the Professional Services Procurement Act, Texas Government Code, Chapter 2254.

The proposed rules create a new §138.55, concerning requirements for a professional land surveyor to protect the public. This section consolidates and clarifies various rules from Chapter 663, including requirements to follow generally accepted surveying standards and procedures, not commit acts which may constitute incompetence or gross negligence, and report potential violations of the Act and board rules.

The proposed rules create a new §138.57, concerning requirements for professional land surveyors to be objective and truthful. This section consolidates and clarifies various rules from Chapter 663, including prohibiting fraudulent, deceitful, or misleading assertions; communicating professional concerns regarding surveying work; and disclosing potential conflicts of interest.

The proposed rules create a new §138.59, concerning requirements for surveyors to only practice in their area of expertise and competence. This section consolidates and clarifies various rules from Chapter 663 concerning competent practice.

The proposed rules create a new §138.61, concerning requirements to maintain the confidentiality of clients. This section consolidates and clarifies various rules from Chapter 663.

The proposed rules create a new §138.63, concerning the surveyor's responsibility to the profession. This section consolidates and clarifies various rules from Chapter 663, including that a surveyor must: (1) follow codes and ordinances;(2) exercise care and diligence in their practice; (3) act as a faithful agent to their client and employer; (4) and not aid or abet an unlicensed or unregistered individual from practicing professional land surveying. It also prohibits retaliating against someone who files a complaint; accepting gifts or favors for work; or accepting payment from two or more parties for the same work.

The proposed rules create a new §138.65, concerning actions in another jurisdiction. This section clarifies that the board can consider and take action on a finding of violations of land surveying laws or rules in another jurisdiction.

The proposed rules create a new §138.73, concerning surveying firm record modifications. It sets out reporting requirements for updates to surveying firm records, such as contact information and registered land surveyors associated with the firm.

The proposed rules create a new §138.75, concerning surveying firm renewals and expiration. This section sets out renewal dates for surveying firms and the process to renew late registrations.

The proposed rules create a new §138.77, concerning surveying firm compliance. This section consolidates and clarifies various rules from Chapter 663, including requirements that a surveying firm must have at least one registered land surveyor on staff to offer professional surveying services and that a firm must include their firm name and number on work released by the firm.

The proposed rules create a new §138.79, concerning requirements for a governmental entity to comply with the Professional Services Procurement Act, Texas Government Code, Chapter 2254, when procuring professional land surveying services.

The proposed rules create a new §138.81, concerning professional and technical standards for the practice of professional land surveying and is based on rule §663.13 from the Texas Board of Professional Land Surveying.

The proposed rules create a new §138.83, concerning precision and accuracy of surveying measurements and is based on rule §663.15 from the Texas Board of Professional Land Surveying.

The proposed rules create a new §138.85, concerning technical aspects and requirements of boundary construction and is based on rule §663.16 from the Texas Board of Professional Land Surveying.

The proposed rules create a new §138.87, concerning technical aspects and requirements for monumentation and is based on rule §663.17 from the Texas Board of Professional Land Surveying.

The proposed rules create a new §138.89, concerning requirements for certification of standards of practice and is based on rule §663.18 from the Texas Board of Professional Land Surveying.

The proposed rules create a new §138.91, concerning requirements for and development of surveying work including drawings and written descriptions and reports. This section is based on rule §663.19 from the previous land surveying board.

The proposed rules create a new §138.93, concerning subdivision plats and is based on rule §663.20 from the Texas Board of Professional Land Surveying.

The proposed rules create a new §138.95, concerning technical aspects and requirements for descriptions prepared for political subdivisions and is based on rule §663.21 from the Texas Board of Professional Land Surveying.

The proposed rules create a new §138.97, concerning technical aspects and requirements for easement depictions and is based on rule §661.33 from the Texas Board of Professional Land Surveying.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

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

Dr. Kinney has determined that for each year of the first five years the proposed rules are in effect, there is no estimated increase or loss in revenue to the state or local government as a result of enforcing or administering the proposed 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 the clear requirements for the efficient and effective practice by professional land surveyors in accordance with HB 1523 and Texas Occupations Code chapters 1001 and 1071.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL

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

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

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

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

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

GOVERNMENT GROWTH IMPACT STATEMENT

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

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

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

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

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

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

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

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

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

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

TAKINGS IMPACT ASSESSMENT

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

ENVIRONMENTAL RULE ANALYSIS

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

PUBLIC COMMENTS

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

SUBCHAPTER B. SEALING REQUIREMENTS

22 TAC §§138.31, 138.33, 138.35, 138.37

STATUTORY AUTHORITY

The 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 and Texas Occupations Code §1071, as necessary for the performance of its duties, the governance of its own proceedings, and the regulation of the practices of engineering and land surveying in this state. In addition to the foregoing statutory bases, §138.65 is proposed pursuant to Texas Occupations Code §1071.401, which authorizes TBPELS to take disciplinary action against licensees and registrants for statute and rule violations. Section 138.53 is proposed pursuant to Texas Occupations Code §§1001.201, 1001.202, and 1001.203.

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

§138.31.Seal Specifications.

(a) Upon issuance of a registration as a registered professional land surveyor, each registration holder is required to obtain a seal under the requirements of §134.97 of this title (relating to Issuance of Registration) and submit an impression of the seal or an electronic seal, and an original or an electronic signature to the board for board records.

(b) Physical and electronic seals shall be of the design illustrated in this section and shall be no larger than two inches. Regardless of seal size the surveyor's name and number must be clearly legible.

(c) All physical seals obtained and used by registration holders must leave a permanent ink image or permanent impression of the seal attached to the surveying work.

(d) All seals obtained and used by registration holders shall contain any legal name, commonly accepted variation of the legal name, or initial combination with the surname as currently listed with the board and in the usual written signature. Nicknames shall not be permitted on a seal in lieu of a legal name or initial combination. The name can be displayed on the seal using all uppercase letters such as "LESLIE H. DOE" or using the standard combination of upper and lowercase letters, such as "Leslie H. Doe". If after registration, a registration holder legally changes his/her name, the registration holder must have a new seal or seals made showing the new legal name and submit an imprint or imprints of the new seal(s) to the board for review, approval, and processing within 60 days of name change.

Figure: 22 TAC §138.31(d) (.pdf)

(e) Preprinting of blank forms with an surveyor's seal, or the use of decal or other seal replicas is prohibited.

(f) When signing a surveying work, the surveyor may utilize the designation "R.P.L.S." or other terms as described in §138.1 of this chapter (relating to Registration Holder Designations).

(g) This section does not prevent the reproduction of sealed and signed, original works for distribution.

(h) Upon issuance of a license as a licensed state land surveyor, each license holder is required to obtain an additional seal.

Figure: 22 TAC §138.31(h) (.pdf)

§138.33.Sealing Procedures.

(a) The purpose of the registered professional land surveyors and licensed state land surveyor seal is to assure the user of the surveying product that the work has been performed or directly supervised by the professional surveyor named and to delineate the scope of the surveyor's work.

(b) Registration and licensed holders shall only seal work done by them, performed under their direct supervision as defined in §131.2 of this title (relating to Definitions). Upon sealing, surveyors take full professional responsibility for that work.

(c) When a license or registration holder reviews and elects to incorporate the work products of others into a signed and sealed survey document, those items shall be clearly labeled as such and shall clearly indicate the identity of the originator.

(d) Registration holders shall take reasonable steps to ensure the security of their physical or electronic seals and electronic signatures. For electronic seals and electronic signatures, the surveyor must have reasonable security measures in place to protect these files. In the event of loss of a seal or electronic signature, the surveyor will, as soon as possible, but no later than 30 days of discovery, give written notification of the facts concerning the loss to board.

(e) Preliminary documents released from a land surveyor's control shall identify the purpose of the document, the land surveyor of record and the land surveyor's registration number, and the release date. Such preliminary documents shall not be signed or sealed and shall bear the following statement in the signature space or upon the face of the document: "Preliminary, this document shall not be recorded for any purpose and shall not be used or viewed or relied upon as a final survey document". Preliminary documents released from the land surveyor's control which include this text in place of the land surveyor's signature need not comply with the other minimum standards promulgated in this chapter.

(f) License and registration holders shall affix their seal and original signature or electronic seal and signature with the date on the final version of their professional surveying work before such work is released from their control. The signature and date shall not obscure the surveyor's name or registration number in the seal.

(g) Work performed by more than one registration holder shall be sealed in a manner such that all surveying work can be clearly attributed to the responsible registration holder or registration holders. When surveying work on which two or more registration holders have worked, the seal and signature of each registration holder shall be placed on the surveying work with a notation describing the work done under each registration holder's responsible charge.

(h) Registered employees of the state, its political subdivisions, or other public entities are responsible for sealing their original surveying work; however, such registered employees engaged in review and evaluation for compliance with applicable law or regulation of surveying work submitted by others, or in the preparation of general planning documents, a proposal for decision in a contested case or any similar position statement resulting from a compliance review, need not seal the review reports, planning documents, proposals for decision, or position statements.

(i) A local authority may require an original seal and/or signature on reproduced documents.

(j) Any surveying work issued by a registration holder for land or property in this state must include the registration holder's seal placed on the document. A registration holder is not required to use a Texas seal if the surveying work is located in another state or country.

(k) A surveyor may securely transmit his or her final version of surveying work electronically provided that work bears the surveyor's seal and uses one of the techniques described in §138.35(a) of this chapter (relating to Electronic Seals and Electronic Signatures) and must employ reasonable security measures to make the documents unalterable. Electronic correspondence of this type may be followed by a hard copy containing the surveyor's printed name, date, signature and the designation "R.P.L.S." or other terms described in §138.1 of this chapter (relating to Registration Holder Designations).

(l) A registration holder is not required to use a seal for a project for which the registration holder is not required to hold a registration under the Surveying Act.

(m) All surveying documents released, issued, or submitted by a registration holder, including preliminary documents, shall clearly indicate the firm name and registration number of the surveying firm by which the professional surveyor is employed.

(1) If the surveyor is employed by a local, State, or Federal Government agency, then only the name of the agency shall be required.

(2) If the surveyor is exempt from sealing a document under subsection (l) of this section, but elects to seal a document, then only the name of the employer shall be required.

(n) Licensed state land surveyors must sign and seal surveying documents and surveying work submitted to the General Land Office, including field notes, plats, and reports, with both their registered professional land surveyor seal and the licensed state land surveyor seal.

§138.35.Electronic Seals and Electronic Signatures.

(a) Registered professional surveyors shall maintain the security of their electronic seals and electronic signatures. The following methods are allowed:

(1) Registered professional surveyors may electronically copy their original hard copy work that bears their seal, original signature, and date and transmit this work in a secure electronic format.

(2) An surveyor may create an electronic seal and electronic signature for use in transmitting electronically formatted surveying work, regardless of whether the work was originally in hard copy or electronic format.

(b) As an alternative to electronic sealing and electronic signatures, surveyors shall affix their original seals and signatures and date to their surveying work as specified in §138.33(f) of this chapter (relating to Sealing Procedures).

§138.37.Sealing Misconduct.

(a) A registration holder is guilty of misconduct and subject to disciplinary action if the registration holder:

(1) knowingly signs or seals any surveying document or product if its use or implementation may endanger the health, safety, property or welfare of the public.

(2) signs or affixes a seal on any document or product when the registration is inactive or has been revoked, suspended, or has expired.

(3) allows others access to his or her electronic files containing his or her seal and/or electronic signature, unless access is explicitly authorized for particular surveying work.

(b) A person not registered by the board shall not use, cause to be used, affix, or cause to be affixed or in any other manner, regardless of the means, attach or in any way depict an surveying seal or a representation of an surveying seal without the express permission of the currently active registration holder.

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 September 28, 2020.

TRD-202004016

Lance Kinney

Executive Director

Texas Board of Professional Engineers and Land Surveyors

Earliest possible date of adoption: November 8, 2020

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


SUBCHAPTER C. PROFESSIONAL CONDUCT AND ETHICS

22 TAC §§138.51, 138.53, 138.55, 138.57, 138.59, 138.61, 138.63, 138.65

STATUTORY AUTHORITY

The 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 and Texas Occupations Code §1071, as necessary for the performance of its duties, the governance of its own proceedings, and the regulation of the practices of engineering and land surveying in this state. Section §138.53 is proposed pursuant to Texas Occupations Code §§ 1001.201, 1001.202, and 1001.203. In addition to the foregoing statutory bases, §138.65 is proposed pursuant to Texas Occupations Code §1071.401, which authorizes TBPELS to take disciplinary action against licensees and registrants for statute and rule violations.

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

§138.51.General Practice.

(a) The practice of the land surveying profession is essential to the orderly use of our physical environment, and the technical work resultant thereof has important effects on the welfare, property, economy, and security of the public; therefore, the practice of professional land surveying shall be conducted with the highest degree of ethical standards.

(b) Registration holders having knowledge of any alleged violation of the Act and/or board rules shall cooperate with the board in furnishing such information or assistance as may be required.

(c) A registration holder shall respond to the board in writing to all written requests for information regarding all inquiries under the jurisdiction of the board no later than 21 days of receipt or by the date specified in board correspondence. A registration holder shall fully comply with final decisions and orders of the board. Failure to comply with these matters will constitute a separate offense of misconduct and will subject the registration holder to any of the penalties provided under §1001.451(2), (3), or (4) and §1001.501.

(d) Any registration holder who directly or indirectly enters into any contract, arrangement, plan, or scheme with any person, firm, partnership, association, or corporation or other business entity which in any manner results in a violation of §138.77 of this title (relating to Firm Registration Compliance) shall be subject to legal and disciplinary actions provided under §1001.451(2), (3), or (4) and §1001.501. Professional surveyors shall perform or directly supervise the surveying work of any subordinates as characterized in §131.2 of this title (relating to Definitions). Under no circumstances shall surveyors work in a part-time arrangement with a firm not otherwise in full compliance with §138.77 of this chapter (relating to Firm Registration Compliance) in a manner that could enable such firm to offer or perform professional surveying services.

(e) A registered professional land surveyor may offer or perform surveying services on a full or part-time basis as a firm or other business entity if registered pursuant to the requirements of Chapter 136 of this title (Relating to Firm Registration).

§138.53.Surveyor Standards of Compliance with Professional Services Procurement Act.

(a) A registered professional surveyor shall not submit or request, orally or in writing, a competitive bid to perform professional surveying services for a governmental entity unless specifically authorized by state law and shall report to the board any requests from governmental entities and/or their representatives that request a bid or cost and/or pricing information or any other information from which pricing or cost can be derived prior to selection based on demonstrated competence and qualifications to perform the services.

(b) For the purposes of this section, competitive bidding to perform surveying services includes, but is not limited to, the submission of any monetary cost information in the initial step of selecting qualified surveyors. Cost information or other information from which cost can be derived must not be submitted until the second step of negotiating a contract at a fair and reasonable cost.

(c) This section does not prohibit competitive bidding in the private sector.

§138.55.Surveyors Shall Protect the Public.

(a) Surveyors shall be entrusted to protect the health, safety, property, and welfare of the public in the practice of their profession. The public as used in this section and other rules is defined as any individual(s), client(s), business or public entities, or any member of the general population whose normal course of life might reasonably include an interaction of any sort with the surveying work of the registration holder.

(b) Surveyors shall not perform any surveying function which, when measured by generally accepted surveying standards or procedures, is reasonably likely to result in the endangerment of lives, health, safety, property, or welfare of the public. Any act or conduct which constitutes incompetence or gross negligence, or a criminal violation of law, constitutes misconduct and shall be subject to disciplinary action by the board.

(c) Surveyors shall first notify involved parties of any land surveying decisions or practices that might endanger the health, safety, property or welfare of the public. When, in an surveyors's judgment, any risk to the public remains unresolved, that surveyor shall report any fraud, gross negligence, incompetence, misconduct, unethical or illegal conduct to the board or to proper civil or criminal authorities.

§138.57.Surveyors Shall Be Objective and Truthful.

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

(1) fraudulent;

(2) deceitful; or

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

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

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

(d) A potential conflict of interest exists when a surveyor accepts employment when a reasonable probability exists that the surveyor's own financial, business, property, or personal interests may affect any professional judgment, decisions, or practices exercised on behalf of the client or employer. A surveyor may accept such an employment only if all parties involved in the potential conflict of interest are fully informed in writing and the client or employer confirms the knowledge of the potential conflict in writing. A- surveyor in a potential conflict of interest employment shall maintain the interests of the client and other parties as provided by §138.61 of this title (relating to Surveyors Shall Maintain Confidentiality of Clients) and other rules and statutes.

§138.59.Surveyors' Actions Shall Be Competent.

(a) Surveyors shall practice only in their areas of competence.

(b) The surveyor shall not perform any surveying assignment for which the surveyor is not qualified by education or experience to perform adequately and competently. However, a surveyor may accept an assignment which includes phases outside of the surveyor's area of competence if those other phases are performed by qualified registered professionals, consultants, associates, or employees.

(c) The surveyor shall not express a surveying opinion which is contrary to generally accepted surveying principles without fully disclosing the basis and rationale for such an opinion.

§138.61.Surveyors Shall Maintain Confidentiality of Clients.

(a) The surveyor may reveal confidences and private information only with a fully informed client's or employer's consent, or when required by law or court order; or when those confidences, if left undisclosed, would constitute a threat to the health, safety, or welfare of the public.

(b) The surveyor shall not use a confidence or private information regarding a client or employer to the disadvantage of such client or employer or for the advantage of a third party.

(c) The surveyor shall exercise reasonable care to prevent unauthorized disclosure or use of private information or confidences concerning a client or employer by the engineer's employees and associates.

§138.63.Surveyors' Responsibility To The Profession.

(a) Surveyors shall engage in professional and business activities related to the practice of surveying in an honest and ethical manner.

(b) The surveyor must:

(1) meet all of the applicable professional practice requirements of federal, state and local statutes, codes, regulations, rules, ordinances or standards in the performance of surveying services;

(2) exercise reasonable care or diligence to prevent the surveyor's partners, associates, and employees from engaging in conduct which, if done by the surveyor, would violate any provision of the Surveying Act, board rule, or any of the professional practice requirements of federal, state and local statutes, codes, regulations, rules or ordinances in the performance of surveying services;

(3) exercise reasonable care to prevent the association of the surveyor's name, professional identification, seal, firm or business name in connection with any venture or enterprise which the surveyor knows, or should have known, is engaging in trade, business or professional practices of a fraudulent, deceitful, or dishonest nature, or any action which violates any provision of the Surveying Act or board rules;

(4) act as faithful agent for their employers or clients;

(5) conduct surveying and related business affairs in a professional manner in interactions with involved parties and employees. Unprofessional conduct may include, but is not limited to, misrepresentation in billing; sale and/or performance of unnecessary work; or conduct that harasses or intimidates another party; and

(6) practice surveying in a careful and diligent manner.

(c)The surveyor shall not:

(1) aid or abet, directly or indirectly, any unlicensed person or business entity in the unlawful practice of surveying;

(2) retaliate against a person who provides reference material for an application for a license or who in good faith attempts to bring forward an allegation of wrongdoing;

(3) give, offer, or promise to pay or deliver, directly or indirectly, any commission, gift, favor, gratuity, benefit, or reward as an inducement to secure any specific surveying work or assignment;

(4) accept compensation or benefits from more than one party for services pertaining to the same project or assignment; or

(5) solicit professional employment in any false or misleading advertising.

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

§138.65.Action in Another Jurisdiction.

(a) The surveyor shall not practice or offer to practice surveying in any other jurisdiction in violation of the laws regulating the practice of professional surveying in that jurisdiction. A finding by such jurisdiction of illegal practice or offer to practice is misconduct and will subject the surveyor to disciplinary action in Texas.

(b) Any disciplinary actions taken by another jurisdiction on a matter which would constitute a violation of the Surveying Act or board rules shall be sufficient cause for disciplinary action by this board. A certified copy of the board Order or Final Action from another jurisdiction shall be sufficient evidence to take disciplinary action in this state.

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 September 28, 2020.

TRD-202004017

Lance Kinney

Executive Director

Texas Board of Professional Engineers and Land Surveyors

Earliest possible date of adoption: November 8, 2020

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


SUBCHAPTER D. FIRM AND GOVERNMENT ENTITY COMPLIANCE

22 TAC §§138.73, 138.75, 138.77, 138.79

STATUTORY AUTHORITY

The 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 and Texas Occupations Code §1071, as necessary for the performance of its duties, the governance of its own proceedings, and the regulation of the practices of engineering and land surveying in this state.

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

§138.73.Firm Record Modifications.

(a) Each registered surveying firm shall notify the board in writing not later than 30 days after a change in the business entity's:

(1) physical or mailing address, electronic mail address, telephone or facsimile number or other contact information;

(2) officers or directors;

(3) employment status of the professional surveyors of the firm;

(4) operation including dissolution of the firm or if the firm no longer offers to provide or is not providing surveying services to the public in Texas; or

(5) operation including addition or dissolution of branch and/or subsidiary offices.

(b) Notice shall include, as applicable, the:

(1) full legal trade or business name of the entity;

(2) the firm registration number;

(3) telephone number of the business office;

(4) name and license number of the license holder employed or leaving the entity;

(5) description of the change; and

(6) effective date of this change.

§138.75.Registration Renewal And Expiration.

(a) The certificate of registration shall be valid until December 31 of the year registered. The board shall notify each firm holding a certificate of registration of the date of the expiration and the amount of the fee that shall be required for its renewal for one year, at least one month in advance of the date of the expiration. The renewal notice shall be mailed to the last address provided by the firm to the board. The certificate of registration may be renewed by completing the renewal application and paying the annual registration renewal fee set by the board. It is the sole responsibility of the firm to pay the required renewal fee prior to the expiration date, regardless of whether the renewal notice is received.

(b) A certificate of registration which has been expired for less than one year may be renewed by completing the renewal statement sent by the board and payment of two (2) times the normal renewal fee. When renewing an expired certificate of registration, the authorized official of the firm shall submit a written a statement of whether surveying services were offered, pending, or performed for the public in Texas during the time the certificate of registration was expired.

(c) If a certificate of registration has been expired for more than one year, the firm must re-apply for certification under the laws and rules in effect at the time of the new application and shall be issued a new certificate of registration serial number if the new application is approved.

(d) The renewal fee will not be refunded.

§138.77.Firm Registration Compliance.

(a) Any firm or other business entity shall not offer or perform surveying services to the public unless registered with the board, pursuant to the requirements of Chapter 136 of this title (relating to Firm Registration).

(b) A firm shall provide that at least one full-time active registration holder is employed with the entity and that the active registration holder performs or directly supervises all surveying work and activities that require a registration that is performed in the primary, branch, remote, or project office(s).

(c) An active registration holder who is a sole practitioner shall satisfy the requirement of the regular, full-time employee.

(d) No surveying services are to be offered to or performed for the public in Texas by a firm while that firm does not have a current certificate of registration.

(e) A business entity that offers or is engaged in the practice of surveying in Texas and is not registered with the board or has previously been registered with the board and whose registration has expired shall be considered to be in violation of the Act and board rules and will be subject to administrative penalties as set forth in the Act and board rules.

(f) The board may revoke a certificate of registration that was obtained in violation of the Act and/or board rules including, but not limited to, fraudulent or misleading information submitted in the application or lack of employee relationship with the designated professional surveyor for the firm.

(g) If a firm has notified the board that it is no longer offering or performing surveying services to the public, including the absence of a regular, full-time employee who is an active professional surveyor registered in Texas, the certificate of registration record will be placed in inactive status until the board is notified of resumed offering and performing of services. If the firm certificate of registration is inactive, the certificate of registration will expire under the same requirements of subsection (e) of this section unless renewed.

(h) All surveying documents released, issued, or submitted by or for a registered surveying firm, including preliminary documents, must clearly indicate the firm name and registration number.

(i) A firm registered under Chapter 136 of this title may voluntarily surrender the registration by submitting a request in writing provided that the firm:

(1) is in good standing; and

(2) does not have an enforcement case pending before the board.

(j) A firm registration that has been voluntarily surrendered may not be renewed. A firm which has voluntarily surrendered a registration may apply for a new registration.

(k) Each firm offering surveying services to the public shall notify consumers and service recipients of the name, mailing address, and telephone number of the board for the purpose of directing complaints to the board. This can be accomplished by:

(1) A sign prominently displayed in the place of business of each registrant offering professional land surveying services;

(2) On a bill for professional land surveying service;

(3) On each written contract for services; or

(4) On a firm's website.

§138.79.Standards For Compliance With Professional Services Procurement Act.

When procuring professional surveying services, a governmental entity and/or its representative(s) shall comply with the requirements of Subchapter A, Chapter 2254, Texas Government Code and shall select and award on the basis of demonstrated competence and qualifications to perform the services for a fair and reasonable price and shall not select services or award contracts on the basis of competitive bidding.

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 September 28, 2020.

TRD-202004018

Lance Kinney

Executive Director

Texas Board of Professional Engineers and Land Surveyors

Earliest possible date of adoption: November 8, 2020

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


SUBCHAPTER E. PROFESSIONAL AND TECHNICAL STANDARDS

22 TAC §§138.81, 138.83, 138.85, 138.87, 138.89, 138.91, 138.93, 138.95, 138.97

STATUTORY AUTHORITY

The 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 and Texas Occupations Code §1071, as necessary for the performance of its duties, the governance of its own proceedings, and the regulation of the practices of engineering and land surveying in this state.

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

§138.81.Introduction.

Professional land surveying performed in Texas, unless otherwise specifically exempted herein, shall meet or exceed the requirements of these standards. The Board considers any survey, the purpose of which is to delineate, segregate, separate, or partition any interest in real property of any kind, under these standards except when prepared pursuant to §138.93 of this title (relating to Subdivision Plat).

§138.83.Precision and Accuracy.

Survey measurements shall be made with equipment and methods of practice capable of attaining the accuracy and tolerances required by the professional land surveying services being performed. Areas, if reported, shall be produced, recited, and/or shown only to the least significant number compatible with the precision of closure.

§138.85.Boundary Construction.

When delineating a boundary line as an integral portion of a survey, the land surveyor shall:

(1) Respect junior/senior rights for boundary retracement;

(2) Follow the footsteps of the original land surveyor;

(3) Follow the documented records of the land title affecting the boundaries being surveyed;

(A) Rely on the appropriate deeds and/or other documents including those for adjoining parcels for the location of the boundaries of the subject parcel(s).

(B) A land surveyor assuming the responsibility of performing a land survey also assumes the responsibility for such research of adequate thoroughness to support the determination of the location of the boundaries of the land being surveyed. The land surveyor may rely on record data related to the determination of boundaries furnished for the registrants' use by a qualified provider, provided the registrant reasonably believes such data to be sufficient and notes, references, or credits the documentation by which it is furnished.

(C) All boundaries shall be connected to identifiable physical monuments related to corners of record dignity. In the absence of such monumentation the land surveyor's opinion of the boundary location shall be supported by other appropriate physical evidence, which shall be explained in a land surveyor's sketch or written report.

(D) Shall review the record instruments that identify the adjacent properties researched to prepare the boundary and cite the record instruments on the drawing.

(4) Follow the intent of the boundary location as evidenced by the record;

(5) Respect the proper application of the rules of dignity (priority) of calls, and applicable statutory and case law of Texas.

§138.87.Monumentation.

(a) All monuments set by registered professional land surveyors shall be set at sufficient depth to retain a stable and distinctive location and be of sufficient size to withstand the deteriorating forces of nature and shall be of such material that in the land surveyor's judgment will best achieve this goal.

(b) When delineating a property or boundary line as an integral portion of a survey, the land surveyor must set, or leave as found, an adequate quantity of monuments of a stable and reasonably permanent nature to represent or reference the property or boundary corners. All survey markers shall be shown and described with sufficient evidence of the location of such markers on the land surveyors' drawing, written description or report.

(c) All metes and bounds descriptions prepared as an exhibit to be used in easements shall be tied to corners of record related to the boundary of the affected tract in accordance with subsection (b) of this section.

(d) Where practical, all monuments set by a Professional Land Surveyor to delineate or witness a boundary corner shall be marked in a way that is traceable to the responsible registrant or associated employer.

§138.89.Certification.

(a) If the land surveyor certifies, or otherwise indicates, that his/her product or service meets a standard of practice in addition to that promulgated by the board, then the failure to so meet both standards may be considered by the board, for disciplinary purposes, to be misleading the public.

(b) A land surveyor shall certify only to factual information that the land surveyor has knowledge of or to information within his professional expertise as a land surveyor unless otherwise qualified.

(c) Registered professional land surveyors may certify, using the registrant's signature and official seal, services which are not within the definition of professional land surveying as defined in the Act, provided that such certification does not violate any Texas or federal law.

§138.91.Survey Drawing/Written/Description/Report.

(a) All reports shall delineate the relationship between record monuments and the location of the boundaries surveyed; such relationship shall be shown on the survey drawing, if a drawing is prepared, and/or separate report and recited in the description with the appropriate record references recited thereon and therein.

(b )Every description prepared for the purpose of defining boundaries shall provide a definite and unambiguous identification of the location of such boundaries and shall describe all monuments found or placed.

(c) Courses shall be referenced by notation upon the survey drawing to an identifiable and monumented line or an established geodetic system for directional control.

(d) The survey drawing shall bear the firm name and firm registration number, the land surveyor's name, address, and phone number who is responsible for the land survey, his/her official seal, his/her original signature per Subchapter B of this chapter (Sealing Requirements), and date surveyed.

(e) Boundary monuments found or placed by the land surveyor shall be described upon the survey drawing. The land surveyor shall note upon the survey drawing, which monuments were found, which monuments were placed as a result of his/her survey, and other monuments of record dignity relied upon to establish the corners of the property surveyed.

(f) If any report consists of more than one part, each part shall note the existence of the other part or parts.

(g) If a land surveyor provides a written narrative in lieu of a drawing/sketch to report the results of a survey, the written narrative shall contain sufficient information to demonstrate the survey was conducted in compliance with the Act and rules of the board.

§138.93.Subdivision Plat.

When submitting a subdivision plat to a political subdivision of this state for review and recording, the surveyor shall apply and adhere to the Surveying Act and board rules when establishing or delineating the perimeter boundary of the purposed subdivision. The surveyor shall abide byand conform to the provisions of the state code and any local codes and ordinances as to any other platting requirements.

§138.95.Descriptions Prepared for Political Subdivisions.

A registrant or licensee may prepare, sign, and seal a metes and bounds description from public land title records upon satisfying all of the following minimum conditions:

(1) The description is prepared for a political subdivision of the state (which is defined as a county, city, district, or other body politic of the state having a jurisdiction over only a portion of the state) for the sole purpose of defining or modifying the boundaries of the political subdivision.

(2) The description must be unambiguous and locatable on the ground by ordinary surveying procedures;

(3) Any record monument or physical monumentation called for in the description must be in place at the time the surveyor prepares the description and the surveyor must have personal knowledge of such monument sufficient to give a proper current description for the monument and its accessories;

(4) The surveyor signing the work must have performed an on the ground survey to support any course and distance recited in the description, except that the description may quote courses and distances from recorded documents (such as deeds) as long as the recording reference for any recited document is also quoted in the description; and

(5) Any survey document prepared under this rule shall bear a note as follows: "This document was prepared under 22 Texas Administrative Code §138.95, does not reflect the results of an on the ground survey, and is not to be used to convey or establish interests in real property except those rights and interests implied or established by the creation or reconfiguration of the boundary of the political subdivision for which it was prepared."

§138.97.Easement Depiction.

(a) An easement depiction prepared by any person registered or licensed under the Surveying Act shall adhere to all rules promulgated by the board except where:

(1) the easement area can be clearly ascertained without reference to a metes and bounds description of the easement; and

(2) the easement does not bisect or protrude into the tract (leaving non-easement areas on opposite sides of the easement strip).

(b) An easement's legal description or plat depiction meets the requirements of the exception to this rule when the easement:

(1) is a blanket easement; or

(2) the easement:

(A) is within a tract of land or lot depicted in a recorded subdivision plat;

(B) can be clearly defined and located without a metes and bounds description; and

(C) is adjoining to a platted boundary line.

(c) A "construction estimate", as used in §1071.004 of the Surveying Act, means a depiction of a possible easement route for planning purposes.

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 September 28, 2020.

TRD-202004019

Lance Kinney

Executive Director

Texas Board of Professional Engineers and Land Surveyors

Earliest possible date of adoption: November 8, 2020

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


CHAPTER 139. ENFORCEMENT

SUBCHAPTER C. ENFORCEMENT PROCEEDINGS

22 TAC §139.35, §139.37

The Texas Board of Professional Engineers and Land Surveyors (Board) proposes new rules to 22 Texas Administrative Code, Chapter 139, specifically §139.35 and §139.37, regarding suggested sanction tables for violations of the engineering and surveying practice Acts and rules. These proposed changes are referred to as "proposed rules."

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The rules under 22 Texas Administrative Code Chapter 139 implement Texas Occupations Code, Chapter 1001, the Texas Engineering Practice Act, and Occupations Code, Chapter 1071, the Professional Land Surveying Practices Act.

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

As required by HB 1523, the operations of the two agencies have been merged into one, including compliance and enforcement and professional practice requirements for Registered Professional Land Surveyors (RPLS) and Licensed State Land Surveyors (LSLS). The TBPLS’s rules (22 Texas Administrative Code, Chapter 661), included a table of suggested sanctions for violations of rules of professional responsibility and conduct for land surveyors. This table has been clarified and merged into Chapter 139 per the guidance of the Secretary of State. These rules have been formatted to be similar to the compliance and professionalism rules for engineers (Chapter 139) and edits made for format and clarity.

SECTION-BY-SECTION SUMMARY

The proposed rules amend §139.35 concerning sanctions and penalties for professional engineers. Language has been added to clarify that the sanctions in this section relate to professional engineering and violations of the Professional Engineering Act and board rules.

The proposed rules create a new §139.37 concerning sanctions and penalties for professional land surveyors. This section consolidates and clarifies the TBPLS's previous surveyor sanction table from §661.99 related to violations of the Professional Land Surveying Act and board rules.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

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

Dr. Kinney has determined that for each year of the first five years the proposed rules are in effect, there is no estimated increase or loss in revenue to the state or local government as a result of enforcing or administering the proposed 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 the clarification of sanctions for violations of the Land Surveying Act and board rules and facilitate the efficient and effective practice by professional land surveyors in accordance with HB 1523 and Texas Occupations Code chapters 1001 and 1071.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL

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

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

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

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

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

GOVERNMENT GROWTH IMPACT STATEMENT

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

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

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

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

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

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

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

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

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

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

TAKINGS IMPACT ASSESSMENT

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

ENVIRONMENTAL RULE ANALYSIS

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

PUBLIC COMMENTS

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

STATUTORY AUTHORITY

The 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 and Texas Occupations Code chapter 1071 as necessary for the performance of its duties, the governance of its own proceedings, and the regulation of the practices of engineering and land surveying in this state. They are also proposed pursuant to Texas Occupations Code §§1001.451, 1001.452, 1001.501, 1001.502, 1001.551,1001.5511, 1001.552, 1071.401,1071.404, and 1071.504, which authorize the Board to take disciplinary action, assess administrative and criminal penalties, issue cease and desist orders, and seek injunctive relief for statute and rule violations.

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

§139.35.Sanctions and Penalties - Engineering.

(a) The board, the executive director, an administrative law judge, and the participants in an informal settlement conference may arrive at a greater or lesser sanction than suggested in these rules. The minimum administrative penalty shall be $100 per violation. Pursuant to §1001.502(a) of the Act, the [The] maximum administrative penalty shall be $5,000.00 per violation of Chapter 1001 or a rule adopted or order issued under that chapter. [Pursuant to §1001.502(a) of the Act,] Each [each] day a violation continues or occurs is considered a separate violation for the purpose of assessing an administrative penalty. Allegations and disciplinary actions will be set forth in the final board order and the severity of the disciplinary action will be based on the following factors:

(1) the seriousness of the violation, including the nature, circumstances, extent, and gravity of the prohibited act and the hazard or potential hazard created to the health, safety, or economic welfare of the public;

(2) the history of prior violations of the respondent;

(3) the severity of penalty necessary to deter future violations;

(4) efforts or resistance to efforts to correct the violations;

(5) the economic harm to property or the environment caused by the violation; and

(6) any other matters impacting justice and public welfare, including any economic benefit gained through the violations.

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

§139.37.Sanctions and Penalties - Surveying.

(a) The board, the executive director, an administrative law judge, and the participants in an informal settlement conference may arrive at a greater or lesser sanction than suggested in these rules. The minimum administrative penalty shall be $100 per violation. Pursuant to §1001.502(a) of the Act, the maximum administrative penalty shall be $1,500.00 per violation of Chapter 1071 or a rule adopted or order issued under that chapter. Each day a violation continues or occurs is considered a separate violation for the purpose of assessing an administrative penalty. Allegations and disciplinary actions will be set forth in the final board order and the severity of the disciplinary action will be based on the following factors:

(1) the seriousness of the violation, including the nature, circumstances, extent, and gravity of the prohibited act and the hazard or potential hazard created to the health, safety, or economic welfare of the public;

(2) the history of prior violations of the respondent;

(3) the severity of penalty necessary to deter future violations;

(4) efforts or resistance to efforts to correct the violations;

(5) the economic harm to property or the environment caused by the violation; and

(6) any other matters impacting justice and public welfare, including any economic benefit gained through the violations.

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

Figure: 22 TAC §139.37(b) (.pdf)

(c) The following is a table of suggested sanctions that may be imposed against a person or business entity for specific violations of the Act or board rules. NOTE: In consideration of subsection (a)(1) - (6) of this section, the sanction issued could be less than or greater than the suggested sanctions shown in the following table.

Figure: 22 TAC §139.37(c) (.pdf)

(d) The following is a table of suggested sanctions that may be imposed against a person or business entity for violations of the Act or board rules involving firm registration. NOTE: In consideration of subsection (a)(1) - (6) of this section, the sanction issued could be less than or greater than the suggested sanctions shown in the following table.

Figure: 22 TAC §139.37(d) (.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 September 28, 2020.

TRD-202004015

Lance Kinney

Executive Director

Texas Board of Professional Engineers and Land Surveyors

Earliest possible date of adoption: November 8, 2020

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