(Also see TDLR's Procedural Rules)
JUSTIFICATION FOR ADMINISTRATIVE RULE ADOPTION
Procedural Rules of the Commission and the Department
16 TAC Chapter 60, §60.83
The Texas Commission of Licensing and Regulation (Commission) adopts amendments to an existing rule at 16 Texas Administrative Code, (TAC) Chapter 60, Subchapter F, §60.83 regarding the Procedural Rules of the Commission and the Department, without changes to the proposed text as published in the November 11, 2011, issue of the Texas Register (36 TexReg 7635). The adoption takes effect January 16, 2012.
The adoption implements House Bill (HB) 3287, 82nd Legislature, Regular Session (2011) regarding extending the time period for late renewals. HB 3287 amended Texas Occupations Code Chapter 51, to extend the late renewal provisions in §51.401(c) and (d). Under HB 3287 the time period to late renew the license, without having to apply for a new license and retake the examination, was extended to within 18 months of expiration. HB 3287 also allows a person whose license has expired for at least 18 months, but less than three years, to obtain approval from the Executive Director to renew the license without having to apply for a new license or retake the examination.
The amendment to §60.83 provide that a person whose license has been expired for more than 90 days but less than 18 months, instead of less than one year, may renew the license by paying a late renewal fee equal to two times the renewal fee. The amendment also adds a new provision stating that a person whose license has been expired for more than 18 months but less than three years may request that the Executive Director approve the license by submitting information sufficient to show just cause for the late renewal and paying to the Department a renewal fee equal to two times the normally required renewal fee.
The Department drafted and distributed the proposed rule to persons internal and external to the agency. The proposed rule was published in the Texas Register on November 11, 2011. The 30-day public comment period closed on December 12, 2011. The Department received public comment from twelve interested parties: Franklin-Padilla Electric LLC and eleven individuals. The public comments are summarized below, followed by the Department’s responses.
Four of the comments support the rule as published and therefore the Department makes no change in response to those comments.
One comment supports the rule but suggest that it be modified to allow late renewal beyond the extended period without retesting. This comment is beyond the authority contained in HB 3287 and the Department declines to modify the rule in response to this comment.
One comment suggests that the rule be restricted to armed forces personnel only. Another comment suggests the rule be applied to only persons with health-related causes for extended late renewal. HB 3287 does not contain these limitations. Therefore, the rule has not been modified in response to these comments.
One comment suggests that licensees will game the process by allowing the license to expire for up to three years and save the renewal fees. Another comment suggests that persons seeking extended late renewal be required to pay all past renewal fees plus a one year penalty. The Department notes that should a person attempt to game the process in this manner, that person has a period of unlicensed activity and is subject to administrative penalties. Since the three year late renewal period is statutory, the rule has not been modified in response to the comments.
One comment suggests that during periods of unemployment a licensee generally allow licenses to lapse. The Department agrees with this comment and the statute and rules address this situation. Since this comment tends to support the proposed rule no change is necessary.
The amendments are adopted under Texas Occupations Code, Chapter 51, which authorize the Commission, the Department’s governing body, to adopt rules as necessary to implement this chapter and any other law establishing a program regulated by the Department.
The statutory provisions affected by the adoption are those set forth in Texas Occupations Code, Chapter 51, the Commission’s and Department’s enabling statute. In addition, the following statutes establishing specific programs regulated by the Department are affected: Texas Agriculture Code, Chapters 301 and 302 (Weather Modification and Control); Texas Business and Commerce Code, Chapter 92 (Rental Purchase Agreements-Loss Damage Waivers); Texas Government Code, Chapters 57 (Licensed Court Interpreters) and 469 (Architectural Barriers); Texas Health and Safety Code, Chapters 754 (Elevators and Escalators) and 755 (Boilers); Texas Labor Code, Chapters 91 (Staff Leasing Services) and 92 (Temporary Common Worker Employers); and Texas Occupations Code, Chapters 802 (Dog or Cat Breeders), 953 (For Profit Legal Service Contract Companies), 1151 (Property Tax Professionals), 1152 (Property Tax Consultants), 1202 (Industrialized Housing and Buildings), 1302 (Air Conditioning and Refrigeration Contractors and Technicians), 1304 (Service Contract Providers and Administrators), 1305 (Electricians), 1306 (Identity Recovery Service Contract Providers and Administrators), 1601 (Barbers), 1602 (Cosmetology), 1603 (Barbers and Cosmetology), 1703 (Polygraph Examiners), 1802 (Auctioneers), 1901 (Water Well Drillers), 1902 (Water Well Pump Installers), 2052 (Combative Sports), 2303 (Vehicle Storage Facilities), 2306 (Vehicle Protection Product Warrantors), 2308 (Vehicle Towing and Booting), and 2309 (Used Automotive Parts Recyclers). No other statutes, articles, or codes are affected by the adoption.
Subchapter F. Fees.
§60.83. Late Renewal Fees.
(a) A person whose license has been expired for 90 days or less may renew the license by paying a late renewal fee equal to 1 and 1/2 times the renewal fee.
(b) A person whose license has been expired for more than 90 days but less than 18 months may renew the license by paying a late renewal fee equal to two times the renewal fee.
(c) A person whose license has been expired for more than 18 months but less than three years may request that the executive director approve the license by submitting information sufficient to show just cause for the late renewal and paying to the department a renewal fee equal to two times the normally required renewal fee.
(d) A person paying a late renewal fee is not required to pay the renewal fee in addition to the late renewal fee.
(e) Pursuant to Texas Occupations Code, <*>55.002, an individual who fails to renew a license in a timely manner is exempt from the requirement to pay a late renewal fee and is not subject to any other penalty as a result of failing to renew the license in a timely manner if the individual furnishes to the Department satisfactory documentation that the individual failed to renew the license in a timely manner because the individual was on active duty in the United States armed forces serving outside this state. An individual to whom this subsection applies may renew the license by paying the renewal fee.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency’s legal authority.
Filed with the Office of the Secretary of State, on December 27, 2011.
William H. Kuntz, Jr.
Texas Department of Licensing and Regulation