Texas Health and Safety Code

As effective September 1, 2019

Subtitle G

Chapter 141

Sec. 141.001: Short Title

This chapter may be cited as the Texas Youth Camp Safety and Health Act.

Comments

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 141.002: Definitions

In this chapter:

(1) "Camper" means a minor who is attending a youth camp on a day care or boarding basis.

(2) "Day camp" includes any camp that primarily operates during any portion of the day between 7 a.m. and 10 p.m. for a period of four or more consecutive days but may incidentally offer not more than two overnight stays each camp session. The term does not include a facility required to be licensed with the Department of Family and Protective Services.

(3) "Person" means an individual, partnership, corporation, association, or organization.

(4) "Resident youth camp" includes any camp that for a period of four or more days continuously provides residential services, including overnight accommodations for the duration of the camp session.

(5) "Youth camp" means a facility or property, other than a facility required to be licensed by the Department of Family and Protective Services, that:

(A) has the general characteristics of a day camp, resident camp, or travel camp;

(B) is used primarily or partially for recreational, athletic, religious, or educational activities; and

(C) accommodates at least five minors who attend or temporarily reside at the camp for all or part of at least four days.

(6) "Youth camp operator" means a person who owns, operates, controls, or supervises a youth camp, regardless of profit.

Comments

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., ch. 251, Sec. 1, eff. Sept. 1, 1991; Acts 1995, 74th Leg., ch. 76, Sec. 8.076, eff. Sept. 1, 1995; Acts 2001, 77th Leg., ch. 1373, Sec. 1, eff. Sept. 1, 2001.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0378, eff. April 2, 2015.

Sec. 141.0021: Exemption

This chapter does not apply to a facility or program operated by or on the campus of an institution of higher education or a private or independent institution of higher education as those terms are defined by Section 61.003, Education Code, that is regularly inspected by one or more local governmental entities for compliance with health and safety standards.

Comments

Added by Acts 2003, 78th Leg., ch. 1302, Sec. 1, eff. June 20, 2003.

Sec. 141.0025: Waiver; Appeal

(a) The department may grant a waiver from the requirements of this chapter to a program that:

(1) is sponsored by a religious organization as defined by Section 464.051;

(2) has been in operation for at least 30 consecutive years;

(3) operates one camp for not more than seven days in any year;

(4) has not more than 80 campers;

(5) is conducted by adult participants who are all volunteers;

(6) operates in a county with a population of at least 4,400 but not more than 4,750; and

(7) ensures that background checks are conducted on and the training required under Section 141.0095 is completed by each adult participating in the program.

(b) A waiver granted by the department under Subsection (a) is valid until the waiver is revoked for cause by the department.

(c) A person who operates a program for which an application for a waiver under this section has been denied or for which a waiver under this section has been revoked may appeal the action in the manner provided for appeal of contested cases under Chapter 2001, Government Code.

Comments

Added by Acts 2017, 85th Leg., R.S., Ch. 1146 (H.B. 492), Sec. 1, eff. September 1, 2017.

Sec. 141.003: License Required

A person may not own, operate, control, or supervise a youth camp unless the person:

(1) holds a license issued under this chapter for that camp; and

(2) complies with this chapter and department rules and orders.

Comments

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 141.0035: License Fees

(a) The executive commissioner by rule shall establish the amount of the fee for obtaining or renewing a license under this chapter. The executive commissioner shall set the fee in a reasonable amount designed to recover the direct and indirect costs to the department of administering and enforcing this chapter. The executive commissioner may set fees in a different amount for resident youth camps and day youth camps to reflect differences in the costs of administering and enforcing this chapter for resident and day camps.

(b) Before the executive commissioner adopts or amends a rule under Subsection (a), the department shall solicit comments and information from the operators of affected youth camps and allow affected youth camp operators the opportunity to meet with appropriate department staff who are involved with the rulemaking process.

Comments

Added by Acts 2003, 78th Leg., ch. 1110, Sec. 1, eff. Sept. 1, 2003.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0379, eff. April 2, 2015.

Sec. 141.004: License Application and Issuance

(a) To obtain a license, a person must submit a license application accompanied by a license fee in an amount set by the executive commissioner by rule.

(b) On receiving a license application, the department shall inspect the applicant's facilities, operations, and premises and shall issue a license to each applicant who will operate a youth camp in accordance with this chapter and rules adopted under this chapter.

(c) The department shall issue serially numbered licenses.

Comments

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., ch. 251, Sec. 2, eff. Sept. 1, 1991; Acts 2003, 78th Leg., ch. 1110, Sec. 2, eff. Sept. 1, 2003.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0380, eff. April 2, 2015.

Sec. 141.005: License Renewal

(a) A person holding a license issued under this chapter must renew the license annually by submitting a renewal application on a date determined by department rule on a form provided by the department.

(b) The application must be accompanied by a renewal fee in an amount set by the executive commissioner by rule.

(c) The department may not renew the license of a youth camp which has not corrected deficiencies before the application for renewal is submitted. The executive commissioner shall adopt substantive and procedural rules for the submission by a youth camp operator of evidence that a deficiency or deficiencies have been corrected.

Comments

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., ch. 251, Sec. 3, eff. Sept. 1, 1991; Acts 2001, 77th Leg., ch. 1373, Sec. 2, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 1110, Sec. 3, eff. Sept. 1, 2003.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0381, eff. April 2, 2015.

Sec. 141.0051: License; Consideration of Certain Convictions

In making a determination on issuance, renewal, or revocation of a youth camp operator's license, the department shall consider whether the youth camp employs an individual who was convicted of an act of sexual abuse, as defined by Section 21.02, Penal Code, that occurred at the camp.

Comments

Added by Acts 2019, 86th Leg., R.S., Ch. 1325 (H.B. 4372), Sec. 1, eff. September 1, 2019.

Sec. 141.006: Principal Authority for Youth Camps

The department is the principal authority on matters relating to health and safety conditions at youth camps. In addition to the powers and duties established by this chapter, the department has any other powers necessary and convenient to carry out its responsibilities under this chapter.

Comments

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 141.007: Inspections

(a) An employee or agent of the department may enter any property for which a license is issued under this chapter, property for which a license application to operate a youth camp is pending, or property on which a youth camp is in operation to investigate and inspect conditions relating to the health and safety of the campers.

(b) An employee or agent who enters a youth camp to investigate and inspect conditions shall notify the person in charge of the camp of the inspector's presence and shall present proper credentials. The department may exercise the remedies authorized by Section 141.015(b) if the employee or agent is not allowed to enter.

(c) The executive commissioner may prescribe reasonable record-keeping requirements for licensed youth camps, including a requirement that the youth camp keep records relating to matters involving the health and safety of campers. An employee or agent of the department may examine, during regular business hours, any records relating to the health and safety of campers.

(d) An employee or agent of the department who enters a youth camp to investigate and inspect conditions shall:

(1) notify the person in charge of the camp or the person's designee of any violations as they are discovered; and

(2) allow the camp to correct the violations while the investigation and inspection is occurring.

(e) The department may not extend or delay an investigation or inspection to allow the youth camp to correct a violation under Subsection (d)(2).

(f) An employee or agent of the department performing an investigation and inspection under this section may not report a violation that is significant under the department's rules if the violation is corrected during the investigation and inspection.

(g) A penalty may not be imposed on a youth camp for a violation that is significant under the department's rules if the violation is corrected during an investigation and inspection under this section.

Comments

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 2003, 78th Leg., ch. 636, Sec. 1, eff. Sept. 1, 2003.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0382, eff. April 2, 2015.

Sec. 141.008: Adoption of Rules; Exemption from Application of Certain Rules

(a) The executive commissioner may adopt rules to implement this chapter. In adopting the rules the executive commissioner shall comply with Subchapter B, Chapter 2001, Government Code, including Sections 2001.032(b) and 2001.033, Government Code. In developing the rules to be adopted by the executive commissioner, the department shall consult parents, youth camp operators, and appropriate public and private officials and organizations.

(b) A youth camp operator may grant an exemption from compliance with a rule that requires physical examinations or inoculations for children or staff if the exemption is requested on the grounds of religious convictions.

Comments

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 2003, 78th Leg., ch. 636, Sec. 2, eff. Sept. 1, 2003.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0383, eff. April 2, 2015.

Sec. 141.0085: Reports of Abuse; Duties of Youth Camp Operator

(a) The executive commissioner by rule shall establish a procedure for the department to forward a report of alleged abuse of a camper that is received by the department to the Department of Family and Protective Services or another appropriate agency.

(b) If a law enforcement agency notifies a youth camp operator of the investigation or conviction of an individual who is employed by the camp for an act of sexual abuse, as defined by Section 21.02, Penal Code, that occurred at the camp, the operator shall:

(1) immediately notify the department of the investigation or conviction; and

(2) retain all records related to the investigation or conviction until the department notifies the camp that the record retention is no longer required.

Comments

Added by Acts 2019, 86th Leg., R.S., Ch. 1325 (H.B. 4372), Sec. 1, eff. September 1, 2019.

Sec. 141.009: Standards

The executive commissioner by rule shall establish health and safety standards for youth camps. The standards may relate to:

(1) adequate and proper supervision at all times of camp activities;

(2) qualifications for directors, supervisors, and staff and sufficient numbers of those persons;

(3) proper safeguards for sanitation and public health;

(4) adequate medical services for personal health and first aid;

(5) proper procedures for food preparation, handling, and mass feeding;

(6) healthful and sufficient water supply;

(7) proper waste disposal;

(8) proper water safety procedures for swimming pools, lakes, and waterways;

(9) safe boating equipment;

(10) proper maintenance and safe use of motor vehicles;

(11) safe buildings and physical facilities;

(12) proper fire precautions;

(13) safe and proper recreational and other equipment;

(14) proper regard for density and use of the premises; and

(15) records of criminal convictions of camp personnel.

Comments

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 2001, 77th Leg., ch. 1373, Sec. 3, eff. Sept. 1, 2001.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0384, eff. April 2, 2015.

Sec. 141.0095: Training and Examination Program

(a) A person holding a license issued under this chapter may not employ or accept the volunteer service of an individual for a position involving contact with campers at a youth camp unless:

(1) the individual submits to the person or the youth camp has on file documentation that verifies the individual within the preceding two years successfully completed the training and examination program required by this section; or

(2) the individual successfully completes the youth camp's training and examination program, which must be approved by the department as required by this section, during the individual's first workweek and the youth camp issues and files documentation verifying that fact.

(b) A person holding a license issued under this chapter must retain in the person's records a copy of the documentation required or issued under Subsection (a) for each employee or volunteer until the second anniversary of the examination date.

(c) A person applying for or holding an employee or volunteer position involving contact with campers at a youth camp must successfully complete the training and examination program on sexual abuse and child molestation required by this section during the applicable period described by Subsection (a).

(d) In accordance with this section, the executive commissioner by rule shall establish criteria and guidelines for training and examination programs on sexual abuse and child molestation. The department may approve training and examination programs offered by trainers under contract with youth camps or by online training organizations or may approve programs offered in another format authorized by the department.

(e) A training and examination program on sexual abuse and child molestation approved by the department must include training and an examination on:

(1) the definitions and effects of sexual abuse and child molestation;

(2) the typical patterns of behavior and methods of operation of child molesters and sex offenders that put children at risk;

(3) the warning signs and symptoms associated with sexual abuse or child molestation, recognition of the signs and symptoms, and the recommended methods of reporting suspected abuse; and

(4) the recommended rules and procedures for youth camps to implement to address, reduce, prevent, and report suspected sexual abuse or child molestation.

(f) The department may assess a fee in the amount set by the executive commissioner by rule as necessary to cover the costs of administering this section to each person that applies for the department's approval of a training and examination program on sexual abuse and child molestation under this section.

(g) The department at least every five years shall review each training and examination program on sexual abuse and child molestation approved by the department to ensure the program continues to meet the criteria and guidelines established by rule under this section.

Comments

Added by Acts 2005, 79th Leg., Ch. 860 (S.B. 990), Sec. 1, eff. September 1, 2005.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0385, eff. April 2, 2015.

Acts 2015, 84th Leg., R.S., Ch. 946 (S.B. 277), Sec. 1.10(b), eff. September 1, 2015.

Sec. 141.010: Advisory Committee

(a) The executive commissioner shall appoint a committee to advise the executive commissioner in the development of standards and procedures, make recommendations to the executive commissioner regarding the content of the rules adopted to implement this chapter, and perform any other functions requested by the executive commissioner in the implementation and administration of the chapter.

(b) The advisory committee may not exceed nine members, at least two of whom shall be members of the general public. The other members should be experienced camping professionals who represent the camping communities of the state. In making the appointments, the executive commissioner shall attempt to reflect the geographic diversity of the state in proportion to the number of camps licensed by the department in each geographic area of the state.

(c) Advisory committee members serve for staggered six-year terms, with the terms of three members expiring on August 31 of each odd-numbered year.

(d) A vacancy on the advisory committee is filled by the executive commissioner in the same manner as other appointments to the advisory committee.

(e) The advisory committee will meet annually and at the call of the commissioner.

(f) The advisory committee may elect a chairperson, vice-chairperson, and secretary from among its members and may adopt rules for the conduct of its own activities.

Comments

Added by Acts 1991, 72nd Leg., ch. 251, Sec. 4, eff. Sept. 1, 1991. Amended by Acts 2003, 78th Leg., ch. 636, Sec. 3, eff. Sept. 1, 2003.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0387, eff. April 2, 2015.

Sec. 141.011: Operator's Duty

A youth camp operator shall provide each camper with safe and healthful conditions, facilities, and equipment that are free from recognized hazards that cause or may tend to cause death, serious illness, or bodily harm.

Comments

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Renumbered from Sec. 141.010 by Acts 1991, 72nd Leg., ch. 251, Sec. 4, eff. Sept. 1, 1991.

Sec. 141.0111: Required Information About Abuse Reporting

A youth camp operator shall develop and maintain a written policy regarding the method for reporting to the department suspected abuse occurring at the camp. The operator on request of any person shall provide a copy of the policy to the person.

Comments

Added by Acts 2019, 86th Leg., R.S., Ch. 1325 (H.B. 4372), Sec. 2, eff. September 1, 2019.

Sec. 141.0112: Required Notice About Youth Camp Complaints and Disciplinary Actions

(a) The department shall post on the department's Internet website each youth camp compliance order issued by the department until at least the third anniversary of the date the compliance order was finally adjudicated.

(b) A youth camp operator shall include on the camp's publicly accessible Internet website a clearly marked link to the youth camp program web page on the department's Internet website.

Comments

Added by Acts 2019, 86th Leg., R.S., Ch. 1325 (H.B. 4372), Sec. 2, eff. September 1, 2019.

Sec. 141.012: License Revocation

(a) If the department finds that a violation of this chapter or a rule adopted under this chapter has occurred or is occurring at a youth camp for which a license has been issued, the department shall give written notice to the licensee setting forth the nature of the violation and demanding that the violation cease.

(b) The department may initiate proceedings to revoke the license if the licensee refuses or fails to comply with the notice in the time and manner directed in the notice.

Comments

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Renumbered from Sec. 141.011 by Acts 1991, 72nd Leg., ch. 251, Sec. 4, eff. Sept. 1, 1991.

Sec. 141.013: Hearings

(a) The department may:

(1) call and conduct hearings;

(2) administer oaths;

(3) receive evidence;

(4) issue subpoenas for witnesses, papers, and documents related to the hearing; and

(5) make findings of fact and decisions concerning the administration of this chapter and rules adopted under this chapter.

(b) Repealed by Acts 2015, 84th Leg., R.S., Ch. 1, Sec. 3.1639(47), eff. April 2, 2015.

(c) Reasonable notice of the hearing shall be given to all involved parties.

Comments

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Renumbered from Sec. 141.012 by Acts 1991, 72nd Leg., ch. 251, Sec. 4, eff. Sept. 1, 1991.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0388, eff. April 2, 2015.

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0389, eff. April 2, 2015.

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.1639(47), eff. April 2, 2015.

Sec. 141.014: Judicial Review

A person affected by a ruling, order, or other act of the department may appeal the action.

Comments

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Renumbered from Sec. 141.013 by Acts 1991, 72nd Leg., ch. 251, Sec. 4, eff. Sept. 1, 1991.

Sec. 141.015: Civil Penalty; Injunction

(a) A person who violates this chapter or a rule or order adopted under this chapter is subject to a civil penalty of not less than $50 or more than $1,000 for each act of violation.

(b) If it appears that a person has violated, is violating, or is threatening to violate this chapter or a rule or order adopted under this chapter, the department may bring a civil action in a district court for:

(1) injunctive relief to restrain the person from continuing the violation or threat of violation;

(2) the assessment of a civil penalty; or

(3) both injunctive relief and a civil penalty.

(c) The district court, on a finding that the person is violating this chapter or a rule or order adopted under this chapter, shall grant the injunctive relief, assess a civil penalty, or both, as warranted by the facts.

(d) The department may petition a district court for a temporary restraining order to immediately halt a violation or other action creating an emergency condition if it appears that a person:

(1) is violating or threatening to violate this chapter or a rule or order adopted under this chapter; or

(2) is taking any other action that creates an emergency condition that constitutes an imminent danger to the health, safety, or welfare of campers at a youth camp.

(e) An action for injunctive relief, recovery of a civil penalty, or both, may be brought in the county in which the defendant resides or in which the violation or threat of violation occurs.

(f) In an action for injunctive relief under this section, the court may grant any prohibitory or mandatory injunction warranted by the facts, including temporary restraining orders, temporary injunctions, and permanent injunctions. The court shall grant injunctive relief without a bond or other undertaking by the department.

(g) An appellate court shall give precedence to an action brought under this section over other cases of a different nature on the docket of the court.

(h) A civil penalty recovered in an action brought by the department under this chapter shall be deposited to the credit of the youth camp health and safety fund.

Comments

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Renumbered from Sec. 141.014 by Acts 1991, 72nd Leg., ch. 251, Sec. 4, eff. Sept. 1, 1991.

Sec. 141.016: Administrative Penalty

(a) The department may assess an administrative penalty if a person violates this chapter or a rule or order adopted or license issued under this chapter.

(b) In determining the amount of the penalty, the department shall consider:

(1) the person's previous violations;

(2) the seriousness of the violation;

(3) any hazard to the health and safety of the public;

(4) the person's demonstrated good faith; and

(5) such other matters as justice may require.

(c) The penalty may not exceed $1,000 a day for each violation.

(d) Each day a violation continues may be considered a separate violation.

Comments

Added by Acts 1991, 72nd Leg., ch. 251, Sec. 5, eff. Sept. 1, 1991. Amended by Acts 2001, 77th Leg., ch. 1373, Sec. 4, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 636, Sec. 4, eff. Sept. 1, 2003.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0390, eff. April 2, 2015.

Sec. 141.017: Administrative Penalty Assessment Procedure

(a) An administrative penalty may be assessed only after a person charged with a violation is given an opportunity for a hearing.

(b) If a hearing is held, the administrative law judge shall make findings of fact and shall issue a written proposal for decision regarding the occurrence of the violation and the amount of the penalty that may be warranted.

(c) If the person charged with the violation does not request a hearing, the department may assess a penalty after determining that a violation has occurred and the amount of the penalty that may be warranted.

(d) After making a determination under this section that a penalty is to be assessed against a person, the department shall issue an order requiring that the person pay the penalty.

(e) Repealed by Acts 2015, 84th Leg., R.S., Ch. 1, Sec. 3.1639(47), eff. April 2, 2015.

Comments

Added by Acts 1991, 72nd Leg., ch. 251, Sec. 5, eff. Sept. 1, 1991.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0391, eff. April 2, 2015.

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.1639(47), eff. April 2, 2015.

Sec. 141.018: Payment of Administrative Penalty

(a) Not later than the 30th day after the date an order finding that a violation has occurred is issued, the department shall inform the person against whom the order is issued of the amount of the penalty for the violation.

(b) Not later than the 30th day after the date on which a decision or order charging a person with a penalty is final, the person shall:

(1) pay the penalty in full; or

(2) file a petition for judicial review of the department's order contesting the amount of the penalty, the fact of the violation, or both.

(b-1) Within the period prescribed by Subsection (b), a person who files a petition for judicial review may:

(1) stay enforcement of the penalty by:

(A) paying the penalty to the court for placement in an escrow account; or

(B) posting with the court a supersedeas bond for the amount of the penalty; or

(2) request that the department stay enforcement of the penalty by:

(A) filing with the court a sworn affidavit of the person stating that the person is financially unable to pay the penalty and is financially unable to give the supersedeas bond; and

(B) sending a copy of the affidavit to the department.

(b-2) If the department receives a copy of an affidavit under Subsection (b-1)(2), the department may file with the court, within five days after the date the copy is received, a contest to the affidavit. The court shall hold a hearing on the facts alleged in the affidavit as soon as practicable and shall stay the enforcement of the penalty on finding that the alleged facts are true. The person who files an affidavit has the burden of proving that the person is financially unable to pay the penalty or to give a supersedeas bond.

(c) A bond posted under this section must be in a form approved by the court and be effective until all judicial review of the order or decision is final.

(d) A person who does not send money to, post the bond with, or file the affidavit with the court within the period prescribed by Subsection (b) waives all rights to contest the violation or the amount of the penalty.

Comments

Added by Acts 1991, 72nd Leg., ch. 251, Sec. 5, eff. Sept. 1, 1991.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0392, eff. April 2, 2015.

Sec. 141.019: Refund of Administrative Penalty

On the date the court's judgment that an administrative penalty against a person should be reduced or not assessed becomes final, the court shall order that:

(1) the appropriate amount of any penalty payment plus accrued interest be remitted to the person not later than the 30th day after that date; or

(2) the bond be released, if the person has posted a bond.

Comments

Added by Acts 1991, 72nd Leg., ch. 251, Sec. 5, eff. Sept. 1, 1991.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0393, eff. April 2, 2015.

Sec. 141.020: Recovery of Administrative Penalty By Attorney General

The attorney general at the request of the department may bring a civil action to recover an administrative penalty under this chapter.

Comments

Added by Acts 1991, 72nd Leg., ch. 251, Sec. 5, eff. Sept. 1, 1991.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0394, eff. April 2, 2015.

Chapter 142

Subchapter A

Sec. 142.001: Definitions

In this chapter:

(1) "Administrative support site" means a facility or site where a home and community support services agency performs administrative and other support functions but does not provide direct home health, hospice, or personal assistance services.

(2) "Alternate delivery site" means a facility or site, including a residential unit or an inpatient unit:

(A) that is owned or operated by a hospice;

(B) that is not the hospice's principal place of business;

(C) that is located in the geographical area served by the hospice; and

(D) from which the hospice provides hospice services.

(3) "Bereavement" means the process by which a survivor of a deceased person mourns and experiences grief.

(4) "Bereavement services" means support services offered to a family during bereavement.

(5) "Branch office" means a facility or site in the geographical area served by a home and community support agency where home health or personal assistance services are delivered or active client records are maintained.

(6) "Certified agency" means a home and community support services agency, or a portion of the agency, that:

(A) provides a home health service; and

(B) is certified by an official of the United States Department of Health and Human Services as in compliance with conditions of participation in Title XVIII, Social Security Act (42 U.S.C. Section 1395 et seq.).

(7) "Certified home health services" means home health services that are provided by a certified agency.

(8) "Chief financial officer" means an individual who is responsible for supervising and managing all financial activities for a home and community support services agency.

(9) "Controlling person" means a person who controls a home and community support services agency or other person as described by Section 142.0012.

(10) Repealed by Acts 2015, 84th Leg., R.S., Ch. 1, Sec. 3.1639(48), eff. April 2, 2015.

(11) "Counselor" means an individual qualified under Medicare standards to provide counseling services, including bereavement, dietary, spiritual, and other counseling services, to both the client and the family.

(11-a) "Department" means the Department of Aging and Disability Services.

(11-b) Repealed by Acts 2015, 84th Leg., R.S., Ch. 1, Sec. 3.1639(48), eff. April 2, 2015.

(11-c) "Habilitation" means habilitation services, as defined by Section 534.001, Government Code, delivered by a licensed home and community support services agency.

(12) "Home and community support services agency" means a person who provides home health, hospice, habilitation, or personal assistance services for pay or other consideration in a client's residence, an independent living environment, or another appropriate location.

(12-a) "Home and community support services agency administrator" or "administrator" means the person who is responsible for implementing and supervising the administrative policies and operations of the home and community support services agency and for administratively supervising the provision of all services to agency clients on a day-to-day basis.

(13) "Home health service" means the provision of one or more of the following health services required by an individual in a residence or independent living environment:

(A) nursing, including blood pressure monitoring and diabetes treatment;

(B) physical, occupational, speech, or respiratory therapy;

(C) medical social service;

(D) intravenous therapy;

(E) dialysis;

(F) service provided by unlicensed personnel under the delegation or supervision of a licensed health professional;

(G) the furnishing of medical equipment and supplies, excluding drugs and medicines; or

(H) nutritional counseling.

(14) "Hospice" means a person licensed under this chapter to provide hospice services, including a person who owns or operates a residential unit or an inpatient unit.

(15) "Hospice services" means services, including services provided by unlicensed personnel under the delegation of a registered nurse or physical therapist, provided to a client or a client's family as part of a coordinated program consistent with the standards and rules adopted under this chapter. These services include support services for terminally ill patients and their families that:

(A) are available 24 hours a day, seven days a week, during the last stages of illness, during death, and during bereavement;

(B) are provided by a medically directed interdisciplinary team; and

(C) may be provided in a home, nursing home, residential unit, or inpatient unit according to need. These services do not include inpatient care normally provided in a licensed hospital to a terminally ill person who has not elected to be a hospice client.

(16) "Inpatient unit" means a facility that provides a continuum of medical or nursing care and other hospice services to clients admitted into the unit and that is in compliance with:

(A) the conditions of participation for inpatient units adopted under Title XVIII, Social Security Act (42 U.S.C. Section 1395 et seq.); and

(B) standards adopted under this chapter.

(17) "Independent living environment" means:

(A) a client's individual residence, which may include a group home or foster home; or

(B) other settings where a client participates in activities, including school, work, or church.

(18) "Interdisciplinary team" means a group of individuals who work together in a coordinated manner to provide hospice services and must include a physician, registered nurse, social worker, and counselor.

(19) "Investigation" means an inspection or survey conducted by a representative of the department to determine if a licensee is in compliance with this chapter.

(20) Repealed by Acts 2019, 86th Leg., R.S., Ch. 609 (S.B. 916), Sec. 3, eff. June 10, 2019.

(21) "Person" means an individual, corporation, or association.

(22) "Personal assistance service" means routine ongoing care or services required by an individual in a residence or independent living environment that enable the individual to engage in the activities of daily living or to perform the physical functions required for independent living, including respite services. The term includes:

(A) personal care;

(B) health-related services performed under circumstances that are defined as not constituting the practice of professional nursing by the Texas Board of Nursing under the terms of a memorandum of understanding executed by the board and the department; and

(C) health-related tasks provided by unlicensed personnel under the delegation of a registered nurse or that a registered nurse determines do not require delegation.

(22-a) "Personal care" means the provision of one or more of the following services required by an individual in a residence or independent living environment:

(A) bathing;

(B) dressing;

(C) grooming;

(D) feeding;

(E) exercising;

(F) toileting;

(G) positioning;

(H) assisting with self-administered medications;

(I) routine hair and skin care; and

(J) transfer or ambulation.

(23) "Place of business" means an office of a home and community support services agency that maintains client records or directs home health, hospice, habilitation, or personal assistance services. The term does not include an administrative support site.

(24) "Residence" means a place where a person resides and includes a home, a nursing home, a convalescent home, or a residential unit.

(25) "Residential unit" means a facility that provides living quarters and hospice services to clients admitted into the unit and that is in compliance with standards adopted under this chapter.

(26) "Respite services" means support options that are provided temporarily for the purpose of relief for a primary caregiver in providing care to individuals of all ages with disabilities or at risk of abuse or neglect.

(27) "Social worker" means an individual licensed as a social worker under Chapter 505, Occupations Code.

(28) "Support services" means social, spiritual, and emotional care provided to a client and a client's family by a hospice.

(29) "Terminal illness" means an illness for which there is a limited prognosis if the illness runs its usual course.

(30) "Volunteer" means an individual who provides assistance to a home and community support services agency without compensation other than reimbursement for actual expenses.

Comments

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., ch. 14, Sec. 42, 43, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 800, Sec. 3, eff. Sept. 1, 1993; Acts 1997, 75th Leg., ch. 1191, Sec. 1, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 276, Sec. 1, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 702, Sec. 1, eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 198, Sec. 2.193, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 892, Sec. 25, eff. Sept. 1, 2003.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 889 (H.B. 2426), Sec. 63, eff. September 1, 2007.

Acts 2011, 82nd Leg., R.S., Ch. 879 (S.B. 223), Sec. 1.01, eff. September 1, 2011.

Acts 2011, 82nd Leg., R.S., Ch. 980 (H.B. 1720), Sec. 9, eff. September 1, 2011.

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0395, eff. April 2, 2015.

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.1639(48), eff. April 2, 2015.

Acts 2015, 84th Leg., R.S., Ch. 826 (H.B. 4001), Sec. 1, eff. September 1, 2015.

Acts 2019, 86th Leg., R.S., Ch. 609 (S.B. 916), Sec. 2, eff. June 10, 2019.

Acts 2019, 86th Leg., R.S., Ch. 609 (S.B. 916), Sec. 3, eff. June 10, 2019.

Sec. 142.0011: Scope, Purpose, and Implementation

(a) The purpose of this chapter is to ensure that home and community support services agencies in this state deliver the highest possible quality of care. This chapter and the rules adopted under this chapter establish minimum standards for acceptable quality of care, and a violation of a minimum standard established or adopted under this chapter is a violation of law. For purposes of this chapter, components of quality of care include:

(1) client independence and self-determination;

(2) humane treatment;

(3) continuity of care;

(4) coordination of services;

(5) professionalism of service providers;

(6) quality of life;

(7) client satisfaction with services; and

(8) person-centered service delivery.

(b) The executive commissioner shall protect clients of home and community support services agencies by adopting rules relating to quality of care and quality of life.

(c) The department shall protect clients of home and community support services agencies by:

(1) regulating those agencies;

(2) strictly monitoring factors relating to the health, safety, welfare, and dignity of each client;

(3) imposing prompt and effective remedies for violations of this chapter and rules and standards adopted under this chapter;

(4) enabling agencies to provide person-centered services that allow clients to maintain the highest possible degree of independence and self-determination; and

(5) providing the public with helpful and understandable information relating to agencies in this state.

Comments

Added by Acts 1999, 76th Leg., ch. 276, Sec. 2, eff. Sept. 1, 1999.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0396, eff. April 2, 2015.

Acts 2015, 84th Leg., R.S., Ch. 826 (H.B. 4001), Sec. 2, eff. September 1, 2015.

Sec. 142.0012: Controlling Person

(a) A person is a controlling person if the person, acting alone or with others, has the ability to directly or indirectly influence, direct, or cause the direction of the management, expenditure of money, or policies of a home and community support services agency or other person.

(b) For purposes of this chapter, "controlling person" includes:

(1) a management company or other business entity that operates or contracts with others for the operation of a home and community support services agency;

(2) a person who is a controlling person of a management company or other business entity that operates a home and community support services agency or that contracts with another person for the operation of a home and community support services agency; and

(3) any other individual who, because of a personal, familial, or other relationship with the owner, manager, or provider of a home and community support services agency, is in a position of actual control or authority with respect to the agency, without regard to whether the individual is formally named as an owner, manager, director, officer, provider, consultant, contractor, or employee of the agency.

(c) A controlling person described by Subsection (b)(3) does not include an employee, lender, secured creditor, or other person who does not exercise formal or actual influence or control over the operation of a home and community support services agency.

(d) The executive commissioner may adopt rules that specify the ownership interests and other relationships that qualify a person as a controlling person.

Comments

Added by Acts 1999, 76th Leg., ch. 276, Sec. 2, eff. Sept. 1, 1999.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0397, eff. April 2, 2015.

Sec. 142.002: License Required

(a) Except as provided by Section 142.003, a person, including a health care facility licensed under this code, may not engage in the business of providing home health, hospice, habilitation, or personal assistance services, or represent to the public that the person is a provider of home health, hospice, habilitation, or personal assistance services for pay without a home and community support services agency license authorizing the person to perform those services issued by the department for each place of business from which home health, hospice, habilitation, or personal assistance services are directed. A certified agency must have a license to provide certified home health services.

(b) A person who is not licensed to provide home health services under this chapter may not indicate or imply that the person is licensed to provide home health services by the use of the words "home health services" or in any other manner.

(c) A person who is not licensed to provide hospice services under this chapter may not use the word "hospice" in a title or description of a facility, organization, program, service provider, or services or use any other words, letters, abbreviations, or insignia indicating or implying that the person holds a license to provide hospice services under this chapter.

(d) A license to provide hospice services issued under this chapter authorizes a hospice to own or operate a residential unit or inpatient unit at the licensed site in compliance with the standards and rules adopted under this chapter.

(e) A license issued under this chapter may not be transferred to another person, but may be transferred from one location to another location. A change of ownership or location shall be reported to the department.

(f) A person who is not licensed to provide personal assistance services under this chapter may not indicate or imply that the person is licensed to provide personal assistance services by the use of the words "personal assistance services" or in any other manner.

Comments

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1993, 73rd Leg., ch. 800, Sec. 4, eff. Sept. 1, 1993; Acts 2003, 78th Leg., ch. 198, Sec. 2.194, eff. Sept. 1, 2003.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 826 (H.B. 4001), Sec. 3, eff. September 1, 2015.

Sec. 142.0025: Temporary License

If a person is in the process of becoming certified by the United States Department of Health and Human Services to qualify as a certified agency, the department may issue a temporary home and community support services agency license to the person authorizing the person to provide certified home health services. A temporary license is effective as provided by rules adopted by the executive commissioner.

Comments

Added by Acts 1991, 72nd Leg., ch. 14, Sec. 44, eff. Sept. 1, 1991. Amended by Acts 1993, 73rd Leg., ch. 800, Sec. 5, eff. Sept. 1, 1993.

Amended by:

Acts 2011, 82nd Leg., R.S., Ch. 879 (S.B. 223), Sec. 1.02, eff. September 1, 2011.

Acts 2011, 82nd Leg., R.S., Ch. 980 (H.B. 1720), Sec. 10, eff. September 1, 2011.

Sec. 142.003: Exemptions from Licensing Requirement

(a) The following persons need not be licensed under this chapter:

(1) a physician, dentist, registered nurse, occupational therapist, or physical therapist licensed under the laws of this state who provides home health services to a client only as a part of and incidental to that person's private office practice;

(2) a registered nurse, licensed vocational nurse, physical therapist, occupational therapist, speech therapist, medical social worker, or any other health care professional as determined by the department who provides home health services as a sole practitioner;

(3) a registry that operates solely as a clearinghouse to put consumers in contact with persons who provide home health, hospice, habilitation, or personal assistance services and that does not maintain official client records, direct client services, or compensate the person who is providing the service;

(4) an individual whose permanent residence is in the client's residence;

(5) an employee of a person licensed under this chapter who provides home health, hospice, habilitation, or personal assistance services only as an employee of the license holder and who receives no benefit for providing the services, other than wages from the license holder;

(6) a home, nursing home, convalescent home, assisted living facility, special care facility, or other institution for individuals who are elderly or who have disabilities that provides home health or personal assistance services only to residents of the home or institution;

(7) a person who provides one health service through a contract with a person licensed under this chapter;

(8) a durable medical equipment supply company;

(9) a pharmacy or wholesale medical supply company that does not furnish services, other than supplies, to a person at the person's house;

(10) a hospital or other licensed health care facility that provides home health or personal assistance services only to inpatient residents of the hospital or facility;

(11) a person providing home health or personal assistance services to an injured employee under Title 5, Labor Code;

(12) a visiting nurse service that:

(A) is conducted by and for the adherents of a well-recognized church or religious denomination; and

(B) provides nursing services by a person exempt from licensing by Section 301.004, Occupations Code, because the person furnishes nursing care in which treatment is only by prayer or spiritual means;

(13) an individual hired and paid directly by the client or the client's family or legal guardian to provide home health or personal assistance services;

(14) a business, school, camp, or other organization that provides home health or personal assistance services, incidental to the organization's primary purpose, to individuals employed by or participating in programs offered by the business, school, or camp that enable the individual to participate fully in the business's, school's, or camp's programs;

(15) a person or organization providing sitter-companion services or chore or household services that do not involve personal care, health, or health-related services;

(16) a licensed health care facility that provides hospice services under a contract with a hospice;

(17) a person delivering residential acquired immune deficiency syndrome hospice care who is licensed and designated as a residential AIDS hospice under Chapter 248;

(18) the Texas Department of Criminal Justice;

(19) a person that provides home health, hospice, habilitation, or personal assistance services only to persons receiving benefits under:

(A) the home and community-based services (HCS) waiver program;

(B) the Texas home living (TxHmL) waiver program;

(C) the STAR + PLUS or other Medicaid managed care program under the program's HCS or TxHmL certification; or

(D) Section 534.152, Government Code; or

(20) an individual who provides home health or personal assistance services as the employee of a consumer or an entity or employee of an entity acting as a consumer's fiscal agent under Section 531.051, Government Code.

(b) A home and community support services agency that owns or operates an administrative support site is not required to obtain a separate license under this chapter for the administrative support site.

(c) A hospice that operates or provides hospice services to an inpatient unit under a contract with a licensed health care facility is not required to obtain an alternate delivery site license for that inpatient unit.

Comments

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1993, 73rd Leg., ch. 800, Sec. 6, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 769, Sec. 2, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 276, Sec. 3, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 1420, Sec. 14.777, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 198, Sec. 2.55, eff. Sept. 1, 2003.

Amended by:

Acts 2013, 83rd Leg., R.S., Ch. 1310 (S.B. 7), Sec. 1.02, eff. September 1, 2013.

Acts 2015, 84th Leg., R.S., Ch. 826 (H.B. 4001), Sec. 4, eff. September 1, 2015.

Sec. 142.004: License Application

(a) An applicant for a license to provide home health, hospice, habilitation, or personal assistance services must:

(1) file a written application on a form prescribed by the department indicating the type of service the applicant wishes to provide;

(2) cooperate with any surveys required by the department for a license; and

(3) pay the license fee prescribed by this chapter.

(b) In addition to the requirements of Subsection (a), if the applicant is a certified agency when the application for a license to provide certified home health services is filed, the applicant must maintain its Medicare certification. If the applicant is not a certified agency when the application for a license to provide certified home health services is filed, the applicant must establish that it is in the process of receiving its certification from the United States Department of Health and Human Services.

(c) The executive commissioner by rule shall require that, at a minimum, before the department may approve a license application, the applicant must provide to the department:

(1) documentation establishing that, at a minimum, the applicant has sufficient financial resources to provide the services required by this chapter and by the department during the term of the license;

(2) a list of the management personnel for the proposed home and community support services agency, a description of personnel qualifications, and a plan for providing continuing training and education for the personnel during the term of the license;

(3) documentation establishing that the applicant is capable of meeting the minimum standards established by the executive commissioner relating to the quality of care;

(4) a plan that provides for the orderly transfer of care of the applicant's clients if the applicant cannot maintain or deliver home health, hospice, habilitation, or personal assistance services under the license;

(5) identifying information on the home and community support services agency owner, administrator, and chief financial officer to enable the department to conduct criminal background checks on those persons;

(6) identification of any controlling person with respect to the applicant; and

(7) documentation relating to any controlling person identified under Subdivision (6), if requested by the department and relevant to the controlling person's compliance with any applicable licensing standard required or adopted under this chapter.

(d) Information received by the department relating to the competence and financial resources of the applicant or a controlling person with respect to the applicant is confidential and may not be disclosed to the public.

(e) A home and community support services agency owned or operated by a state agency directly providing services is not required to provide the information described in Subsections (c)(1) and (5).

(f) The department shall evaluate and consider all information collected during the application process.

Comments

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., ch. 14, Sec. 45, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 800, Sec. 7, eff. Sept. 1, 1993; Acts 1997, 75th Leg., ch. 1191, Sec. 2, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 276, Sec. 4, eff. Sept. 1, 1999.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0398, eff. April 2, 2015.

Acts 2015, 84th Leg., R.S., Ch. 826 (H.B. 4001), Sec. 5, eff. September 1, 2015.

Sec. 142.005: Compliance Record in Other States

The department may require an applicant or license holder to provide the department with information relating to compliance by the applicant, the license holder, or a controlling person with respect to the applicant or license holder with regulatory requirements in any other state in which the applicant, license holder, or controlling person operates or operated a home and community support services agency.

Comments

Added by Acts 1999, 76th Leg., ch. 276, Sec. 5, eff. Sept. 1, 1999.

Sec. 142.006: License Issuance; Term

(a) The department shall issue a home and community support services agency license to provide home health, hospice, habilitation, or personal assistance services for each place of business to an applicant if:

(1) the applicant:

(A) qualifies for the license to provide the type of service that is to be offered by the applicant;

(B) submits an application and license fee as required by this chapter; and

(C) complies with all applicable licensing standards required or adopted under this chapter; and

(2) any controlling person with respect to the applicant complies with all applicable licensing standards required or adopted under this chapter.

(b) A license issued under this chapter expires three years after the date of issuance. The executive commissioner by rule may adopt a system under which licenses expire on various dates during the three-year period. For the year in which a license expiration date is changed, the commission shall prorate the license fee on a monthly basis. Each license holder shall pay only that portion of the license fee allocable to the number of months for which the license is valid. A license holder shall pay the total license renewal fee at the time of renewal. The commission may issue an initial license for a shorter term to conform expiration dates for a locality or an applicant. The commission may issue a temporary license to an applicant for an initial license.

(c) The department may find that a home and community support services agency has satisfied the requirements for licensing if the agency is accredited by an accreditation organization, such as The Joint Commission or the Community Health Accreditation Program, and the department finds that the accreditation organization has standards that meet or exceed the requirements for licensing under this chapter. A license fee is required of the home and community support services agency at the time of a license application.

(d) to (f) Repealed by Acts 2003, 78th Leg., ch. 198, Sec. 2.156(a)(1).

(g) The license must designate the types of services that the home and community support services agency is authorized to provide at or from the designated place of business. The types of services that may be designated include dialysis and habilitation.

Comments

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1993, 73rd Leg., ch. 800, Sec. 8, eff. Sept. 1, 1993; Acts 1997, 75th Leg., ch. 1191, Sec. 3, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 276, Sec. 6, eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 198, Sec. 2.156(a)(1), eff. Sept. 1, 2003.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 809 (S.B. 1318), Sec. 5, eff. September 1, 2007.

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0399, eff. April 2, 2015.

Acts 2015, 84th Leg., R.S., Ch. 826 (H.B. 4001), Sec. 6, eff. September 1, 2015.

Acts 2019, 86th Leg., R.S., Ch. 1160 (H.B. 3193), Sec. 1, eff. September 1, 2019.

Sec. 142.0061: Possession of Sterile Water Or Saline

A home and community support services agency or its employees who are registered nurses or licensed vocational nurses may purchase, store, or transport for the purpose of administering to their home health or hospice patients under physician's orders:

(1) sterile water for injection and irrigation; and

(2) sterile saline for injection and irrigation.

Comments

Added by Acts 1993, 73rd Leg., ch. 16, Sec. 1, eff. April 2, 1993. Amended by Acts 1993, 73rd Leg., ch. 789, Sec. 23, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 307, Sec. 1, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1129, Sec. 1, eff. Sept. 1, 1997.

Sec. 142.0062: Possession of Certain Vaccines Or Tuberculin

(a) A home and community support services agency or its employees who are registered nurses or licensed vocational nurses may purchase, store, or transport for the purpose of administering to the agency's employees, home health or hospice patients, or patient family members under physician's standing orders the following dangerous drugs:

(1) hepatitis B vaccine;

(2) influenza vaccine;

(3) tuberculin purified protein derivative for tuberculosis testing; and

(4) pneumococcal polysaccharide vaccine.

(b) A home and community support services agency that purchases, stores, or transports a vaccine or tuberculin under this section shall ensure that any standing order for the vaccine or tuberculin:

(1) is signed and dated by the physician;

(2) identifies the vaccine or tuberculin covered by the order;

(3) indicates that the recipient of the vaccine or tuberculin has been assessed as an appropriate candidate to receive the vaccine or tuberculin and has been assessed for the absence of any contraindication;

(4) indicates that appropriate procedures are established for responding to any negative reaction to the vaccine or tuberculin; and

(5) orders that a specific medication or category of medication be administered if the recipient has a negative reaction to the vaccine or tuberculin.

Comments

Added by Acts 1997, 75th Leg., ch. 1129, Sec. 1, eff. Sept. 1, 1997. Amended by Acts 2003, 78th Leg., ch. 198, Sec. 2.195, eff. Sept. 1, 2003.

Sec. 142.0063: Possession of Certain Dangerous Drugs

(a) A home and community support services agency in compliance with this section or its employees who are registered nurses or licensed vocational nurses may purchase, store, or transport for the purpose of administering to their home health or hospice patients in accordance with Subsection (c) the following dangerous drugs:

(1) any of the following items in a sealed portable container of a size determined by the dispensing pharmacist:

(A) 1,000 milliliters of 0.9 percent sodium chloride intravenous infusion;

(B) 1,000 milliliters of five percent dextrose in water injection; or

(C) sterile saline; or

(2) not more than five dosage units of any of the following items in an individually sealed, unused portable container:

(A) heparin sodium lock flush in a concentration of 10 units per milliliter or 100 units per milliliter;

(B) epinephrine HCl solution in a concentration of 1 to 1,000;

(C) diphenhydramine HCl solution in a concentration of 50 milligrams per milliliter;

(D) methylprednisolone in a concentration of 125 milligrams per two milliliters;

(E) naloxone in a concentration of one milligram per milliliter in a two-milliliter vial;

(F) promethazine in a concentration of 25 milligrams per milliliter;

(G) glucagon in a concentration of one milligram per milliliter;

(H) furosemide in a concentration of 10 milligrams per milliliter;

(I) lidocaine 2.5 percent and prilocaine 2.5 percent cream in a five-gram tube; or

(J) lidocaine HCl solution in a concentration of one percent in a two-milliliter vial.

(b) A home and community support services agency or the agency's authorized employees may purchase, store, or transport dangerous drugs in a sealed portable container under this section only if the agency has established policies and procedures to ensure that:

(1) the container is handled properly with respect to storage, transportation, and temperature stability;

(2) a drug is removed from the container only on a physician's written or oral order;

(3) the administration of any drug in the container is performed in accordance with a specific treatment protocol; and

(4) the agency maintains a written record of the dates and times the container is in the possession of a registered nurse or licensed vocational nurse.

(c) A home and community support services agency or the agency's authorized employee who administers a drug listed in Subsection (a) may administer the drug only in the patient's residence under physician's orders in connection with the provision of emergency treatment or the adjustment of:

(1) parenteral drug therapy; or

(2) vaccine or tuberculin administration.

(d) If a home and community support services agency or the agency's authorized employee administers a drug listed in Subsection (a) pursuant to a physician's oral order, the physician shall promptly send a signed copy of the order to the agency, and the agency shall:

(1) not later than 24 hours after receipt of the order, reduce the order to written form and send a copy of the form to the dispensing pharmacy by mail or facsimile transmission; and

(2) not later than 20 days after receipt of the order, send a copy of the order as signed by and received from the physician to the dispensing pharmacy.

(e) A pharmacist that dispenses a sealed portable container under this section shall ensure that the container:

(1) is designed to allow access to the contents of the container only if a tamper-proof seal is broken;

(2) bears a label that lists the drugs in the container and provides notice of the container's expiration date, which is the earlier of:

(A) the date that is six months after the date on which the container is dispensed; or

(B) the earliest expiration date of any drug in the container; and

(3) remains in the pharmacy or under the control of a pharmacist, registered nurse, or licensed vocational nurse.

(f) If a home and community support services agency or the agency's authorized employee purchases, stores, or transports a sealed portable container under this section, the agency shall deliver the container to the dispensing pharmacy for verification of drug quality, quantity, integrity, and expiration dates not later than the earlier of:

(1) the seventh day after the date on which the seal on the container is broken; or

(2) the date for which notice is provided on the container label.

(g) A pharmacy that dispenses a sealed portable container under this section shall take reasonable precautionary measures to ensure that the home and community support services agency receiving the container complies with Subsection (f). On receipt of a container under Subsection (f), the pharmacy shall perform an inventory of the drugs used from the container and shall restock and reseal the container before delivering the container to the agency for reuse.

Comments

Added by Acts 1997, 75th Leg., ch. 1129, Sec. 1, eff. Sept. 1, 1997.

Sec. 142.0065: Display of License

A license issued under this chapter shall be displayed in a conspicuous place in the designated place of business and must show:

(1) the name and address of the licensee;

(2) the name of the owner or owners, if different from the information provided under Subdivision (1);

(3) the license expiration date; and

(4) the types of services authorized to be provided under the license.

Comments

Added by Acts 1993, 73rd Leg., ch. 800, Sec. 9, eff. Sept. 1, 1993.

Sec. 142.007: Notice of Drug Testing Policy

An agency licensed under this chapter shall provide to the following persons a written statement describing the agency's policy for the drug testing of employees who have direct contact with clients:

(1) each person applying for services from the agency; and

(2) any person requesting the information.

Comments

Added by Acts 1999, 76th Leg., ch. 1020, Sec. 1, eff. Sept. 1, 1999.

Sec. 142.008: Branch Office

(a) The department may issue a branch office license to a person who holds a license to provide home health or personal assistance services.

(b) The executive commissioner by rule shall establish eligibility requirements for a branch office license.

(c) A branch office license expires on the same date as the license to provide home health or personal assistance services held by the applicant for the branch office license.

Comments

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1993, 73rd Leg., ch. 800, Sec. 10, eff. Sept. 1, 1993.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0400, eff. April 2, 2015.

Sec. 142.0085: Alternate Delivery Site License

(a) The department shall issue an alternate delivery site license to a qualified hospice.

(b) The executive commissioner by rule shall establish standards required for the issuance of an alternate delivery site license.

(c) An alternate delivery site license expires on the same date as the license to provide hospice services held by the hospice.

Comments

Added by Acts 1993, 73rd Leg., ch. 800, Sec. 11, eff. Sept. 1, 1993.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0401, eff. April 2, 2015.

Sec. 142.009: Surveys; Consumer Complaints

(a) The department or its representative may enter the premises of a license applicant or license holder at reasonable times to conduct a survey incidental to the issuance of a license and at other times as the department considers necessary to ensure compliance with this chapter and the rules adopted under this chapter.

(a-1) A license applicant or license holder must provide the department representative conducting the survey with a reasonable and safe workspace at the premises. The executive commissioner may adopt rules to implement this subsection.

(b) A home and community support services agency shall provide each person who receives home health, hospice, habilitation, or personal assistance services with a written statement that contains the name, address, and telephone number of the department and a statement that informs the recipient that a complaint against a home and community support services agency may be directed to the department.

(c) The department or its authorized representative shall investigate each complaint received regarding the provision of home health, hospice, habilitation, or personal assistance services and may, as a part of the investigation:

(1) conduct an unannounced survey of a place of business, including an inspection of medical and personnel records, if the department has reasonable cause to believe that the place of business is in violation of this chapter or a rule adopted under this chapter;

(2) conduct an interview with a recipient of home health, hospice, habilitation, or personal assistance services, which may be conducted in the recipient's home if the recipient consents;

(3) conduct an interview with a family member of a recipient of home health, hospice, habilitation, or personal assistance services who is deceased or other person who may have knowledge of the care received by the deceased recipient of the home health, hospice, habilitation, or personal assistance services; or

(4) interview a physician or other health care practitioner, including a member of the personnel of a home and community support services agency, who cares for a recipient of home health, hospice, habilitation, or personal assistance services.

(d) The reports, records, and working papers used or developed in an investigation made under this section are confidential and may not be released or made public except:

(1) to a state or federal agency;

(2) to federal, state, or local law enforcement personnel;

(3) with the consent of each person identified in the information released;

(4) in civil or criminal litigation matters or licensing proceedings as otherwise allowed by law or judicial rule;

(5) on a form developed by the department that identifies any deficiencies found without identifying a person, other than the home and community support services agency;

(6) on a form required by a federal agency if:

(A) the information does not reveal the identity of an individual, including a patient or a physician or other medical practitioner;

(B) the service provider subject to the investigation had a reasonable opportunity to review the information and offer comments to be included with the information released or made public; and

(C) the release of the information complies with any other federal requirement; or

(7) as provided by Section 142.0092.

(e) The department's representative shall hold a conference with the person in charge of the home and community support services agency before beginning the on-site survey to explain the nature and scope of the survey. When the survey is completed, the department's representative shall hold a conference with the person who is in charge of the agency and shall identify any records that were duplicated. Agency records may be removed from an agency only with the agency's consent.

(f) At the conclusion of a survey or complaint investigation, the department shall fully inform the person who is in charge of the home and community support services agency of the preliminary findings of the survey at an exit conference and shall give the person a reasonable opportunity to submit additional facts or other information to the department's authorized representative in response to those findings. The response shall be made a part of the record of the survey for all purposes. The department's representative shall leave a written list of the preliminary findings with the agency at the exit conference.

(g) After a survey of a home and community support services agency by the department, the department shall provide to the home and community support services agency administrator:

(1) specific and timely written notice of the official findings of the survey, including:

(A) the specific nature of the survey;

(B) any alleged violations of a specific statute or rule;

(C) the specific nature of any finding regarding an alleged violation or deficiency; and

(D) if a deficiency is alleged, the severity of the deficiency;

(2) information on the identity, including the name, of each department representative conducting or reviewing the results of the survey and the date on which the department representative acted on the matter; and

(3) if requested by the agency, copies of all documents relating to the survey maintained by the department or provided by the department to any other state or federal agency that are not confidential under state law.

(g-1) If the department or the department's authorized representative discovers any additional violations during the review of field notes or preparation of the official statement of deficiencies for a home and community support services agency, the department or the department's representative shall conduct an additional exit conference regarding the additional violations. The additional exit conference must be held in person and may not be held over the telephone, by e-mail, or by facsimile transmission.

(h) Except for the investigation of complaints, a home and community support services agency licensed by the department under this chapter is not subject to additional surveys relating to home health, hospice, or personal assistance services while the agency maintains accreditation for the applicable service from The Joint Commission, the Community Health Accreditation Program, or other accreditation organizations that meet or exceed the regulations adopted under this chapter. Each provider must submit to the department documentation from the accrediting body indicating that the provider is accredited when the provider is applying for the initial license and annually when the license is renewed.

(i) Repealed by Acts 2003, 78th Leg., ch. 198, Sec. 2.156(a)(1).

(i) Except as provided by Subsection (h), the department may not renew an initial home and community support services agency license unless the department has conducted an initial on-site survey of the agency.

(j) Except as provided by Subsections (h) and (l), an on-site survey must be conducted within 18 months after a survey for an initial license. After that time, an on-site survey must be conducted at least every 36 months.

(k) If a person is renewing or applying for a license to provide more than one type of service under this chapter, the surveys required for each of the services the license holder or applicant seeks to provide shall be completed during the same surveyor visit.

(l) The department and other state agencies that are under the commission and that contract with home and community support services agencies to deliver services for which a license is required under this chapter shall execute a memorandum of understanding that establishes procedures to eliminate or reduce duplication of standards or conflicts between standards and of functions in license, certification, or compliance surveys and complaint investigations. The memorandum of understanding must be approved by the commission.

Comments

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., ch. 14, Sec. 46, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 800, Sec. 12, eff. Sept. 1, 1993; Acts 1997, 75th Leg., ch. 1191, Sec. 4, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 276, Sec. 7, eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 198, Sec. 2.56, 2.156(a)(1), eff. Sept. 1, 2003.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 809 (S.B. 1318), Sec. 6, eff. September 1, 2007.

Acts 2007, 80th Leg., R.S., Ch. 974 (S.B. 344), Sec. 1, eff. September 1, 2007.

Acts 2011, 82nd Leg., R.S., Ch. 879 (S.B. 223), Sec. 1.03, eff. September 1, 2011.

Acts 2011, 82nd Leg., R.S., Ch. 980 (H.B. 1720), Sec. 11, eff. September 1, 2011.

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0402, eff. April 2, 2015.

Acts 2015, 84th Leg., R.S., Ch. 826 (H.B. 4001), Sec. 7, eff. September 1, 2015.

Acts 2015, 84th Leg., R.S., Ch. 860 (S.B. 1880), Sec. 13, eff. September 1, 2015.

Acts 2015, 84th Leg., R.S., Ch. 1272 (S.B. 760), Sec. 7, eff. September 1, 2015.

Sec. 142.0091: Training

(a) The department shall provide specialized training to representatives of the department who survey home and community support services agencies. The training must include information relating to:

(1) the conduct of appropriate surveys that do not focus exclusively on medical standards under an acute care model;

(2) acceptable delegation of nursing tasks; and

(3) the provision of person-centered services.

(b) In developing and updating the training required by Subsection (a), the department shall consult with and include providers of home health, hospice, habilitation, and personal assistance services, recipients of those services and their family members, and representatives of appropriate advocacy organizations.

(c) The department at least semiannually shall provide joint training for home and community support services agencies and surveyors on subjects that address the 10 most common violations of federal or state law by home and community support services agencies. The department may charge a home and community support services agency a fee, not to exceed $50 per person, for the training.

Comments

Added by Acts 1999, 76th Leg., ch. 276, Sec. 8, eff. Sept. 1, 1999.

Amended by:

Acts 2011, 82nd Leg., R.S., Ch. 879 (S.B. 223), Sec. 1.04, eff. September 1, 2011.

Acts 2011, 82nd Leg., R.S., Ch. 879 (S.B. 223), Sec. 1.05, eff. September 1, 2011.

Acts 2011, 82nd Leg., R.S., Ch. 980 (H.B. 1720), Sec. 12, eff. September 1, 2011.

Acts 2011, 82nd Leg., R.S., Ch. 980 (H.B. 1720), Sec. 13, eff. September 1, 2011.

Acts 2015, 84th Leg., R.S., Ch. 826 (H.B. 4001), Sec. 8, eff. September 1, 2015.

Sec. 142.0092: Consumer Complaint Data

(a) The department shall maintain records or documents relating to complaints directed to the department by consumers of home health, hospice, habilitation, or personal assistance services. The department shall organize the records or documents according to standard, statewide categories as determined by the department. In determining appropriate categories, the department shall make distinctions based on factors useful to the public in assessing the quality of services provided by a home and community support services agency, including whether the complaint:

(1) was determined to be valid or invalid;

(2) involved significant physical harm or death to a patient;

(3) involved financial exploitation of a patient; or

(4) resulted in any sanction imposed against the agency.

(b) The department shall make the information maintained under this section available to the public in a useful format that does not identify individuals implicated in the complaints.

Comments

Added by Acts 1999, 76th Leg., ch. 276, Sec. 8, eff. Sept. 1, 1999.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 826 (H.B. 4001), Sec. 9, eff. September 1, 2015.

Sec. 142.0093: Retaliation Prohibited

(a) A person licensed under this chapter may not retaliate against another person for filing a complaint, presenting a grievance, or providing in good faith information relating to home health, hospice, habilitation, or personal assistance services provided by the license holder.

(b) This section does not prohibit a license holder from terminating an employee for a reason other than retaliation.

Comments

Added by Acts 1999, 76th Leg., ch. 276, Sec. 8, eff. Sept. 1, 1999.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 826 (H.B. 4001), Sec. 10, eff. September 1, 2015.

Sec. 142.0094: Use of Regulatory Survey Reports and Other Documents

(a) Except as otherwise provided by this section, a survey report or other document prepared by the department that relates to regulation of a home and community support services agency is not admissible as evidence in a civil action to prove that the agency violated a standard prescribed under this chapter.

(b) Subsection (a) does not:

(1) bar the admission into evidence of department survey reports or other documents in an enforcement action in which the state or an agency or political subdivision of the state is a party, including:

(A) an action seeking injunctive relief under Section 142.013;

(B) an action seeking imposition of a civil penalty under Section 142.014;

(C) a contested case hearing involving imposition of an administrative penalty under Section 142.017; and

(D) a contested case hearing involving denial, suspension, or revocation of a license issued under this chapter;

(2) bar the admission into evidence of department survey reports or other documents that are offered:

(A) to establish warning or notice to a home and community support services agency of a relevant department determination; or

(B) under any rule or evidentiary predicate of the Texas Rules of Evidence;

(3) prohibit or limit the testimony of a department employee, in accordance with the Texas Rules of Evidence, as to observations, factual findings, conclusions, or determinations that a home and community support services agency violated a standard prescribed under this chapter if the observations, factual findings, conclusions, or determinations were made in the discharge of the employee's official duties for the department; or

(4) prohibit or limit the use of department survey reports or other documents in depositions or other forms of discovery conducted in connection with a civil action if use of the survey reports or other documents appears reasonably calculated to lead to the discovery of admissible evidence.

Comments

Added by Acts 1999, 76th Leg., ch. 276, Sec. 8, eff. Sept. 1, 1999.

Sec. 142.0095: Investigations of Home and Community Support Services Agencies Providing Hospice Services

The commission or its authorized representative shall investigate an allegation of abuse, neglect, or exploitation of a client of any age of a home and community support services agency if:

(1) the abuse, neglect, or exploitation occurs when the client is receiving inpatient hospice services; and

(2) the alleged perpetrator of the abuse, neglect, or exploitation is an employee, volunteer, contractor, or subcontractor of the home and community support services agency.

Comments

Added by Acts 2019, 86th Leg., R.S., Ch. 878 (H.B. 3079), Sec. 1, eff. June 10, 2019.

Sec. 142.010: Fees

(a) The executive commissioner by rule shall set license fees for home and community support services agencies in amounts that are reasonable to meet the costs of administering this chapter, except that the fees may not be less than $600 or more than $2,625 for a license to provide home health, hospice, habilitation, or personal assistance services.

(b) The executive commissioner shall consider the size of the home and community support services agency, the number of clients served, the number of services provided, and the necessity for review of other accreditation documentation in determining the amount collected by the department for initial and renewal license fees.

(c) A fee charged under this section is nonrefundable.

Comments

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1993, 73rd Leg., ch. 800, Sec. 13, eff. Sept. 1, 1993; Acts 1997, 75th Leg., ch. 1191, Sec. 5, eff. Sept. 1, 1997.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 809 (S.B. 1318), Sec. 7, eff. September 1, 2007.

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0403, eff. April 2, 2015.

Acts 2015, 84th Leg., R.S., Ch. 826 (H.B. 4001), Sec. 11, eff. September 1, 2015.

Acts 2019, 86th Leg., R.S., Ch. 1160 (H.B. 3193), Sec. 2, eff. September 1, 2019.

Sec. 142.0104: Change in Application Information

(a) If certain application information as specified by department rule changes after the applicant submits an application to the department for a license under this chapter or after the department issues the license, the license holder shall report the change to the department and pay a fee not to exceed $50 not later than the time specified by department rule.

(b) The executive commissioner by rule shall:

(1) specify the information provided in an application that a license holder shall report to the department if the information changes;

(2) prescribe the time for reporting a change in the application information required by Subdivision (1);

(3) establish which changes required to be reported under Subdivision (1) will require department evaluation and approval; and

(4) set the amount of a late fee to be assessed against a license holder who fails to report a change in the application information within the time prescribed under Subdivision (2).

Comments

Added by Acts 2011, 82nd Leg., R.S., Ch. 879 (S.B. 223), Sec. 1.06, eff. September 1, 2011.

Added by Acts 2011, 82nd Leg., R.S., Ch. 980 (H.B. 1720), Sec. 14, eff. September 1, 2011.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0404, eff. April 2, 2015.

Sec. 142.0105: License Renewal

(a) A person who is otherwise eligible to renew a license may renew an unexpired license by submitting a completed application for renewal and paying the required renewal fee to the department not later than the 45th day before the expiration date of the license. A person whose license has expired may not engage in activities that require a license.

(b) An applicant for a license renewal who submits an application later than the 45th day before the expiration date of the license is subject to a late fee in accordance with department rules.

(c) Not later than the 120th day before the date a person's license is scheduled to expire, the department shall send written notice of the impending expiration to the person at the person's last known address according to the records of the department. The written notice must include an application for license renewal and instructions for completing the application.

Comments

Added by Acts 1999, 76th Leg., ch. 887, Sec. 1, eff. Sept. 1, 1999.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 809 (S.B. 1318), Sec. 8, eff. September 1, 2007.

Sec. 142.011: Denial, Suspension, Or Revocation of License

(a) The department may deny a license application or suspend or revoke the license of a person who:

(1) fails to comply with the rules or standards for licensing required by this chapter; or

(2) engages in conduct that violates Section 102.001, Occupations Code.

(b) The department may immediately suspend or revoke a license when the health and safety of persons are threatened. If the department issues an order of immediate suspension or revocation, the department shall immediately give the chief executive officer of the home and community support services agency adequate notice of the action taken, the legal grounds for the action, and the procedure governing appeal of the action. A person whose license is suspended or revoked under this subsection is entitled to a hearing not later than the seventh day after the effective date of the suspension or revocation.

(c) The department may suspend or revoke a home and community support services agency's license to provide certified home health services if the agency fails to maintain its certification qualifying the agency as a certified agency. A home and community support services agency that is licensed to provide certified home health services and that submits a request for a hearing as provided by Subsection (d) is subject to the requirements of this chapter relating to a home and community support services agency that is licensed to provide home health services, but not certified home health services, until the suspension or revocation is finally determined by the department or, if the license is suspended or revoked, until the last day for seeking review of the department order or a later date fixed by order of the reviewing court.

(d) A person whose application is denied or whose license is suspended or revoked is entitled to a hearing if the person submits a written request to the commission. Chapter 2001, Government Code, and the department's rules for contested case hearings apply to hearings conducted under this section and to appeals from department decisions.

Comments

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., ch. 14, Sec. 47, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 800, Sec. 14, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 76, Sec. 5.95(49), eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 276, Sec. 9, eff. Sept. 1, 1999.

Amended by:

Acts 2011, 82nd Leg., R.S., Ch. 879 (S.B. 223), Sec. 1.07, eff. September 1, 2011.

Acts 2011, 82nd Leg., R.S., Ch. 980 (H.B. 1720), Sec. 15, eff. September 1, 2011.

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0405, eff. April 2, 2015.

Sec. 142.012: Powers and Duties

(a) The executive commissioner shall adopt rules necessary to implement this chapter. The executive commissioner may adopt rules governing the duties and responsibilities of home and community support services agency administrators, including rules regarding:

(1) an administrator's management of daily operations of the home and community support services agency;

(2) an administrator's responsibility for supervising the provision of quality care to agency clients;

(3) an administrator's implementation of agency policy and procedures; and

(4) an administrator's responsibility to be available to the agency at all times in person or by telephone.

(b) The executive commissioner by rule shall set minimum standards for home and community support services agencies licensed under this chapter that relate to:

(1) qualifications for professional and nonprofessional personnel, including volunteers;

(2) supervision of professional and nonprofessional personnel, including volunteers;

(3) the provision and coordination of treatment and services, including support and bereavement services, as appropriate;

(4) the management, ownership, and organizational structure, including lines of authority and delegation of responsibility and, as appropriate, the composition of an interdisciplinary team;

(5) clinical and business records;

(6) financial ability to carry out the functions as proposed;

(7) safety, fire prevention, and sanitary standards for residential units and inpatient units; and

(8) any other aspects of home health, hospice, habilitation, or personal assistance services as necessary to protect the public.

(c) The initial minimum standards adopted under Subsection (b) for hospice services must be at least as stringent as the conditions of participation for a Medicare certified provider of hospice services in effect on April 30, 1993, under Title XVIII, Social Security Act (42 U.S.C. Section 1395 et seq.).

(d) The department shall prescribe forms necessary to perform its duties.

(e) The department shall require each person or home and community support services agency providing home health, hospice, habilitation, or personal assistance services to implement and enforce the applicable provisions of Chapter 102, Human Resources Code.

Comments

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1993, 73rd Leg., ch. 800, Sec. 15, eff. Sept. 1, 1993.

Amended by:

Acts 2011, 82nd Leg., R.S., Ch. 879 (S.B. 223), Sec. 1.08, eff. September 1, 2011.

Acts 2011, 82nd Leg., R.S., Ch. 980 (H.B. 1720), Sec. 16, eff. September 1, 2011.

Acts 2015, 84th Leg., R.S., Ch. 826 (H.B. 4001), Sec. 12, eff. September 1, 2015.

Sec. 142.013: Injunction

(a) A district court, on petition of the department and on a finding by the court that a person is violating this chapter, may by injunction:

(1) prohibit the person from continuing the violation; or

(2) grant any other injunctive relief warranted by the facts.

(b) The attorney general shall institute and conduct a suit authorized by this section at the request of the department and in the name of the state.

(c) A suit for injunctive relief must be brought in Travis County.

Comments

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 142.014: Civil Penalty

(a) A person who engages in the business of providing home health, hospice, habilitation, or personal assistance service, or represents to the public that the person is a provider of home health, hospice, habilitation, and personal assistance services for pay, without a license issued under this chapter authorizing the services that are being provided is liable for a civil penalty of not less than $1,000 or more than $2,500 for each day of violation. Penalties may be appropriated only to the department and to administer this chapter.

(b) An action to recover a civil penalty is in addition to an action brought for injunctive relief under Section 142.013 or any other remedy provided by law. The attorney general shall bring suit on behalf of the state to collect the civil penalty.

Comments

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1993, 73rd Leg., ch. 800, Sec. 16, eff. Sept. 1, 1993.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 826 (H.B. 4001), Sec. 13, eff. September 1, 2015.

Sec. 142.0145: Violation of Law Relating to Advance Directives

(a) The department shall assess an administrative penalty against a home and community support services agency that violates Section 166.004.

(b) A penalty assessed under this section shall be $500.

(c) The penalty shall be assessed in accordance with department rules. The rules must provide for notice and an opportunity for a hearing.

Comments

Added by Acts 1999, 76th Leg., ch. 450, Sec. 2.02, eff. Sept. 1, 1999.

Sec. 142.017: Administrative Penalty

(a) The department may assess an administrative penalty against a person who violates:

(1) this chapter or a rule adopted under this chapter; or

(2) Section 102.001, Occupations Code, if the violation relates to the provision of home health, hospice, habilitation, or personal assistance services.

(b) The penalty shall be not less than $100 or more than $1,000 for each violation. Each day of a violation that occurs before the day on which the person receives written notice of the violation from the department does not constitute a separate violation and shall be considered to be one violation. Each day of a continuing violation that occurs after the day on which the person receives written notice of the violation from the department constitutes a separate violation.

(c) The executive commissioner by rule shall specify each violation for which the department may assess an administrative penalty. In determining which violations warrant penalties, the department shall consider:

(1) the seriousness of the violation, including the nature, circumstances, extent, and gravity of the violation and the hazard of the violation to the health or safety of clients; and

(2) whether the affected home and community support services agency had identified the violation as a part of its internal quality assurance process and had made appropriate progress on correction.

(d) The executive commissioner by rule shall establish a schedule of appropriate and graduated penalties for each violation based on:

(1) the seriousness of the violation, including the nature, circumstances, extent, and gravity of the violation and the hazard or safety of clients;

(2) the history of previous violations by the person or a controlling person with respect to that person;

(3) whether the affected home and community support services agency had identified the violation as a part of its internal quality assurance process and had made appropriate progress on correction;

(4) the amount necessary to deter future violations;

(5) efforts made to correct the violation; and

(6) any other matters that justice may require.

(e) Except as provided by Subsection (j), the executive commissioner by rule shall provide the home and community support services agency with a reasonable period of time following the first day of a violation to correct the violation before the department assesses an administrative penalty if a plan of correction has been implemented.

(f) An administrative penalty may not be assessed for minor violations unless those violations are of a continuing nature or are not corrected.

(g) The executive commissioner shall establish a system to ensure standard and consistent application of penalties regardless of the home and community support services agency location.

(h) All proceedings for the assessment of an administrative penalty under this chapter are subject to Chapter 2001, Government Code.

(i) The department may not assess an administrative penalty against a state agency.

(j) The department may assess an administrative penalty without providing a reasonable period of time to the agency to correct the violation if the violation:

(1) results in serious harm or death;

(2) constitutes a serious threat to health or safety;

(3) substantially limits the agency's capacity to provide care;

(4) is a violation in which a person:

(A) makes a false statement, that the person knows or should know is false, of a material fact:

(i) on an application for issuance or renewal of a license or in an attachment to the application; or

(ii) with respect to a matter under investigation by the department;

(B) refuses to allow a representative of the department to inspect a book, record, or file required to be maintained by an agency;

(C) wilfully interferes with the work of a representative of the department or the enforcement of this chapter;

(D) wilfully interferes with a representative of the department preserving evidence of a violation of this chapter or a rule, standard, or order adopted or license issued under this chapter;

(E) fails to pay a penalty assessed by the department under this chapter not later than the 10th day after the date the assessment of the penalty becomes final; or

(F) fails to submit:

(i) a plan of correction not later than the 10th day after the date the person receives a statement of licensing violations; or

(ii) an acceptable plan of correction not later than the 30th day after the date the person receives notification from the department that the previously submitted plan of correction is not acceptable;

(5) is a violation of Section 142.0145; or

(6) involves the rights of the elderly under Chapter 102, Human Resources Code.

Comments

Added by Acts 1997, 75th Leg., ch. 1191, Sec. 7, eff. Sept. 1, 1997. Amended by Acts 1999, 76th Leg., ch. 276, Sec. 10, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 1420, Sec. 14.778, eff. Sept. 1, 2001.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 809 (S.B. 1318), Sec. 9, eff. September 1, 2007.

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0406, eff. April 2, 2015.

Acts 2015, 84th Leg., R.S., Ch. 826 (H.B. 4001), Sec. 14, eff. September 1, 2015.

Sec. 142.0171: Notice; Request for Hearing

(a) If, after investigation of a possible violation and the facts surrounding that possible violation, the department determines that a violation has occurred, the department shall give written notice of the violation to the person alleged to have committed the violation. The notice shall include:

(1) a brief summary of the alleged violation;

(2) a statement of the amount of the proposed penalty based on the factors listed in Section 142.017(d); and

(3) a statement of the person's right to a hearing on the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty.

(b) Not later than the 20th day after the date on which the notice is received, the person notified may accept the determination of the department made under this section, including the proposed penalty, or may make a written request for a hearing on that determination.

(c) If the person notified of the violation accepts the determination of the department or if the person fails to respond in a timely manner to the notice, the department shall order the person to pay the proposed penalty.

Comments

Added by Acts 1997, 75th Leg., ch. 1191, Sec. 7, eff. Sept. 1, 1997.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0407, eff. April 2, 2015.

Sec. 142.0172: Hearing; Order

(a) If the person notified requests a hearing, the department shall refer the case to the State Office of Administrative Hearings and an administrative law judge of that office shall conduct the hearing.

(a-1) The department shall give written notice of the hearing to the person.

(b) The administrative law judge shall make findings of fact and conclusions of law and shall promptly issue to the department a proposal for decision as to the occurrence of the violation and a recommendation as to the amount of the proposed penalty if a penalty is determined to be warranted.

(c) Based on the findings of fact and conclusions of law and the recommendations of the administrative law judge, the department by order may find that a violation has occurred and may assess a penalty or may find that no violation has occurred.

Comments

Added by Acts 1997, 75th Leg., ch. 1191, Sec. 7, eff. Sept. 1, 1997.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0408, eff. April 2, 2015.

Sec. 142.0173: Notice and Payment of Administrative Penalty; Judicial Review; Refund

(a) The department shall give notice of the order under Section 142.0172(c) to the person alleged to have committed the violation. The notice must include:

(1) separate statements of the findings of fact and conclusions of law;

(2) the amount of any penalty assessed; and

(3) a statement of the right of the person to judicial review of the order.

(b) Not later than the 30th day after the date on which the decision is final as provided by Chapter 2001, Government Code, the person shall:

(1) pay the penalty;

(2) pay the amount of the penalty and file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty; or

(3) without paying the penalty, file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty.

(c) Within the 30-day period, a person who acts under Subsection (b)(3) may:

(1) stay enforcement of the penalty by:

(A) paying the penalty to the court for placement in an escrow account; or

(B) giving to the court a supersedeas bond that is approved by the court for the amount of the penalty and that is effective until all judicial review of the order is final; or

(2) request the court to stay enforcement of the penalty by:

(A) filing with the court a sworn affidavit of the person stating that the person is financially unable to pay the amount of the penalty and is financially unable to give the supersedeas bond; and

(B) giving a copy of the affidavit to the department by certified mail.

(d) If the department receives a copy of an affidavit under Subsection (c)(2), the department may file with the court, within 10 days after the date the copy is received, a contest to the affidavit. The court shall hold a hearing on the facts alleged in the affidavit as soon as practicable and shall stay the enforcement of the penalty on finding that the alleged facts are true. The person who files an affidavit has the burden of proving that the person is financially unable to pay the penalty and to give a supersedeas bond.

(e) If the person does not pay the penalty and the enforcement of the penalty is not stayed, the department may refer the matter to the attorney general for collection of the penalty.

(f) Judicial review of the order:

(1) is instituted by filing a petition as provided by Subchapter G, Chapter 2001, Government Code; and

(2) is under the substantial evidence rule.

(g) If the court sustains the occurrence of the violation, the court may uphold or reduce the amount of the penalty and order the person to pay the full or reduced amount of the penalty. If the court does not sustain the occurrence of the violation, the court shall order that no penalty is owed.

(h) When the judgment of the court becomes final, the court shall proceed under this subsection. If the person paid the amount of the penalty under Subsection (b)(2) and if that amount is reduced or is not upheld by the court, the court shall order that the department pay the appropriate amount plus accrued interest to the person. The rate of the interest is the rate charged on loans to depository institutions by the New York Federal Reserve Bank, and the interest shall be paid for the period beginning on the date the penalty was paid and ending on the date the penalty is remitted. If the person paid the penalty under Subsection (c)(1)(A), or gave a supersedeas bond, and if the amount of the penalty is not upheld by the court, the court shall order the release of the escrow account or bond. If the person paid the penalty under Subsection (c)(1)(A) and the amount of the penalty is reduced, the court shall order that the amount of the penalty be paid to the department from the escrow account and that the remainder of the account be released. If the person gave a supersedeas bond and if the amount of the penalty is reduced, the court shall order the release of the bond after the person pays the amount.

Comments

Added by Acts 1997, 75th Leg., ch. 1191, Sec. 7, eff. Sept. 1, 1997.

Sec. 142.0174: Use of Administrative Penalty

An administrative penalty collected under this subchapter may be appropriated for the purpose of funding the grant program established under Section 161.074, Human Resources Code.

Comments

Added by Acts 1997, 75th Leg., ch. 1191, Sec. 7, eff. Sept. 1, 1997.

Amended by:

Acts 2005, 79th Leg., Ch. 786 (S.B. 52), Sec. 1, eff. September 1, 2005.

Sec. 142.0175: Expenses and Costs for Collection of Civil Or Administrative Penalty

(a) If the attorney general brings an action against a person under Section 142.013 or 142.014 or to enforce an administrative penalty assessed under Section 142.0173 and an injunction is granted against the person or the person is found liable for a civil or administrative penalty, the attorney general may recover, on behalf of the attorney general and the department, reasonable expenses and costs.

(b) For purposes of this section, reasonable expenses and costs include expenses incurred by the department and the attorney general in the investigation, initiation, and prosecution of an action, including reasonable investigative costs, attorney's fees, witness fees, and deposition expenses.

Comments

Added by Acts 1997, 75th Leg., ch. 1191, Sec. 7, eff. Sept. 1, 1997.

Sec. 142.018: Reports of Abuse, Exploitation, Or Neglect

(a) In this section, "abuse," "exploitation," and "neglect" have the meanings applicable through a rule adopted by the executive commissioner under Section 48.002(c), Human Resources Code, except that if the executive commissioner has not adopted applicable rules under that section, the statutory definitions of those terms under Section 48.002(a), Human Resources Code, shall be used.

(b) A home and community support services agency that has cause to believe that a person receiving services from the agency has been abused, exploited, or neglected by an employee of the agency shall report the information to:

(1) the department; and

(2) the Department of Family and Protective Services or other appropriate state agency as required by Section 48.051, Human Resources Code.

(c) This section does not affect the duty or authority of any state agency to conduct an investigation of alleged abuse, exploitation, or neglect as provided by other law. An investigation of alleged abuse, exploitation, or neglect may be conducted without an on-site survey, as appropriate.

Comments

Added by Acts 1999, 76th Leg., ch. 276, Sec. 11, eff. Sept. 1, 1999. Amended by Acts 2003, 78th Leg., ch. 198, Sec. 2.197, eff. Sept. 1, 2003.

Amended by:

Acts 2011, 82nd Leg., R.S., Ch. 1056 (S.B. 221), Sec. 3, eff. September 1, 2011.

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0409, eff. April 2, 2015.

Sec. 142.019: Certain Physician Referrals Prohibited

A physician may not refer a patient to a home and community support services agency if the referral violates 42 U.S.C. Section 1395nn and its subsequent amendments.

Comments

Added by Acts 1999, 76th Leg., ch. 276, Sec. 11, eff. Sept. 1, 1999.

Sec. 142.020: Disposal of Special Or Medical Waste

(a) A home and community support services agency that generates special or medical waste while providing home health services must dispose of the waste in the same manner that the home and community support services agency disposes of special or medical waste generated in the agency's office location.

(b) A home and community support services agency shall provide both verbal and written instructions to the agency's client regarding the proper procedure for disposing of sharps. Sharps include hypodermic needles; hypodermic syringes with attached needles; scalpel blades; razor blades, disposable razors, and disposable scissors used in medical procedures; and intravenous stylets and rigid introducers.

Comments

Added by Acts 1999, 76th Leg., ch. 276, Sec. 12, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1317, Sec. 1, eff. Sept. 1, 1999.

Sec. 142.0201: Registration for Evacuation; Disaster Preparedness

A home and community support services agency shall:

(1) assist clients as necessary with registering for disaster evacuation assistance through 2-1-1 services provided by the Texas Information and Referral Network; and

(2) counsel clients as necessary regarding disaster preparedness.

Comments

Added by Acts 2009, 81st Leg., R.S., Ch. 459 (H.B. 2558), Sec. 1, eff. June 19, 2009.

Subchapter B

Sec. 142.021: Administration of Medication

A person may not administer medication to a client of a home and community support services agency unless the person:

(1) holds a license under state law that authorizes the person to administer medication;

(2) holds a permit issued under Section 142.025 and acts under the delegated authority of a person who holds a license under state law that authorizes the person to administer medication;

(3) administers a medication to a client of a home and community support service agency in accordance with rules of the Texas Board of Nursing that permit delegation of the administration of medication to a person not holding a permit under Section 142.025; or

(4) administers noninjectable medication under circumstances authorized by the memorandum of understanding executed by the department and the Texas Board of Nursing.

Comments

Added by Acts 1990, 71st Leg., 6th C.S., ch. 31, Sec. 3, eff. June 19, 1990. Amended by Acts 1993, 73rd Leg., ch. 800, Sec. 19, eff. Sept. 1, 1993; Acts 1997, 75th Leg., ch. 1191, Sec. 8, eff. Sept. 1, 1997.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 889 (H.B. 2426), Sec. 65, eff. September 1, 2007.

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0410, eff. April 2, 2015.

Sec. 142.022: Exemptions for Nursing Students and Medication Aide Trainees

(a) Sections 142.021 and 142.029 do not apply to:

(1) a graduate nurse holding a temporary permit issued by the Texas Board of Nursing;

(2) a student enrolled in an accredited school of nursing or program for the education of registered nurses who is administering medications as part of the student's clinical experience;

(3) a graduate vocational nurse holding a temporary permit issued by the Texas Board of Nursing;

(4) a student enrolled in an accredited school of vocational nursing or program for the education of vocational nurses who is administering medications as part of the student's clinical experience; or

(5) a trainee in a medication aide training program approved by the department under Section 142.024 who is administering medications as part of the trainee's clinical experience.

(b) The administration of medications by persons exempted under Subdivisions (1) through (4) of Subsection (a) is governed by the terms of the memorandum of understanding executed by the department and the Texas Board of Nursing.

Comments

Added by Acts 1990, 71st Leg., 6th C.S., ch. 31, Sec. 4, eff. June 19, 1990. Amended by Acts 2003, 78th Leg., ch. 553, Sec. 2.009, eff. Feb. 1, 2004.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 889 (H.B. 2426), Sec. 66, eff. September 1, 2007.

Sec. 142.023: Rules for Administration of Medication

The executive commissioner by rule shall establish:

(1) minimum requirements for the issuance, denial, renewal, suspension, emergency suspension, and revocation of a permit to a home health medication aide;

(2) curricula to train a home health medication aide;

(3) minimum standards for the approval of home health medication aide training programs and for rescinding approval;

(4) the acts and practices that are allowed or prohibited to a permit holder; and

(5) minimum standards for on-site supervision of a permit holder by a registered nurse.

Comments

Added by Acts 1990, 71st Leg., 6th C.S., ch. 31, Sec. 3, eff. June 19, 1990. Amended by Acts 1993, 73rd Leg., ch. 800, Sec. 20, eff. Sept. 1, 1993.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0411, eff. April 2, 2015.

Sec. 142.024: Home Health Medication Aide Training Programs

(a) An application for the approval of a home health medication aide training program must be made to the department on a form prescribed by the department and under department rules.

(b) The department shall approve a home health medication aide training program that meets the minimum standards adopted under Section 142.023. The department may review the approval annually.

Comments

Added by Acts 1990, 71st Leg., 6th C.S., ch. 31, Sec. 3, eff. June 19, 1990. Amended by Acts 1993, 73rd Leg., ch. 800, Sec. 21, eff. Sept. 1, 1993.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0412, eff. April 2, 2015.

Sec. 142.025: Issuance and Renewal of Home Health Medication Aide Permit

(a) To be issued or to have renewed a home health medication aide permit, a person shall apply to the department on a form prescribed by the department and under department rules.

(b) The department shall prepare and conduct an examination for the issuance of a permit.

(c) The department shall require a permit holder to satisfactorily complete a continuing education course approved by the department for renewal of the permit.

(d) The department shall issue a permit or renew a permit to an applicant who:

(1) meets the minimum requirements adopted under Section 142.023;

(2) successfully completes the examination or the continuing education requirements; and

(3) pays a nonrefundable application fee specified in department rules.

(e) A permit is valid for one year and is not transferable.

Comments

Added by Acts 1990, 71st Leg., 6th C.S., ch. 31, Sec. 3, eff. June 19, 1990. Amended by Acts 1993, 73rd Leg., ch. 800, Sec. 22, 23, eff. Sept. 1, 1993.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0413, eff. April 2, 2015.

Sec. 142.026: Fees for Issuance and Renewal of Home Health Medication Aide Permit

(a) The executive commissioner by rule shall set the fees in amounts reasonable and necessary to recover the amount projected by the department as required to administer its functions under this subchapter. The fees may not exceed:

(1) $25 for a combined permit application and examination fee; and

(2) $15 for a renewal permit application fee.

(b) Fees received under this section may only be appropriated to the department to administer this subchapter.

Comments

Added by Acts 1990, 71st Leg., 6th C.S., ch. 31, Sec. 3, eff. June 19, 1990. Amended by Acts 1993, 73rd Leg., ch. 800, Sec. 24, eff. Sept. 1, 1993.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0414, eff. April 2, 2015.

Sec. 142.027: Violation of Home Health Medication Aide Permits

(a) For the violation of this subchapter or a rule adopted under this subchapter, the department may:

(1) deny, suspend, revoke, or refuse to renew a permit;

(2) suspend a permit in an emergency; or

(3) rescind training program approval.

(b) Except as provided by Section 142.028, the procedure by which the department takes a disciplinary action and the procedure by which a disciplinary action is appealed are governed by the department's rules for a formal hearing and by Chapter 2001, Government Code.

Comments

Added by Acts 1990, 71st Leg., 6th C.S., ch. 31, Sec. 3, eff. June 19, 1990. Amended by Acts 1993, 73rd Leg., ch. 800, Sec. 25, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 76, Sec. 5.95(49), eff. Sept. 1, 1995.

Sec. 142.028: Emergency Suspension of Home Health Medication Aide Permits

(a) The department shall issue an order to suspend a permit issued under Section 142.025 if the department has reasonable cause to believe that the conduct of the permit holder creates an imminent danger to the public health or safety.

(b) An emergency suspension is effective immediately without a hearing on notice to the permit holder.

(c) If requested in writing by a permit holder whose permit is suspended, the department shall conduct a hearing to continue, modify, or rescind the emergency suspension.

(d) The hearing must be held not earlier than the 10th day or later than the 30th day after the date on which the hearing request is received.

(e) The hearing and an appeal from a disciplinary action related to the hearing are governed by the department's rules for a formal hearing and Chapter 2001, Government Code.

Comments

Added by Acts 1990, 71st Leg., 6th C.S., ch. 31, Sec. 3, eff. June 19, 1990. Amended by Acts 1993, 73rd Leg., ch. 800, Sec. 26, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 76, Sec. 5.95(49), eff. Sept. 1, 1995.

Sec. 142.029: Administration of Medication; Criminal Penalty

(a) A person commits an offense if the person knowingly administers medication to a client of a home and community support services agency and the person is not authorized to administer the medication under Section 142.021 or 142.022.

(b) An offense under this section is a Class B misdemeanor.

Comments

Added by Acts 1990, 71st Leg., 6th C.S., ch. 31, Sec. 3, eff. June 19, 1990. Amended by Acts 1993, 73rd Leg., ch. 800, Sec. 27, eff. Sept. 1, 1993.

Sec. 142.030: Dispensing Dangerous Drugs Or Controlled Substances; Criminal Penalty

(a) A person authorized by this subchapter to administer medication to a client of a home and community support services agency may not dispense dangerous drugs or controlled substances without complying with Subtitle J, Title 3, Occupations Code.

(b) An offense under this section is a Class A misdemeanor.

Comments

Added by Acts 1990, 71st Leg., 6th C.S., ch. 31, Sec. 3, eff. June 19, 1990. Amended by Acts 1993, 73rd Leg., ch. 800, Sec. 28, eff. Sept. 1, 1993; Acts 2001, 77th Leg., ch. 1420, Sec. 14.779, eff. Sept. 1, 2001.

Subchapter C

Sec. 142.041: Definition

In this subchapter, "license holder" means a home and community support services agency licensed under this chapter to provide hospice services.

Comments

Added by Acts 2019, 86th Leg., R.S., Ch. 829 (H.B. 2594), Sec. 1, eff. September 1, 2019.

Sec. 142.042: Policy

(a) A license holder may adopt written policies and procedures related to the disposal of a patient's unused controlled substance prescription drugs on the patient's death or in other circumstances in which disposal is appropriate.

(b) A license holder that adopts policies and procedures under this section shall:

(1) provide a copy of the policies and procedures to the patient and the patient's family;

(2) discuss the policies and procedures with the patient and the patient's family in a language and manner the patient and patient's family understand; and

(3) document in the patient's clinical record that the policies and procedures were provided and discussed under Subdivisions (1) and (2).

Comments

Added by Acts 2019, 86th Leg., R.S., Ch. 829 (H.B. 2594), Sec. 1, eff. September 1, 2019.

Sec. 142.043: Employee Training

(a) This section applies to an employee of a license holder who is a health care professional licensed under Title 3, Occupations Code.

(b) A license holder may provide training to the employees described by Subsection (a) regarding the secure and responsible disposal of controlled substance prescription drugs in a manner that discourages abuse, misuse, or diversion.

Comments

Added by Acts 2019, 86th Leg., R.S., Ch. 829 (H.B. 2594), Sec. 1, eff. September 1, 2019.

Sec. 142.044: Authorized Disposal

(a) If the license holder has complied with Section 142.042(b) with respect to a patient, a health care professional employee who has completed the training under Section 142.043(b) may confiscate and dispose of a patient's controlled substance prescription drug if:

(1) the patient has died;

(2) the drug has expired; or

(3) the patient's physician has given written instructions that the patient should no longer use the drug.

(b) The employee confiscating the controlled substance prescription drug shall dispose of the drug in a manner consistent with recommendations of the United States Food and Drug Administration and the laws of this state.

(c) The disposal of a controlled substance prescription drug under this section must occur at the location at which the drug was confiscated and be witnessed by another person 18 years of age or older.

(d) After disposing of the controlled substance prescription drug, the employee shall document in the patient's record:

(1) the name of the drug;

(2) the dosage of the drug the patient was receiving;

(3) the route of controlled substance prescription drug administration;

(4) the quantity of the controlled substance prescription drug originally dispensed and the quantity of the drug remaining; and

(5) the time, date, and manner of disposal.

(e) An employee shall document in a patient's file if a family member of the patient prevented the confiscation and disposal of a controlled substance prescription drug as authorized under this section.

Comments

Added by Acts 2019, 86th Leg., R.S., Ch. 829 (H.B. 2594), Sec. 1, eff. September 1, 2019.

Chapter 142A

Sec. 142A.0001: Definition

In this chapter, "supportive palliative care" means physician-directed interdisciplinary patient- and family-centered care provided to a patient with a serious illness without regard to the patient's age or terminal prognosis that:

(1) may be provided concurrently with methods of treatment or therapies that seek to cure or minimize the effects of the patient's illness; and

(2) seeks to optimize the quality of life for a patient with a life-threatening or life-limiting illness and the patient's family through various methods, including methods that seek to:

(A) anticipate, prevent, and treat the patient's total suffering related to the patient's physical, emotional, social, and spiritual condition;

(B) address the physical, intellectual, emotional, cultural, social, and spiritual needs of the patient; and

(C) facilitate for the patient regarding treatment options, education, informed consent, and expression of desires.

Comments

Added by Acts 2019, 86th Leg., R.S., Ch. 609 (S.B. 916), Sec. 1, eff. June 10, 2019.

Sec. 142A.0002: Reference in Other Law

Notwithstanding any other law, a reference in this code or other law to palliative care means supportive palliative care.

Comments

Added by Acts 2019, 86th Leg., R.S., Ch. 609 (S.B. 916), Sec. 1, eff. June 10, 2019.

Sec. 142A.0003: Study

(a) The commission shall conduct a study to assess potential improvements to a patient's quality of care and health outcomes and to anticipated cost savings to this state from supporting the use of or providing Medicaid reimbursement to certain Medicaid recipients for supportive palliative care. The study must include an evaluation and comparison of other states that provide Medicaid reimbursement for supportive palliative care.

(b) The Palliative Care Interdisciplinary Advisory Council established under Chapter 118 shall provide to the commission recommendations on the structure of the study, including recommendations on identifying specific populations of Medicaid recipients, variables, and outcomes to measure in the study.

(c) The commission may collaborate with and solicit and accept gifts, grants, and donations from any public or private source for the purpose of funding the study.

(d) Not later than September 1, 2022, the commission shall provide to the Palliative Care Interdisciplinary Advisory Council the findings of the study. Not later than October 1, 2022, the advisory council shall include the findings of the study in the report required under Section 118.010.

(e) This section expires September 1, 2023.

Comments

For expiration of this section, see Subsection (e).

Added by Acts 2019, 86th Leg., R.S., Ch. 609 (S.B. 916), Sec. 1, eff. June 10, 2019.

Chapter 143

Sec. 143.001: Definitions

In this chapter:

(1) "Employer" means a person who, directly, indirectly, or through an employee, agent, independent contractor, or any other person, delivers to another person materials for articles that are:

(A) to be manufactured in a home and returned to the employer; and

(B) not for the personal use of the employer or a member of the employer's family.

(2) "Home" means a room, house, apartment, or other premises, whichever is most extensive, that is used in whole or in part as a dwelling.

(3) "Industrial homework" means the manufacture, in a home, of articles for an employer.

(4) "Manufacture" includes preparation, alteration, repair, or finishing, in whole or in part, for profit or compensation.

Comments

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 143.002: Employer's Permit Required

(a) An employer may not deliver materials for industrial homework to any person in this state without an employer's permit issued by the board.

(b) If the employer is not a resident of this state, the employer's agent must hold the employer's permit.

Comments

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 143.003: Employer's Permit Application and Issuance; Term

(a) An applicant must apply for an employer's permit in the form prescribed by board rule.

(b) The application must be accompanied by a $50 permit fee.

(c) An employer's permit is valid for one year from the date of issuance.

Comments

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 143.004: Suspension Or Revocation of Employer's Permit

The board may suspend or revoke an employer's permit if the board finds that the employer has violated this chapter or has failed to comply with a provision of the permit.

Comments

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 143.005: Homeworker's Certificate Required

(a) A person may not engage in industrial homework without a homeworker's certificate issued by the board.

(b) A homeworker's certificate is valid only for work performed by the certificate holder in the certificate holder's home.

Comments

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 143.006: Homeworker's Certificate Application and Issuance; Term

(a) An applicant must apply for a homeworker's certificate in the form prescribed by board rule. Each applicant must present a health certificate or other evidence of good health as required by the board.

(b) The application must be accompanied by a fee in an amount set by the board, but not to exceed 50 cents.

(c) A homeworker's certificate is valid for one year from the date of issuance.

(d) The board may not issue a homeworker's certificate to a person who:

(1) is younger than 15 years of age;

(2) suffers from a communicable disease; or

(3) lives in a home that is not clean, sanitary, and free from communicable diseases.

Comments

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 143.007: Suspension Or Revocation of Homeworker's Certificate

The board may suspend or revoke a homeworker's certificate if the board finds that the industrial homeworker:

(1) is performing industrial homework in violation of the conditions under which the certificate was issued or in violation of this chapter; or

(2) has allowed a person who does not hold a homeworker's certificate to assist the homeworker in performing the industrial homework.

Comments

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 143.008: Prohibition on Issuance of Permit Or Certificate

The board may not issue an employer's permit or a homeworker's certificate to authorize industrial homework or the delivery of materials for industrial homework if the board determines that the industrial homework:

(1) is injurious to the health or welfare of industrial homeworkers in that industry or to the public; or

(2) makes it unduly difficult to maintain or enforce health standards established by law or rule for factory workers in that industry.

Comments

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 143.009: Order Prohibiting Certain Industrial Homework; Hearing

(a) The board by order shall prohibit industrial homework in a certain industry and shall require employers in that industry to stop delivering in this state any materials for that industrial homework if the board determines, after investigation, that the industrial homework may not be continued in that industry without injuring the health and welfare of industrial homeworkers in that industry or of the public.

(b) Before adopting an order under Subsection (a), the board must hold a public hearing at which an opportunity to be heard must be afforded to any person having an interest in the subject matter of the hearing, including:

(1) an employer or a representative of employers; or

(2) an industrial homeworker or a representative of industrial homeworkers.

(c) The board must give public notice of the hearing:

(1) not later than the 30th day before the date on which the hearing is held; and

(2) in a manner determined by the board.

(d) The board shall hold the hearing in the place the board determines to be most convenient to the employers and industrial homeworkers affected by the order.

(e) The board shall determine the effective date of the order, which may not be less than 90 days after the date of its adoption.

(f) After an order becomes effective, a person holding an employer's permit may not deliver materials for the industrial homework prohibited by the order.

Comments

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 143.010: General Powers and Duties of Board

(a) The board may adopt rules necessary to implement this chapter and shall enforce this chapter.

(b) The board or the board's representative shall conduct all inspections and investigations necessary to enforce this chapter.

(c) The board or the board's representative may:

(1) administer oaths;

(2) take affidavits;

(3) issue subpoenas;

(4) compel the attendance of witnesses and the production of books, contracts, documents, or any other evidence;

(5) hear testimony under oath; and

(6) take depositions of witnesses who reside in this state or outside this state in the manner provided by law for similar depositions in civil actions in a justice court.

(d) A subpoena or commission to take testimony shall be issued under the seal of the board.

Comments

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 143.011: Prohibition on Certain Deliveries By Employer

An employer may not deliver or cause to be delivered any materials for industrial homework to a person who does not possess an employer's permit or a homeworker's certificate issued in accordance with this chapter.

Comments

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 143.012: Record Requirements; Investigation

(a) A person who holds an employer's permit may not deliver or cause to be delivered or received materials for industrial homework or receive an article as a result of industrial homework unless the employer keeps a record of:

(1) the persons engaged in industrial homework on materials delivered by that employer;

(2) the places where those persons work;

(3) the articles that those persons have manufactured;

(4) the agents or contractors to whom the employer has delivered materials for industrial homework; and

(5) the persons from whom the employer has received materials for industrial homework.

(b) The employer shall maintain and report the information in the manner prescribed by board rule and on forms that the board may provide.

(c) The information and records required by this section may be used by the board only to enforce this chapter and may not be published or disclosed except to representatives of the board enforcing this chapter.

Comments

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 143.013: Label Requirement

(a) An employer may not deliver or cause to be delivered materials for industrial homework unless there has been conspicuously affixed to those materials a label or other identifying trademark that bears the employer's name and address printed or written legibly in English.

(b) The label must be affixed to the package or container in which the materials are delivered or are to be kept if it is impossible to affix the label to the materials.

Comments

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 143.014: Disposition of Unlawfully Manufactured Articles

(a) The board may remove from a home articles that are being manufactured in the home in violation of this chapter and materials used to manufacture those articles.

(b) The board shall give notice of the removal by registered mail to the person whose name and address are affixed to the materials as provided by Section 143.013.

(c) The board may retain the materials or articles until they are claimed by the employer, and if they are not claimed before the 31st day after the date on which the notice is sent, the board may destroy or otherwise dispose of the materials or articles.

Comments

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 143.015: Criminal Penalty

(a) An employer commits an offense if the employer:

(1) violates Section 143.002;

(2) refuses to allow the board or its representative to enter the employer's place of business to conduct an investigation authorized by this chapter;

(3) refuses to permit the board or its representative to inspect or copy the employer's records or other documents related to the enforcement of this chapter;

(4) makes an oral statement that the employer is required by the commissioner to make and the statement made is false; or

(5) otherwise violates this chapter or any provision of the employer's permit.

(b) A person commits an offense if the person violates a rule adopted by the board.

(c) An offense under this section is a misdemeanor punishable by a fine of not less than $25 or more than $200, imprisonment for not less than 30 days or more than 60 days, or both.

Comments

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Chapter 144

Subchapter A

Sec. 144.002: Definitions

In this chapter:

(1) "Dead animal" means the whole or substantially whole carcass of a dead or fallen domestic animal, or domesticated wild animal, that was not slaughtered for human consumption.

(2) "Dead animal hauler" means a person who collects and disposes of dead animals for commercial purposes.

(3) "Disposal" means the burying, burning, cooking, processing, or rendering of dead animals or of renderable raw materials.

(4) "Employee" means a person who:

(A) is a legal employee of a rendering establishment; and

(B) handles or operates rendering equipment, utensils, containers, vehicles, or packaging materials owned or leased by the rendering establishment.

(5) "Nuisance" means any situation or condition that constitutes a nuisance under Section 341.011.

(6) "Person" means an individual, firm, partnership, association, corporation, trust, company, or organization, and includes an agent, officer, or employee of that individual or entity.

(7) "Processing" means an operation or combination of operations through which materials derived from a dead animal or renderable raw material sources are:

(A) prepared for disposal at a rendering establishment;

(B) stored; or

(C) treated for commercial use or disposition, other than as food for human consumption.

(8) "Related station" means an operation or facility that is necessary or incidental to the operation of a rendering establishment and that is operated or maintained separately from the rendering establishment.

(9) "Rendering business" means the collection, transportation, disposal, or storage of dead animals or renderable raw materials for commercial purposes at locations where dead animals or renderable raw materials are rendered, boiled, processed, stored, transferred, or otherwise prepared, either as a separate business or in connection with any other established business.

(10) "Rendering establishment" means an establishment or part of an establishment, a plant, or any other premises at which dead animals or renderable raw materials are rendered, boiled, processed, or otherwise prepared to obtain a product for commercial use or disposition, other than as food for human consumption. The term includes all other operations and facilities that are necessary or incidental to the establishment.

(11) "Renderable raw material" means any unprocessed or partially processed material of animal or plant origin, other than a dead animal, that is processed by rendering establishments. The term includes:

(A) animals, poultry, or fish slaughtered or processed for human consumption but that are unsuitable for that use;

(B) the inedible products and by-products of animals, poultry, or fish slaughtered or processed for human consumption;

(C) parts from dead animals;

(D) whole or partial carcasses of dead poultry or fish;

(E) waste cooking greases; and

(F) recyclable cooking oil.

(12) "Recyclable cooking oil" means any unprocessed or partially processed grease, fat, or oil previously used in the cooking or preparation of food for human consumption and intended for recycling by being used or reused as:

(A) an ingredient in a process to make a product; or

(B) an effective substitute for a commercial product.

(13) "Renderable raw material hauler" means a person who collects or transports renderable raw materials for commercial purposes.

(14) "Transfer station" means a facility at which renderable raw materials are transferred from one conveyance to another.

(15) "Waste cooking grease" means any unprocessed or partially processed grease, fat, or oil previously used in the cooking or preparation of food for human consumption and no longer suitable for such use.

Comments

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1999, 76th Leg., ch. 485, Sec. 1, eff. Sept. 1, 1999.

Sec. 144.003: Construction of Other Laws

(a) This chapter does not affect:

(1) Chapter 141, Agriculture Code; or

(2) any state law or a rule of any public regulatory body that relates to the control of water or air pollution.

(b) This chapter does not affect a municipality's power to regulate by ordinance rendering businesses within the boundaries of the municipality. However, each rendering establishment, related station, transfer station, dead animal hauler, or renderable raw material hauler subject to a municipal ordinance shall comply with this chapter.

Comments

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1999, 76th Leg., ch. 485, Sec. 2, eff. Sept. 1, 1999.

Subchapter C

Sec. 144.021: General Requirements for Rendering Operations

Each rendering establishment, related station, transfer station, dead animal hauler, or renderable raw material hauler shall adopt operating procedures that:

(1) provide for the sanitary performance of rendering operations and processes;

(2) prevent the spread of infectious or noxious materials; and

(3) ensure that finished products are free from disease-producing organisms.

Comments

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1999, 76th Leg., ch. 485, Sec. 6, eff. Sept. 1, 1999.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0416, eff. April 2, 2015.

Acts 2015, 84th Leg., R.S., Ch. 838 (S.B. 202), Sec. 3.005, eff. September 1, 2015.

Sec. 144.022: Records

(a) Each rendering establishment, related station, or dead animal hauler shall have a dead animal log that meets the requirements prescribed by department rule. The name of the rendering establishment, related station, or dead animal hauler must be on the front of the log.

(b) A rendering establishment, related station, or dead animal hauler that receives a dead animal shall enter the following information in the log:

(1) the date and time of the pickup of the dead animal;

(2) the name of the driver of the collection vehicle;

(3) a description of the dead animal;

(4) the location of the dead animal, including the county; and

(5) the owner of the dead animal, if known.

(c) The rendering establishment, related station, or dead animal hauler shall also keep a record in the log, or in an appendix to the log, of the general route followed in making the collection.

(d) The log is subject to inspection at all reasonable times by the department or a person with written authorization from the department.

(e) This section does not apply to a renderable raw material hauler.

Comments

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0417, eff. April 2, 2015.

Acts 2015, 84th Leg., R.S., Ch. 838 (S.B. 202), Sec. 3.006, eff. September 1, 2015.

Sec. 144.023: Vehicles

(a) A vehicle used to transport dead animals or renderable raw materials to or from a rendering establishment must:

(1) be leak-proof and maintained in a manner that precludes the creation of a nuisance; and

(2) comply with each applicable requirement for operation on the public roads or highways, including applicable insurance requirements and gross vehicle weight limitations.

(b) A collection vehicle shall be held to a minimum number of stops, and the stops shall be brief, while traveling to the establishment with dead animals or renderable raw materials. Each collection vehicle shall be washed and sanitized at the end of each day's operations.

(c) A truck bed used to transport dead animals or renderable raw materials shall be thoroughly washed and sanitized before use for the transport of finished rendered products. A truck bed used to transport dead animals or renderable raw materials to a rendering establishment, or to transfer finished rendered products from an establishment, shall, before being used to transport any product intended for human consumption, be thoroughly sanitized with a bactericidal agent that is safe for use in a rendering establishment. A truck bed may not be used to transport dead animals or renderable raw materials at the same time the truck bed or any part of the truck bed is used to transport any product intended for human consumption, notwithstanding the manner in which part of the truck bed is sealed or separated from the remainder of the bed.

(d) Repealed by Acts 2015, 84th Leg., R.S., Ch. 838 , Sec. 3.030(3), eff. September 1, 2015.

(e) Repealed by Acts 2015, 84th Leg., R.S., Ch. 838 , Sec. 3.030(3), eff. September 1, 2015.

Comments

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1999, 76th Leg., ch. 485, Sec. 7, eff. Sept. 1, 1999.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 838 (S.B. 202), Sec. 3.007, eff. September 1, 2015.

Acts 2015, 84th Leg., R.S., Ch. 838 (S.B. 202), Sec. 3.008, eff. September 1, 2015.

Acts 2015, 84th Leg., R.S., Ch. 838 (S.B. 202), Sec. 3.030(3), eff. September 1, 2015.

Sec. 144.024: Treatment of Dead Animals Or Renderable Raw Materials

(a) Dead animals or renderable raw materials received by a rendering establishment shall either be immediately placed in the rendering process or stored for not more than 48 hours in a manner that precludes the creation of a nuisance or a malodorous condition.

(b) Cooking or other dehydration operations shall be conducted in a manner that prevents the survival of disease-producing organisms in the processed material. Adequate and suitable means for the treatment of cooking vapors shall be provided and operated in a manner that controls odors.

(c) All cooked or finished materials shall be kept apart from areas where dead animals or renderable raw materials are kept in a manner that prevents contamination.

(d) If a person intends to use oil or grease as an ingredient in livestock feed or in topical cosmetic products, the person may not contaminate or commingle waste cooking greases or recyclable cooking oils with grease trap waste, grit trap waste, or any other substance that would render the greases or oils harmful or otherwise unsuitable for use as an ingredient in livestock feed or in topical cosmetic products.

Comments

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1999, 76th Leg., ch. 485, Sec. 8, eff. Sept. 1, 1999.

Sec. 144.025: Floors

(a) During operations, the floors in processing areas shall be kept reasonably free from processing wastes, including:

(1) blood;

(2) manure;

(3) scraps;

(4) grease;

(5) water;

(6) dirt; and

(7) litter.

(b) The floors shall be thoroughly cleaned at the end of each day's operations.

Comments

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 144.026: Waste Treatment

(a) Waste shall be handled and disposed of in a manner that prevents contamination of:

(1) the water supply;

(2) processing equipment;

(3) packaging materials; and

(4) finished products.

(b) Liquid waste shall be treated in the manner required by the department and disposed of in a manner approved by department rule.

Comments

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0418, eff. April 2, 2015.

Sec. 144.027: Employee Facilities

(a) Adequate and convenient toilet facilities for employees shall be located in an establishment.

(b) An adequate number of lavatory facilities for employees to wash their hands shall be provided at convenient locations in the establishment and must be supplied with warm water under pressure and with soap or another detergent.

(c) A drinking water supply shall be provided at convenient locations in the establishment for the use of employees.

Comments

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 838 (S.B. 202), Sec. 3.009, eff. September 1, 2015.

Sec. 144.028: Hygiene Requirements

A person engaging in rendering processes or operations shall wear washable garments and accessories and conform to hygienic practices.

Comments

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 144.029: Sanitary Conditions Required

(a) The premises of a rendering establishment shall be kept clean and neat, in good repair, and reasonably free from:

(1) undue collection of refuse;

(2) waste materials;

(3) rodent infestation;

(4) insect breeding places;

(5) standing water; and

(6) other objectionable conditions.

(b) Equipment and utensils shall be provided as necessary for the rendering establishment to conduct operations in a sanitary manner.

(c) Rodents, roaches, and other vermin shall be controlled.

(d) Hide storage facilities shall be in closed areas separate from all other areas.

Comments

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 144.030: Collection Container Requirements

(a) A container in which dead animals or renderable raw materials are accumulated by a producer at collecting points for pickup by a dead animal hauler or renderable raw material hauler must remain on the premises at each collecting point.

(b) The owner of the containers shall maintain the containers in a leak-proof and sanitary condition and shall replace them as necessary.

(c) The transportation, delivery, transfer, loading, and off-loading of dead animals and renderable raw materials shall be performed in a manner that prevents the release of animal parts and spills or leaks of renderable raw materials from containers. A release of dead animal parts or spill or leak of renderable raw materials shall immediately be cleaned up and reported in the log required by Section 144.022.

Comments

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1999, 76th Leg., ch. 485, Sec. 9, eff. Sept. 1, 1999.

Subchapter G

Sec. 144.078: Injunction

(a) The attorney general may bring an action in any district court of this state that has jurisdiction and venue for an injunction to compel compliance with this chapter or to restrain any actual or threatened violation of this chapter.

(b) The court may enter an order or judgment to award a preliminary or final injunction as it considers appropriate.

(c) Repealed by Acts 2015, 84th Leg., R.S., Ch. 838 , Sec. 3.030(15), eff. September 1, 2015.

Comments

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1999, 76th Leg., ch. 485, Sec. 21, eff. Sept. 1, 1999.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 838 (S.B. 202), Sec. 3.010, eff. September 1, 2015.

Acts 2015, 84th Leg., R.S., Ch. 838 (S.B. 202), Sec. 3.030(15), eff. September 1, 2015.

Sec. 144.079: Prohibited Acts

(a) A person may not receive, hold, slaughter, butcher, or otherwise process any animal as food for human consumption in a building or compartmented area of a building used as a rendering establishment or related station.

(b) A person may not steal, misappropriate, contaminate, or damage recyclable cooking oil or containers of recyclable cooking oil.

(c) A renderer, hauler, or any other person may not knowingly take possession of stolen recyclable cooking oil.

Comments

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1999, 76th Leg., ch. 485, Sec. 22, eff. Sept. 1, 1999.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 838 (S.B. 202), Sec. 3.011, eff. September 1, 2015.

Chapter 145

Sec. 145.002: Definitions

In this chapter:

(1) Repealed by Acts 2015, 84th Leg., R.S., Ch. 838 , Sec. 3.030(23), eff. September 1, 2015.

(2) "Fitzpatrick scale" means the following scale for classifying a skin type, based on the skin's reaction to the first 10 to 45 minutes of sun exposure after the winter season:

Skin Type Sunburning and Tanning History
1 Always burns easily; never tans
2 Always burns easily; tans minimally
3 Burns moderately; tans gradually
4 Burns minimally; always tans well
5 Rarely burns; tans profusely
6 Never burns; deeply pigmented

(3) "Health authority" has the meaning assigned by Section 121.021.

(4) "Operator" means an owner of a tanning facility or an agent of an owner of a tanning facility.

(5) "Person" means an individual, partnership, corporation, or association.

(6) "Phototherapy device" means a piece of equipment that emits ultraviolet radiation and is used by a health care professional in the treatment of disease.

(7) "Tanning device" means a device under Section 431.002 and includes any equipment, including a sunlamp, tanning booth, and tanning bed, that emits electromagnetic radiation with wavelengths in the air between 200 and 400 nanometers and is used for the tanning of human skin. The term also includes any accompanying equipment, including protective eyewear, timers, and handrails.

(8) "Tanning facility" means a business that provides persons access to or use of tanning devices.

Comments

Added by Acts 1991, 72nd Leg., ch. 14, Sec. 49, eff. Sept. 1, 1991. Amended by Acts 1995, 74th Leg., ch. 684, Sec. 1, eff. June 15, 1995; Acts 2001, 77th Leg., ch. 473, Sec. 1, eff. Sept. 1, 2001.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 838 (S.B. 202), Sec. 3.030(23), eff. September 1, 2015.

Sec. 145.003: Exemption

This chapter does not apply to a phototherapy device used by or under the supervision of a licensed physician trained in the use of phototherapy devices.

Comments

Added by Acts 1991, 72nd Leg., ch. 14, Sec. 49, eff. Sept. 1, 1991.

Sec. 145.004: Compliance with Law

(a) A tanning device used by a tanning facility must comply with all applicable federal and state laws and regulations.

(b) Repealed by Acts 2015, 84th Leg., R.S., Ch. 838 , Sec. 3.030(24), eff. September 1, 2015.

Comments

Added by Acts 1991, 72nd Leg., ch. 14, Sec. 49, eff. Sept. 1, 1991. Amended by Acts 1995, 74th Leg., ch. 684, Sec. 2, eff. June 15, 1995.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0431, eff. April 2, 2015.

Acts 2015, 84th Leg., R.S., Ch. 838 (S.B. 202), Sec. 3.030(24), eff. September 1, 2015.

Sec. 145.005: Customer Notice; Liability

(a) A tanning facility shall give each customer a written statement warning that:

(1) failure to use the eye protection provided to the customer by the tanning facility may result in damage to the eyes;

(2) overexposure to ultraviolet light causes burns;

(3) repeated exposure may result in premature aging of the skin and skin cancer;

(4) abnormal skin sensitivity or burning may be caused by reactions of ultraviolet light to certain:

(A) foods;

(B) cosmetics; or

(C) medications, including:

(i) tranquilizers;

(ii) diuretics;

(iii) antibiotics;

(iv) high blood pressure medicines; or

(v) birth control pills;

(5) any person taking a prescription or over-the-counter drug should consult a physician before using a tanning device;

(6) a person with skin that always burns easily and never tans should avoid a tanning device; and

(7) a person with a family or past medical history of skin cancer should avoid a tanning device.

(b) Compliance with the notice requirement does not affect the liability of a tanning facility operator or a manufacturer of a tanning device.

Comments

Added by Acts 1991, 72nd Leg., ch. 14, Sec. 49, eff. Sept. 1, 1991. Amended by Acts 2001, 77th Leg., ch. 473, Sec. 2, eff. Sept. 1, 2001.

Sec. 145.006: Warning Signs

(a) A tanning facility shall post a warning sign in a conspicuous location where it is readily visible by persons entering the establishment. The sign must have dimensions of at least 11 inches by 17 inches and must contain the following wording:

Repeated exposure to ultraviolet radiation may cause chronic sun damage characterized by wrinkling, dryness, fragility, bruising of the skin, and skin cancer.

DANGER: ULTRAVIOLET RADIATION

Failure to use protective eyewear may result in severe burns or permanent injury to the eyes.

Medications or cosmetics may increase your sensitivity to ultraviolet radiation. Consult a physician before using a sunlamp if you are using medications, have a history of skin problems, or believe you are especially sensitive to sunlight. Pregnant women or women taking oral contraceptives who use this product may develop discolored skin.

A tanning facility operator who violates a law relating to the operation of a tanning facility is subject to a civil or criminal penalty. If you suspect a violation, please contact your local law enforcement authority or local health authority.

IF YOU DO NOT TAN IN THE SUN, YOU ARE UNLIKELY TO TAN FROM USE OF AN ULTRAVIOLET LAMP OR SUNLAMP.

(b) A tanning facility operator shall also post a warning sign at each tanning device in a conspicuous location that is readily visible to a person about to use the device. The sign must have dimensions of at least 11 inches by 17 inches and must contain the following wording:

DANGER: ULTRAVIOLET RADIATION

1. Follow the manufacturer's instructions for use of this device.

2. Avoid too frequent or lengthy exposure. As with natural sunlight, exposure can cause serious eye and skin injuries and allergic reactions. Repeated exposure may cause skin cancer.

3. Wear protective eyewear. Failure to use protective eyewear may result in severe burns or permanent damage to the eyes.

4. Do not sunbathe before or after exposure to ultraviolet radiation from sunlamps.

5. Medications or cosmetics may increase your sensitivity to ultraviolet radiation. Consult a physician before using a sunlamp if you are using medication, have a history of skin problems, or believe you are especially sensitive to sunlight. Pregnant women or women using oral contraceptives who use this product may develop discolored skin.

A tanning facility operator who violates a law relating to the operation of a tanning facility is subject to a civil or criminal penalty. If you suspect a violation, please contact your local law enforcement authority or local health authority.

IF YOU DO NOT TAN IN THE SUN, YOU ARE UNLIKELY TO TAN FROM USE OF THIS DEVICE.

(c) Repealed by Acts 2015, 84th Leg., R.S., Ch. 838 (S.B. 202), Sec. 3.030(25), eff. September 1, 2015.

Comments

Added by Acts 1991, 72nd Leg., ch. 14, Sec. 49, eff. Sept. 1, 1991. Amended by Acts 1995, 74th Leg., ch. 684, Sec. 3, eff. June 15, 1995; Acts 2001, 77th Leg., ch. 473, Sec. 3, eff. Sept. 1, 2001.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0432, eff. April 2, 2015.

Acts 2015, 84th Leg., R.S., Ch. 838 (S.B. 202), Sec. 3.012, eff. September 1, 2015.

Acts 2015, 84th Leg., R.S., Ch. 838 (S.B. 202), Sec. 3.030(25), eff. September 1, 2015.

Sec. 145.007: Prohibited Claims About Safety

A tanning facility operator may not claim or distribute promotional materials that claim that using a tanning device is safe or free from risk or that using a tanning device will result in medical or health benefits.

Comments

Added by Acts 1991, 72nd Leg., ch. 14, Sec. 49, eff. Sept. 1, 1991. Amended by Acts 1995, 74th Leg., ch. 684, Sec. 4, eff. June 15, 1995.

Sec. 145.008: Operational Requirements

(a) A tanning facility shall have an operator present during operating hours. The operator must:

(1) be sufficiently knowledgeable in the correct operation of the tanning devices used at the facility;

(2) instruct, inform, and assist each customer in the proper use of the tanning devices;

(3) complete and maintain records required by this chapter; and

(4) explain or otherwise inform each customer initially using the tanning facility of:

(A) the potential hazards of and protective measures necessary for ultraviolet radiation;

(B) the requirement that protective eyewear be worn while using a tanning device;

(C) the possibility of photosensitivity or of a photoallergic reaction to certain drugs, medicine, or other agents when a person is subjected to the sun or ultraviolet radiation;

(D) the correlation between skin type and exposure time;

(E) the maximum exposure time to the facility's devices;

(F) the biological process of tanning; and

(G) the dangers of and the necessity to avoid overexposure to ultraviolet radiation.

(b) Before each use of a tanning device, the operator shall provide with each device clean and properly sanitized protective eyewear that protects the eyes from ultraviolet radiation and allows adequate vision to maintain balance. The protective eyewear shall be located in the immediate area of each tanning device and shall be provided without charge to each user of a tanning device. The operator may not allow a person to use a tanning device if that person does not use protective eyewear that meets the requirements of the United States Food and Drug Administration. The operator also shall show each customer how to use suitable physical aids, such as handrails and markings on the floor, to maintain proper exposure distance as recommended by the manufacturer of the tanning device.

(c) The tanning facility operator shall clean and properly sanitize the body contact surfaces of a tanning device after each use of the tanning device.

(d) The tanning facility shall use a timer with an accuracy of at least plus or minus 10 percent of the maximum timer interval of the tanning device. The operator shall limit the exposure time of a customer on a tanning device to the maximum exposure time recommended by the manufacturer. A timer shall be located so that a customer cannot set or reset the customer's exposure time. The operator shall control the temperature of the customer contact surfaces of a tanning device and the surrounding area so that it may not exceed 100 degrees Fahrenheit.

(e) Before a customer uses a tanning facility's tanning device for the first time and each time a person executes or renews a contract to use a tanning facility, the person must provide photo identification and sign a written statement acknowledging that the person has read and understood the required warnings before using the device and agrees to use protective eyewear.

(f) To ensure the proper operation of the tanning equipment, a tanning facility may not allow a person younger than 18 years of age to use a tanning device.

(g) Repealed by Acts 2013, 83rd Leg., R.S., Ch. 1381, Sec. 2, eff. September 1, 2013.

(h) When a tanning device is in use by a person, another person may not be allowed in the area of the tanning device.

(i) A record of each customer using a tanning device shall be maintained at the tanning facility at least until the third anniversary of the date of the customer's last use of a tanning device. The record shall include:

(1) the date and time of the customer's use of a tanning device;

(2) the length of time the tanning device was used;

(3) any injury or illness resulting from the use of a tanning device;

(4) any written informed consent statement required to be signed under Subsection (e);

(5) the customer's skin type, as determined by the customer by using the Fitzpatrick scale for classifying a skin type;

(6) whether the customer has a family history of skin cancer; and

(7) whether the customer has a past medical history of skin cancer.

(j) An operator shall keep an incident log at each tanning facility. The log shall be maintained at the tanning facility at least until the third anniversary of the date of an incident. The log shall include each:

(1) alleged injury;

(2) use of a tanning device by a customer not wearing protective eyewear;

(3) mechanical problem with a tanning device; and

(4) customer complaint.

(k) Repealed by Acts 2015, 84th Leg., R.S., Ch. 838 , Sec. 3.030(26), eff. September 1, 2015.

Comments

Added by Acts 1991, 72nd Leg., ch. 14, Sec. 49, eff. Sept. 1, 1991. Amended by Acts 1995, 74th Leg., ch. 684, Sec. 5, eff. June 15, 1995; Acts 2001, 77th Leg., ch. 473, Sec. 4, eff. Sept. 1, 2001.

Amended by:

Acts 2009, 81st Leg., R.S., Ch. 626 (H.B. 1310), Sec. 1, eff. January 1, 2010.

Acts 2013, 83rd Leg., R.S., Ch. 1381 (S.B. 329), Sec. 1, eff. September 1, 2013.

Acts 2013, 83rd Leg., R.S., Ch. 1381 (S.B. 329), Sec. 2, eff. September 1, 2013.

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0433, eff. April 2, 2015.

Acts 2015, 84th Leg., R.S., Ch. 838 (S.B. 202), Sec. 3.013, eff. September 1, 2015.

Acts 2015, 84th Leg., R.S., Ch. 838 (S.B. 202), Sec. 3.030(26), eff. September 1, 2015.

Sec. 145.0096: Certain Advertising Prohibited

(a) This section applies only to a business that:

(1) is operated under a license or permit as a sexually oriented business issued in accordance with Section 243.007, Local Government Code; or

(2) offers, as its primary business, a service or the sale, rental, or exhibition of a device or other item that is intended to provide sexual stimulation or sexual gratification to a customer.

(a-1) A business to which this section applies may not use the word "tan" or "tanning" in a sign or any other form of advertising.

(b) A person commits an offense if the person violates Subsection (a-1). Except as provided by Subsection (c), an offense under this subsection is a Class C misdemeanor.

(c) If it is shown on the trial of an offense under Subsection (b) that the person has previously been convicted of an offense under that subsection, the offense is a Class A misdemeanor.

Comments

Added by Acts 1995, 74th Leg., ch. 684, Sec. 7, eff. June 15, 1995.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 838 (S.B. 202), Sec. 3.014, eff. September 1, 2015.

Sec. 145.011: Access to Records

(a) Repealed by Acts 2015, 84th Leg., R.S., Ch. 838 , Sec. 3.030(30), eff. September 1, 2015.

(b) Repealed by Acts 2015, 84th Leg., R.S., Ch. 838 , Sec. 3.030(30), eff. September 1, 2015.

(c) A person who is required to maintain records under this chapter or a person in charge of the custody of those records shall, at the request of a health authority, permit the health authority access to copy or verify the records at reasonable times.

Comments

Added by Acts 1991, 72nd Leg., ch. 14, Sec. 49, eff. Sept. 1, 1991. Amended by Acts 1995, 74th Leg., ch. 684, Sec. 9, eff. June 15, 1995.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0436, eff. April 2, 2015.

Acts 2015, 84th Leg., R.S., Ch. 838 (S.B. 202), Sec. 3.015, eff. September 1, 2015.

Acts 2015, 84th Leg., R.S., Ch. 838 (S.B. 202), Sec. 3.016, eff. September 1, 2015.

Acts 2015, 84th Leg., R.S., Ch. 838 (S.B. 202), Sec. 3.030(30), eff. September 1, 2015.

Sec. 145.0121: Civil Penalty; Injunction

(a) If it appears that a person has violated or is violating this chapter, the attorney general, or the district, county, or municipal attorney in the jurisdiction where the violation is alleged to have occurred or may occur, may institute a civil suit for:

(1) an order enjoining the violation;

(2) a permanent or temporary injunction, a temporary restraining order, or other appropriate remedy;

(3) the assessment and recovery of a civil penalty; or

(4) both injunctive relief and a civil penalty.

(b) A civil penalty may not exceed $25,000 a day for each violation. Each day the violation occurs constitutes a separate violation for the purposes of the assessment of a civil penalty.

(c) In determining the amount of the civil penalty, the court hearing the matter shall consider:

(1) the person's history of previous violations;

(2) the seriousness of the violation;

(3) the hazard to the health and safety of the public;

(4) the demonstrated good faith of the person charged; and

(5) any other matter as justice may require.

(d) Venue for a suit brought under this section is the municipality or county in which the violation occurred or in Travis County.

(e) A civil penalty recovered in a suit instituted by a local government under this chapter shall be paid to the local government.

(f) The attorney general may recover reasonable expenses incurred in obtaining injunctive relief or a civil penalty under this section, including investigation and court costs, reasonable attorney's fees, witness fees, and other expenses. The expenses recovered by the attorney general shall be used by the attorney general.

Comments

Added by Acts 1995, 74th Leg., ch. 684, Sec. 11, eff. June 15, 1995.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0438, eff. April 2, 2015.

Acts 2015, 84th Leg., R.S., Ch. 838 (S.B. 202), Sec. 3.017, eff. September 1, 2015.

Sec. 145.013: Criminal Penalty

(a) A person, other than a customer, commits an offense if the person violates this chapter.

(b) An offense under this chapter is a Class A misdemeanor.

Comments

Added by Acts 1991, 72nd Leg., ch. 14, Sec. 49, eff. Sept. 1, 1991. Amended by Acts 1995, 74th Leg., ch. 684, Sec. 12, eff. June 15, 1995.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 838 (S.B. 202), Sec. 3.018, eff. September 1, 2015.

Sec. 145.016: Disclosure of Record Prohibited; Exception

(a) Except as provided by Subsection (b), an operator or other person may not disclose a customer record required by Section 145.008(i).

(b) An operator or other person may disclose a customer record:

(1) if the customer, or a person authorized to act on behalf of the customer, requests the record;

(2) if a health authority requests the record under Section 145.011;

(3) if the customer consents in writing to the disclosure to another person;

(4) in a criminal proceeding in which the customer is a victim, witness, or defendant;

(5) if the record is requested in a criminal or civil proceeding by court order or subpoena; or

(6) as otherwise required by law.

Comments

Added by Acts 2001, 77th Leg., ch. 473, Sec. 6, eff. Sept. 1, 2001.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 838 (S.B. 202), Sec. 3.019, eff. September 1, 2015.

Chapter 146

Sec. 146.001: Definitions

In this chapter:

(1) "Body piercing" means the creation of an opening in an individual's body, other than in an individual's earlobe, to insert jewelry or another decoration.

(1-a) "Body piercer" means a person who performs body piercing.

(2) "Body piercing studio" means a facility in which body piercing is performed.

(3) "Tattoo" means the practice of producing an indelible mark or figure on the human body by scarring or inserting a pigment under the skin using needles, scalpels, or other related equipment. The term includes the application of permanent cosmetics.

(4) "Tattooist" means a person who performs tattooing.

(5) "Tattoo studio" means an establishment or facility in which tattooing is performed.

(6) "Temporary location" means a fixed location at which an individual operator performs tattooing or body piercing for a specified period of not more than seven days in conjunction with a single event or celebration, where the primary function of the event or celebration is tattooing or body piercing.

Comments

Added by Acts 1993, 73rd Leg., ch. 580, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 936, Sec. 2, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 516, Sec. 2, eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 1226, Sec. 1, eff. Sept. 1, 2003.

Sec. 146.002: License Required

(a) A person may not conduct, operate, or maintain a tattoo studio unless the person holds a license issued by the department to operate the tattoo studio. Except as provided by Section 146.0025, a person may not conduct, operate, or maintain a body piercing studio unless the person holds a license issued by the department to operate the body piercing studio.

(b) Except as provided by Section 146.0025, a person may not practice tattooing or body piercing at a temporary location unless the person holds a temporary location license for tattooing or body piercing, as appropriate, issued by the department.

(c) The license must be displayed in a prominent place in the tattoo or body piercing studio or temporary location.

(d) Tattooing and body piercing are permitted only at a location that is in compliance with this chapter and rules adopted under this chapter.

Comments

Added by Acts 1993, 73rd Leg., ch. 580, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 936, Sec. 3, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 516, Sec. 3, eff. Sept. 1, 1999.

Sec. 146.0021: Employment of Tattooists and Body Piercers; Registration Required

A tattoo studio or a body piercing studio may not employ a tattooist or a body piercer unless the person is registered with the department under this chapter.

Comments

Added by Acts 2003, 78th Leg., ch. 1226, Sec. 2, eff. Sept. 1, 2003.

Sec. 146.0025: Exemptions from Licensing Requirements; Ear Piercing Establishments Exempt

(a) This chapter does not apply to:

(1) a medical facility licensed under other law;

(2) an office or clinic of a person licensed by the Texas Medical Board;

(3) a person who performs only ear piercing; or

(4) a facility in which only ear piercing is performed.

(b) A person who conducts, operates, or maintains a facility, office, or clinic described by Subsection (a)(1), (2), or (4) is not required to obtain a license under this chapter to operate that facility.

Comments

Added by Acts 1999, 76th Leg., ch. 516, Sec. 3, eff. Sept. 1, 1999.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0440, eff. April 2, 2015.

Sec. 146.003: License Application

(a) To receive a tattoo studio license, body piercing studio license, or temporary location license, a person must submit a signed, verified license application to the department on a form prescribed by the department and must submit an application fee. In addition, the person must submit evidence from the appropriate zoning officials in the municipality or county in which the studio is proposed to be located that confirms that the studio is in compliance with existing zoning codes applicable to the studio.

(b) The department may issue a license or temporary location license for a tattoo or body piercing studio after determining that the studio is in compliance with applicable statutes, rules, and zoning codes.

(c) Repealed by Acts 1999, 76th Leg., ch. 1528, Sec. 9(1), eff. September 1, 1999.

Comments

Added by Acts 1993, 73rd Leg., ch. 580, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 936, Sec. 4, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 516, Sec. 4, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1528, Sec. 1, 9(1), eff. Sept. 1, 1999.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0441, eff. April 2, 2015.

Sec. 146.004: License Term; Renewal

(a) A tattoo studio or body piercing studio license is valid for two years from the date of issuance. A temporary tattooing or body piercing location license is valid for a specified period not to exceed seven days.

(b) A tattoo studio or body piercing studio license may be renewed on payment of the required renewal fee.

Comments

Added by Acts 1993, 73rd Leg., ch. 580, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 936, Sec. 5, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 516, Sec. 5, eff. Sept. 1, 1999.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0442, eff. April 2, 2015.

Sec. 146.0041: General Grounds for Refusal

(a) The department may refuse to issue an original or renewal tattoo studio or body piercing studio license if it has reasonable grounds to believe and finds that any of the following circumstances exist:

(1) the applicant has been convicted of a violation of this chapter during the two years immediately preceding the filing of the application;

(2) three years have not elapsed since the termination, by pardon or otherwise, of a sentence imposed on the applicant for a conviction associated with tattooing or body piercing;

(3) the applicant violated or caused to be violated a provision of this chapter or a rule adopted under this chapter involving moral turpitude during the six months immediately preceding the filing of the application;

(4) the applicant failed to answer or falsely or incorrectly answered a question in an original or renewal application;

(5) the applicant is indebted to the state for a fee or penalty imposed by this chapter or by rule adopted under this chapter;

(6) the applicant is a minor; or

(7) the applicant does not provide an adequate building available at the address for which the license is sought before conducting any activity authorized by the license.

(b) The department may refuse to issue or renew, for a period of one year from the date of application for the initial or renewal license, a tattoo studio or body piercing studio license for a premises where a shooting, stabbing, or other violent act or an offense involving drugs occurred that involved a license applicant, license holder, or registrant under this chapter or a patron or employee of the studio.

Comments

Added by Acts 2003, 78th Leg., ch. 1226, Sec. 3, eff. Sept. 1, 2003.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0443, eff. April 2, 2015.

Sec. 146.0042: Revocation Or Suspension of License

(a) In Subsection (b), "license holder" includes each member of a partnership or association and, with respect to a corporation, each officer and the owner or owners of a majority of the corporate stock.

(b) The department may suspend for not more than 60 days or revoke an original or renewal tattoo studio or body piercing studio license if it is found, after notice and hearing, that any of the following is true:

(1) the license holder has been finally convicted of a violation of this chapter;

(2) the license holder violated a provision of this chapter or a rule adopted under this chapter;

(3) the license holder made a false or misleading statement in connection with the original or renewal application, either in the formal application itself or in any other written instrument relating to the application submitted to the department;

(4) the license holder is indebted to the state for fees or payment of penalties imposed by this chapter or by a rule adopted under this chapter;

(5) the license holder knowingly misrepresented to a customer or the public any tattoo or body piercing jewelry sold by the license holder; or

(6) the license holder was intoxicated on the licensed premises.

(c) The department may refuse to renew or, after notice and hearing, suspend for not more than 60 days or revoke a tattoo studio or body piercing studio license if the department finds that the license holder is shown on the records of the comptroller as being subject to a final determination of taxes due and payable under Chapter 151, Tax Code, or is shown on the records of the comptroller as being subject to a final determination of taxes due and payable under Chapter 321, Tax Code.

(d) If a license holder cannot be located for any notice required under this section, the department shall provide notice by posting a copy of the order on the front door of the licensed premises.

Comments

Added by Acts 2003, 78th Leg., ch. 1226, Sec. 3, eff. Sept. 1, 2003.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0444, eff. April 2, 2015.

Sec. 146.005: Fees

The executive commissioner by rule shall set license and registration fees and license and registration renewal fees in amounts necessary for the department to administer this chapter.

Comments

Added by Acts 1993, 73rd Leg., ch. 580, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 2003, 78th Leg., ch. 1226, Sec. 4, eff. Sept. 1, 2003.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0445, eff. April 2, 2015.

Sec. 146.006: Change of Location

(a) A person holding a tattoo studio or body piercing studio license under this chapter who intends to change the location of the tattoo or body piercing studio shall notify the department in writing of that intent not less than 30 days before the change is to occur. The notice shall include the street address of the new location and the name and residence address of the individual in charge of the business at the new location.

(b) Not later than the 10th day after the change of location is complete, a person holding a license under this chapter shall notify the department in writing and shall verify the information submitted under Subsection (a).

(c) Notice under this section must be sent to the department's central office by certified mail, return receipt requested.

Comments

Added by Acts 1993, 73rd Leg., ch. 580, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 936, Sec. 6, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 516, Sec. 6, eff. Sept. 1, 1999.

Sec. 146.007: Compliance with Chapter and Rules

(a) A person who owns, operates, or maintains a tattoo or body piercing studio or practices tattooing or body piercing at a temporary location shall comply with this chapter, Chapter 431, and rules adopted under this chapter and Chapter 431.

(b) The department may enforce Chapter 431 in relation to a drug, cosmetic, or device that is used in tattooing and that is not otherwise subject to that chapter as if the drug, cosmetic, or device satisfied the definitions assigned those terms under Section 431.002.

Comments

Added by Acts 1993, 73rd Leg., ch. 580, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 936, Sec. 7, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 516, Sec. 7, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1528, Sec. 2, eff. Sept. 1, 1999.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0446, eff. April 2, 2015.

Sec. 146.008: Aseptic Techniques

A person who owns, operates, or maintains a tattoo or body piercing studio and each tattooist or person who performs body piercing who works in the studio or at a temporary location shall take precautions to prevent the spread of infection, including:

(1) using germicidal soap to clean the hands of the tattooist or person who performs body piercing and the skin area of the client to be tattooed or pierced;

(2) wearing clean apparel and rubber gloves;

(3) using sterile tools and equipment as provided by Section 146.011; and

(4) keeping the tattoo or body piercing studio or temporary location in a sanitary condition.

Comments

Added by Acts 1993, 73rd Leg., ch. 580, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 936, Sec. 8, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 516, Sec. 8, eff. Sept. 1, 1999.

Sec. 146.010: Sanitation Requirements

(a) The executive commissioner by rule shall establish sanitation requirements for tattoo and body piercing studios and any other necessary requirements relating to the building or part of the building in which a tattoo or body piercing studio is located.

(b) A person who owns, operates, or maintains a tattoo or body piercing studio shall comply with the rules adopted under this section.

Comments

Added by Acts 1993, 73rd Leg., ch. 580, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 936, Sec. 10, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 516, Sec. 10, eff. Sept. 1, 1999.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0447, eff. April 2, 2015.

Sec. 146.011: Tools and Equipment

(a) A tattooist or person who performs body piercing shall use tools and equipment for tattooing or body piercing that have been properly sterilized and kept in a sterile condition.

(b) A tattooist or person who performs body piercing shall sterilize tools and equipment used on one client before using them on another client.

(c) Tools and equipment shall be sterilized by:

(1) the use of a dry heat sterilizer; or

(2) steam pressure treatment in an autoclave.

(d) All needles and instruments shall be kept in a clean, dust-tight container when not in use.

Comments

Added by Acts 1993, 73rd Leg., ch. 580, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1999, 76th Leg., ch. 516, Sec. 11, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1528, Sec. 3, eff. Sept. 1, 1999.

Sec. 146.012: Tattoos Prohibited for Certain Persons

(a) A tattooist may not tattoo:

(1) except as provided by Subsection (a-1), a person younger than 18 years of age; or

(2) a person who the tattooist suspects is under the influence of alcohol or drugs.

(a-1) A tattooist may tattoo a person younger than 18 years of age if:

(1) the tattoo will cover a tattoo that contains:

(A) obscene or offensive language or symbols;

(B) gang-related names, symbols, or markings;

(C) drug-related names, symbols, or pictures; or

(D) other words, symbols, or markings that the person's parent or guardian considers would be in the best interest of the person to cover; and

(2) the person has obtained consent from the person's parent or guardian to cover the tattoo.

(b) The consent required by Subsection (a-1) may be satisfied by the individual's parent or guardian:

(1) being physically present at the tattoo studio at the time the tattooing is performed;

(2) executing an affidavit stating that the person is the parent or guardian of the individual on whom the tattooing is to be performed;

(3) presenting evidence of the person's identity to the person who will perform the tattooing; and

(4) presenting evidence of the person's status as parent or guardian of the individual who will receive the tattoo.

(c) A person younger than 18 years of age commits an offense if the person falsely states that the person is 18 years of age or older or presents any document that indicates that the person is 18 years of age or older to a person engaged in the operation of a tattoo studio. An offense under this subsection is a Class B misdemeanor.

Comments

Added by Acts 1993, 73rd Leg., ch. 580, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 936, Sec. 11, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 1528, Sec. 4, eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 1226, Sec. 5, eff. Sept. 1, 2003.

Sec. 146.0124: Body Piercing Prohibited for Certain Persons

A person may not perform body piercing if the person suspects that the individual on whom the body piercing is to be performed is under the influence of alcohol or drugs.

Comments

Added by Acts 1999, 76th Leg., ch. 516, Sec. 12, eff. Sept. 1, 1999.

Sec. 146.0125: Body Piercing Prohibited Without Parental Consent; Exception

(a) A person may not perform body piercing on an individual younger than 18 years of age without the consent of a parent, managing conservator, or guardian of the individual.

(b) The consent must indicate the part of the person's body that may be pierced.

(c) The consent required by Subsections (a) and (b) may be satisfied by the individual's parent or guardian:

(1) being physically present at the body piercing studio at the time the body piercing is performed;

(2) executing an affidavit stating that the person is the parent or guardian of the individual on whom the body piercing is to be performed;

(3) presenting evidence of the person's identity to the person who will perform the body piercing; and

(4) presenting evidence of the person's status as parent or guardian of the individual who will receive the body piercing.

(d) A person younger than 18 years of age commits an offense if the person falsely states that the person is 18 years of age or older or presents any document that indicates that the person is 18 years of age or older to a person engaged in the operation of a body piercing studio. An offense under this subsection is a Class B misdemeanor.

Comments

Added by Acts 1999, 76th Leg., ch. 516, Sec. 12, eff. Sept. 1, 1999. Amended by Acts 2003, 78th Leg., ch. 1226, Sec. 6, eff. Sept. 1, 2003.

Sec. 146.0126: Tongue Splitting Prohibited

(a) For purposes of this section, "tongue splitting" means cutting a human tongue into two or more parts.

(b) A person may not perform tongue splitting.

Comments

Added by Acts 2003, 78th Leg., ch. 1226, Sec. 7, eff. Sept. 1, 2003.

Sec. 146.013: Maintenance of Records

(a) A tattooist shall maintain a permanent record of each person tattooed by the tattooist for a period established by department rule. A person who performs body piercing shall maintain a permanent record of each individual whose body is pierced by the person for a period established by department rule.

(b) The record shall be available for inspection on the request of the department.

Comments

Added by Acts 1993, 73rd Leg., ch. 580, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1999, 76th Leg., ch. 516, Sec. 13, eff. Sept. 1, 1999.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0448, eff. April 2, 2015.

Sec. 146.014: Report of Infection

A person who owns, operates, or maintains a tattoo or body piercing studio shall report to the department any infection resulting from tattooing or body piercing as soon as it becomes known.

Comments

Added by Acts 1993, 73rd Leg., ch. 580, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 936, Sec. 12, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 516, Sec. 14, eff. Sept. 1, 1999.

Sec. 146.015: Rules; Enforcement

(a) The executive commissioner shall adopt rules to implement this chapter.

(b) The department shall enforce this chapter and the rules adopted under this chapter and may issue orders to compel compliance.

Comments

Added by Acts 1993, 73rd Leg., ch. 580, Sec. 1, eff. Sept. 1, 1993.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0449, eff. April 2, 2015.

Sec. 146.016: Inspections

(a) The department shall inspect a tattoo or body piercing studio to determine if the studio complies with this chapter and the rules adopted under this chapter.

(b) A person who owns, operates, or maintains a tattoo or body piercing studio shall allow inspection of the studio by the department at any time the studio is in operation.

(c) The department shall inform the person who owns, operates, or maintains a tattoo or body piercing studio of any violation discovered by the department under this section and shall give the person a reasonable period in which to take necessary corrective action.

Comments

Added by Acts 1993, 73rd Leg., ch. 580, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 936, Sec. 13, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 516, Sec. 15, eff. Sept. 1, 1999.

Sec. 146.017: License Denial, Suspension, Or Revocation

(a) The department may refuse to issue a license or suspend or revoke a license issued under this chapter if an applicant or license holder does not comply with this chapter or a rule adopted or order issued under this chapter.

(b) The refusal to issue a license, the suspension or revocation of a license, and any appeals are governed by the department's formal hearing procedures and the procedures for a contested case hearing under Chapter 2001, Government Code. A person may appeal a final decision of the department as provided by that chapter.

Comments

Added by Acts 1993, 73rd Leg., ch. 580, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.95(49), eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 1528, Sec. 5, eff. Sept. 1, 1999.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0450, eff. April 2, 2015.

Sec. 146.018: Offense; Criminal Penalty

(a) A person commits an offense if the person violates this chapter or a rule adopted under this chapter.

(b) An offense under this section is a Class A misdemeanor.

(c) Each day of violation constitutes a separate offense.

Comments

Added by Acts 1993, 73rd Leg., ch. 580, Sec. 1, eff. Jan. 1, 1994. Amended by Acts 1999, 76th Leg., ch. 1528, Sec. 6, eff. Sept. 1, 1999.

Sec. 146.019: Administrative Penalty

(a) The department may impose an administrative penalty against a person who violates a rule adopted under Section 146.007 or an order adopted or license issued under this chapter.

(b) The penalty for a violation may be in an amount not to exceed $5,000. Each day a violation continues or occurs is a separate violation for purposes of imposing a penalty.

(c) The amount of the penalty shall be based on:

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

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

(3) the history of previous violations;

(4) the amounts necessary to deter future violations;

(5) efforts to correct the violation; and

(6) any other matter that justice may require.

(d) The department shall issue an order that states the facts on which a determination that a violation occurred is based, including an assessment of the penalty.

(e) The department shall give written notice of the order to the person. The notice may be given by certified mail. The notice must include a brief summary of the alleged violation and a statement of the amount of the recommended penalty and must inform the person that the person has a right to a hearing on the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty.

(f) Within 20 days after the date the person receives the notice, the person in writing may accept the determination and recommended penalty of the department or may make written request for a hearing on the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty.

(g) If the person accepts the determination and recommended penalty of the department, the department by order shall impose the recommended penalty.

(h) If the person requests a hearing or fails to respond timely to the notice, the department shall refer the case to the State Office of Administrative Hearings and an administrative law judge of that office shall hold the hearing. The department shall give written notice of the hearing to the person. The administrative law judge shall make findings of fact and conclusions of law and promptly issue to the department a proposal for a decision about the occurrence of the violation and the amount of a proposed penalty. Based on the findings of fact, conclusions of law, and proposal for a decision, the department by order may find that a violation has occurred and impose a penalty or may find that no violation occurred.

(i) The notice of the department's order given to the person under Chapter 2001, Government Code, must include a statement of the right of the person to judicial review of the order.

(j) Within 30 days after the date the department's order is final as provided by Subchapter F, Chapter 2001, Government Code, the person shall:

(1) pay the amount of the penalty;

(2) pay the amount of the penalty and file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty; or

(3) without paying the amount of the penalty, file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty.

(k) Within the 30-day period, a person who acts under Subsection (j)(3) may:

(1) stay enforcement of the penalty by:

(A) paying the amount of the penalty to the court for placement in an escrow account; or

(B) giving to the court a supersedeas bond approved by the court for the amount of the penalty and that is effective until all judicial review of the department's order is final; or

(2) request the court to stay enforcement of the penalty by:

(A) filing with the court a sworn affidavit of the person stating that the person is financially unable to pay the amount of the penalty and is financially unable to give the supersedeas bond; and

(B) giving a copy of the affidavit to the department by certified mail.

(l) The department on receipt of a copy of an affidavit under Subsection (k)(2) may file, with the court within five days after the date the copy is received, a contest to the affidavit. The court shall hold a hearing on the facts alleged in the affidavit as soon as practicable and shall stay the enforcement of the penalty on finding that the alleged facts are true. The person who files an affidavit has the burden of proving that the person is financially unable to pay the amount of the penalty and to give a supersedeas bond.

(m) If the person does not pay the amount of the penalty and the enforcement of the penalty is not stayed, the department may refer the matter to the attorney general for collection of the amount of the penalty.

(n) Judicial review of the order of the department:

(1) is instituted by filing a petition as provided by Subchapter G, Chapter 2001, Government Code; and

(2) is under the substantial evidence rule.

(o) If the court sustains the occurrence of the violation, the court may uphold or reduce the amount of the penalty and order the person to pay the full or reduced amount of the penalty. If the court does not sustain the occurrence of the violation, the court shall order that no penalty is owed.

(p) When the judgment of the court becomes final, the court shall proceed under this subsection. If the person paid the amount of the penalty and if that amount is reduced or is not upheld by the court, the court shall order that the appropriate amount plus accrued interest be remitted to the person. The rate of the interest is the rate charged on loans to depository institutions by the New York Federal Reserve Bank, and the interest shall be paid for the period beginning on the date the penalty was paid and ending on the date the penalty is remitted. If the person gave a supersedeas bond and if the amount of the penalty is not upheld by the court, the court shall order the release of the bond. If the person gave a supersedeas bond and if the amount of the penalty is reduced, the court shall order the release of the bond after the person pays the amount.

(q) A penalty collected under this section shall be remitted to the comptroller for deposit in the general revenue fund.

(r) All proceedings under this section are subject to Chapter 2001, Government Code.

(s) Repealed by Acts 2015, 84th Leg., R.S., Ch. 1, Sec. 3.1639(52), eff. April 2, 2015.

Comments

Added by Acts 1993, 73rd Leg., ch. 580, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.95(51), (55), (59), eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 1528, Sec. 7, eff. Sept. 1, 1999.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0451, eff. April 2, 2015.

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.1639(52), eff. April 2, 2015.

Sec. 146.020: Civil Penalty; Injunction

(a) If it appears that a person has violated or is violating this chapter or an order issued or a rule adopted under this chapter, the commissioner may request the attorney general or the district attorney, county attorney, or municipal attorney in the jurisdiction where the violation is alleged to have occurred, is occurring, or may occur to institute a civil suit for:

(1) an order enjoining the violation;

(2) a permanent or temporary injunction, a temporary restraining order, or other appropriate remedy, if the department shows that the person has engaged in or is engaging in a violation;

(3) the assessment and recovery of a civil penalty; or

(4) both injunctive relief and a civil penalty.

(b) A civil penalty may not exceed $5,000 a day for each violation. Each day the violation occurs constitutes a separate violation for the purposes of the assessment of a civil penalty.

(c) In determining the amount of the civil penalty, the court hearing the matter shall consider:

(1) the person's history of previous violations;

(2) the seriousness of the violation;

(3) the hazard to the health and safety of the public;

(4) the demonstrated good faith of the person charged; and

(5) any other matter as justice may require.

(d) Venue for a suit brought under this section is in the county in which the violation occurred or in Travis County.

(e) A civil penalty recovered in a suit instituted by a local government under this chapter shall be paid to the local government.

(f) The commissioner or the attorney general may recover reasonable expenses incurred in obtaining injunctive relief or a civil penalty under this section, including investigation and court costs, reasonable attorney's fees, witness fees, and other expenses. The expenses recovered by the commissioner under this section may be used for the administration and enforcement of this chapter. The expenses recovered by the attorney general may be used by the attorney general for any purpose.

Comments

Added by Acts 1999, 76th Leg., ch. 1528, Sec. 8, eff. Sept. 1, 1999.

Sec. 146.021: Emergency Orders

(a) The commissioner may, with or without notice or hearing, issue an emergency order relating to regulation under this chapter of a tattooist or body piercer, or to the operation of a tattoo studio or body piercing studio, if the commissioner finds:

(1) that:

(A) the operation of the tattoo studio or body piercing studio or the performance of tattooing or body piercing by the tattooist or body piercer presents an immediate and serious threat to human health; or

(B) a shooting, stabbing, or other violent act or an offense involving drugs:

(i) occurred at the tattoo studio or body piercing studio; or

(ii) involved the tattooist or body piercer; and

(2) that other procedures available to the department to remedy or prevent the threat will result in an unreasonable delay.

(b) If the commissioner issues an emergency order under this section without a hearing, the department shall set a hearing under Chapter 2001, Government Code, to affirm, modify, or set aside the emergency order.

(c) If the license or registration holder cannot be located for a notice required under this section, the department shall provide notice by posting a copy of the order on the front door of the premises of the license holder or the premises where the registration holder is employed.

Comments

Added by Acts 2003, 78th Leg., ch. 1226, Sec. 8, eff. Sept. 1, 2003.

Sec. 146.022: Registration Required for Tattooists and Body Piercers

(a) A person may not perform tattooing or body piercing at a tattoo studio or a body piercing studio unless the person holds a registration issued by the department as a tattooist or body piercer under this section.

(b) The registration holder shall display the registration in a prominent place at each tattoo studio or body piercing studio or temporary location where the person is employed.

Comments

Added by Acts 2003, 78th Leg., ch. 1226, Sec. 8, eff. Sept. 1, 2003.

Sec. 146.023: Registration Application

To receive a tattooist or body piercer registration, the person must submit:

(1) a signed registration application to the department on a form prescribed by the department;

(2) the application fee; and

(3) proof of completion of a training course approved by the department for tattooists and body piercers that includes not less than six hours related to bloodborne pathogens, infection control, and aseptic technique.

Comments

Added by Acts 2003, 78th Leg., ch. 1226, Sec. 8, eff. Sept. 1, 2003.

Sec. 146.024: Registration Term; Renewal

(a) A tattooist or body piercer registration is valid for two years from the date of issuance.

(b) A tattooist or body piercer registration may be renewed on:

(1) payment of the required renewal fee; and

(2) submission of proof of completion of a training course approved by the department that includes not less than four hours related to bloodborne pathogens, infection control, and aseptic technique.

Comments

Added by Acts 2003, 78th Leg., ch. 1226, Sec. 8, eff. Sept. 1, 2003.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0452, eff. April 2, 2015.

Sec. 146.025: Course of Instruction for Tattooists and Body Piercers; Rules; Fees

(a) The department shall prepare or approve a course of instruction sufficient to meet the requirements for application for a registration under Section 146.023 or renewal of a registration under Section 146.024.

(b) The department may approve a course of instruction based on any standards set by the executive commissioner to reasonably ensure that a tattooist or body piercer develops the job skills and knowledge necessary to protect public health and safety.

(c) A prospective course provider must submit to the department for approval the course length and curriculum content for each course offered by the provider. The provider may implement a course length and curriculum content only after department approval.

(d) The executive commissioner by rule shall set a fee in an amount reasonable and necessary to cover the cost to the department of reviewing the course content and issuing the approval.

Comments

Added by Acts 2003, 78th Leg., ch. 1226, Sec. 8, eff. Sept. 1, 2003.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0453, eff. April 2, 2015.