Part 6.
TEXAS BOARD OF PROFESSIONAL ENGINEERS
Chapter 131.
PRACTICE AND PROCEDURE
The Texas Board of Professional Engineers proposes to repeal Texas
Administrative Code, Title 22, Part 6, Texas Board of Professional Engineers,
Chapter 131, Practice and Procedure in its entirety as a part of the rule
review required by Chapter 2001, Texas Government Code. The rules to be repealed
and replaced by new rules in new chapters are: Subchapter A, Bylaws and Definitions, §§131.1
- 131.22, Subchapter B, Application for License, §§131.31 - 131.38
and §§131.51 - 131.55, Subchapter C, References, §§131.71
- 131.73, Subchapter D, Engineering Experience, §131.81, Subchapter E,
Education, §§131.91 - 131.94, Subchapter F, Examinations, §§131.101
- 131.108, Subchapter G, Board Review of Application §§131.111 -
131.116, Subchapter H, Licensing, Division 1, Professional Engineer License, §§131.131
- 131.139, Division 2, Registration of Firms, §§131.141 - 131.144,
Subchapter I, Professional Conduct and Ethics, §§131.151 - 131.156,
Subchapter J, Compliance and Enforcement, §§131.161 - 131.168, Subchapter
K, Complaints, §§131.171 - 131.177, Subchapter L, Hearings--Contested
Cases, §§131.181 - 131.223 and Subchapter M, Policy Advisory Opinions, §§131.301
- 131.307.
Elsewhere in this issue of the
Texas Register
, the Texas Board of Professional Engineers is publishing additional
comment information relating to the recent adoption of §131.139, concerning
Continuing Education Program, in the January 30, 2004, issue of the
The Board proposes this action in conjunction with proposing five new chapters
to better organize the agency rules and procedures. Since the statutory references
in the Board Rules must be changed to reflect the new designations in the
re-codified Act, nearly every rule must be re-proposed and adopted with the
new references. The Board has chosen this time to fix some organization problems
in the existing rules and as well as incorporate new legislative requirements.
Victoria J. L. Hsu, P.E., Executive Director for the board, has determined
that for the first five-year period the repeals are in effect, there will
be no fiscal implications for state or local government as a result of enforcing
or administering upon repeal since the substance of the repealed rules will
be re-proposed and adopted under new chapters.
Ms. Hsu has also determined that for each year of the first five years
the repeals are in effect, the public benefit anticipated as a result of enforcing
and administering the proposed repeals will be that the general public and
license holders of Texas will be able to follow more organized rules and streamlined
processes and procedures in the new rules. For the same period, there is no
anticipated adverse economic effect on individuals, small businesses, or micro-businesses.
Comments may be submitted, no later than 30 days after publication, to
Victoria J. L. Hsu, P.E., Executive Director, Texas Board of Professional
Engineers, 1917 IH 35 South, Austin, Texas 78741 or faxed to her attention
at (512) 442-1414.
Subchapter A. BYLAWS AND DEFINITIONS
22 TAC §§131.1 - 131.22
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Board of Professional Engineers or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed pursuant to the Texas Engineering
Practice Act, Texas Occupations Code §1001.202, which authorizes the
board to make and enforce all rules and regulations and bylaws consistent
with the Act as necessary for the performance of its duties, the governance
of its own proceedings, and the regulation of the practice of engineering
in this state.
The following are the statutes, articles, or codes affected by the proposed
repeals:
Texas Occupations Code §1001.202
§131.1.Headquarters of the Board.
§131.2.Organization of the Board.
§131.3.Chairman of the Board.
§131.4.Vice Chairman of the Board.
§131.5.Pro Tem Chairman of the Board.
§131.6.Secretary of the Board.
§131.7.Vacancies in the Board.
§131.8.All Meetings Open to the Public.
§131.9.Regular Board Meetings.
§131.10.Special Board Meetings.
§131.11.Rules of Order.
§131.12.Order of Business.
§131.13.Fiscal Matters.
§131.14.Seal of the Board.
§131.15.Executive Director.
§131.16.Minutes of Board Meetings.
§131.17.National Council.
§131.18.Definitions.
§131.19.Requests for Information.
§131.20.Committees.
§131.21.Self-Directed Semi-Independent Agency Project.
§131.22.Employee Training.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on February 9, 2004.
TRD-200400826
Victoria J. L. Hsu, P.E.
Executive Director
Texas Board of Professional Engineers
Earliest possible date of adoption: March 21, 2004
For further information, please call: (512) 440-7723
22 TAC §§131.31 - 131.38, 131.51 - 131.55
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Board of Professional Engineers or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed pursuant to the Texas Engineering
Practice Act, Texas Occupations Code §1001.202, which authorizes the
board to make and enforce all rules and regulations and bylaws consistent
with the Act as necessary for the performance of its duties, the governance
of its own proceedings, and the regulation of the practice of engineering
in this state.
The following are the statutes, articles, or codes affected by the proposed
repeals:
Texas Occupations Code §1001.202
§131.31.Purpose.
§131.32.Amendments, Deletions, and Additions of Rules.
§131.33.Petition for Adoption of Rules.
§131.34.Petition Decision by Board.
§131.35.Suspension of Rules.
§131.36.Invalid Portions and Saving Provisions.
§131.37.Effective Date.
§131.38.Rules Identification and Format.
§131.51.Authority.
§131.52.Applications for a Professional Engineer License.
§131.53.Applications--General.
§131.54.Applications from Former Texas License Holders.
§131.55.Applications from Engineering Educators.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on February 9, 2004.
TRD-200400827
Victoria J. L. Hsu, P.E.
Executive Director
Texas Board of Professional Engineers
Earliest possible date of adoption: March 21, 2004
For further information, please call: (512) 440-7723
22 TAC §§131.71 - 131.73
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Board of Professional Engineers or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed pursuant to the Texas Engineering
Practice Act, Texas Occupations Code §1001.202, which authorizes the
board to make and enforce all rules and regulations and bylaws consistent
with the Act as necessary for the performance of its duties, the governance
of its own proceedings, and the regulation of the practice of engineering
in this state.
The following are the statutes, articles, or codes affected by the proposed
repeals:
Texas Occupations Code §1001.202
§131.71.References.
§131.72.Reference Statements.
§131.73.Reference Communication.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on February 9, 2004.
TRD-200400828
Victoria J. L. Hsu, P.E.
Executive Director
Texas Board of Professional Engineers
Earliest possible date of adoption: March 21, 2004
For further information, please call: (512) 440-7723
22 TAC §131.81
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the Texas Board of Professional Engineers or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal is proposed pursuant to the Texas Engineering
Practice Act, Texas Occupations Code §1001.202, which authorizes the
board to make and enforce all rules and regulations and bylaws consistent
with the Act as necessary for the performance of its duties, the governance
of its own proceedings, and the regulation of the practice of engineering
in this state.
The following are the statutes, articles, or codes affected by the proposed
repeal:
Texas Occupations Code §1001.202
§131.81.Experience Evaluation.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on February 9, 2004.
TRD-200400829
Victoria J. L. Hsu, P.E.
Executive Director
Texas Board of Professional Engineers
Earliest possible date of adoption: March 21, 2004
For further information, please call: (512) 440-7723
22 TAC §§131.91 - 131.94
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the Texas Board of Professional Engineers or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed pursuant to the Texas Engineering
Practice Act, Texas Occupations Code §1001.202, which authorizes the
board to make and enforce all rules and regulations and bylaws consistent
with the Act as necessary for the performance of its duties, the governance
of its own proceedings, and the regulation of the practice of engineering
in this state.
The following are the statutes, articles, or codes affected by the proposed
repeals:
Texas Occupations Code §1001.202
§131.91.Educational Requirements for Applicants.
§131.92.Proof of Educational Qualifications--Non-Accredited/Non-Approved Programs.
§131.93.Proof of Educational Qualifications--Accredited/Approved Programs.
§131.94.English Translation.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on February 9, 2004.
TRD-200400830
Victoria J. L. Hsu, P.E.
Executive Director
Texas Board of Professional Engineers
Earliest possible date of adoption: March 21, 2004
For further information, please call: (512) 440-7723
22 TAC §§131.101 - 131.108
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the Texas Board of Professional Engineers or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed pursuant to the Texas Engineering
Practice Act, Texas Occupations Code §1001.202, which authorizes the
board to make and enforce all rules and regulations and bylaws consistent
with the Act as necessary for the performance of its duties, the governance
of its own proceedings, and the regulation of the practice of engineering
in this state.
The following are the statutes, articles, or codes affected by the proposed
repeals:
Texas Occupations Code §1001.202
§131.101.Engineering Examinations Required for a License to Practice as a Professional Engineer.
§131.102.Texas Engineering Professional Conduct and Ethics Examination.
§131.103.Examination on the Fundamentals of Engineering.
§131.104.Examination on the Principles and Practice of Engineering.
§131.105.Waiver of Examinations.
§131.106.Examination for Record Purposes.
§131.107.Examination Analysis.
§131.108.Examination Irregularities.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on February 9, 2004.
TRD-200400831
Victoria J. L. Hsu, P.E.
Executive Director
Texas Board of Professional Engineers
Earliest possible date of adoption: March 21, 2004
For further information, please call: (512) 440-7723
22 TAC §§131.111 - 131.116
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Board of Professional Engineers or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed pursuant to the Texas Engineering
Practice Act, Texas Occupations Code §1001.202, which authorizes the
board to make and enforce all rules and regulations and bylaws consistent
with the Act as necessary for the performance of its duties, the governance
of its own proceedings, and the regulation of the practice of engineering
in this state.
The following are the statutes, articles, or codes affected by the proposed
repeals:
Texas Occupations Code §1001.202
§131.111.Reviewing, Evaluating and Processing Applications.
§131.112.Processing of Administratively Withdrawn Applications.
§131.113.Reconsideration of Denied Applications or Examination Waivers.
§131.114.Personal Interviews of Applicants.
§131.115.Application Files.
§131.116.Issuance of License.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on February 9, 2004.
TRD-200400832
Victoria J. L. Hsu, P.E.
Executive Director
Texas Board of Professional Engineers
Earliest possible date of adoption: March 21, 2004
For further information, please call: (512) 440-7723
1.
PROFESSIONAL ENGINEER LICENSE
22 TAC §§131.131 - 131.139
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Board of Professional Engineers or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed pursuant to the Texas Engineering
Practice Act, Texas Occupations Code §1001.202, which authorizes the
board to make and enforce all rules and regulations and bylaws consistent
with the Act as necessary for the performance of its duties, the governance
of its own proceedings, and the regulation of the practice of engineering
in this state.
The following are the statutes, articles, or codes affected by the proposed
repeals:
Texas Occupations Code §1001.202
§131.131.Regular and Temporary Licenses.
§131.132.Provisional Licenses.
§131.133.Professional Designations.
§131.134.Expirations and Renewals.
§131.135.Replacement Certificates.
§131.136.New Design Certificates.
§131.137.Engineer-in-Training.
§131.138.Engineer-in-Training Certificates.
§131.139.Continuing Education Program.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on February 9, 2004.
TRD-200400833
Victoria J. L. Hsu, P.E.
Executive Director
Texas Board of Professional Engineers
Earliest possible date of adoption: March 21, 2004
For further information, please call: (512) 440-7723
22 TAC §§131.141 - 131.144
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Board of Professional Engineers or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed pursuant to the Texas Engineering
Practice Act, Texas Occupations Code §1001.202, which authorizes the
board to make and enforce all rules and regulations and bylaws consistent
with the Act as necessary for the performance of its duties, the governance
of its own proceedings, and the regulation of the practice of engineering
in this state.
The following are the statutes, articles, or codes affected by the proposed
repeals:
Texas Occupations Code §1001.202
§131.141.Authority.
§131.142.Application for a Certificate of Registration.
§131.143.Registration Modification, Renewal and Expiration.
§131.144.Firm Registration Compliance.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on February 9, 2004.
TRD-200400834
Victoria J. L. Hsu, P.E.
Executive Director
Texas Board of Professional Engineers
Earliest possible date of adoption: March 21, 2004
For further information, please call: (512) 440-7723
22 TAC §§131.151 - 131.156
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Board of Professional Engineers or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed pursuant to the Texas Engineering
Practice Act, Texas Occupations Code §1001.202, which authorizes the
board to make and enforce all rules and regulations and bylaws consistent
with the Act as necessary for the performance of its duties, the governance
of its own proceedings, and the regulation of the practice of engineering
in this state.
The following are the statutes, articles, or codes affected by the proposed
repeals:
Texas Occupations Code §1001.202
§131.151.Engineers Shall Protect the Public.
§131.152.Engineers Shall Be Objective and Truthful.
§131.153.Engineers' Actions Shall Be Competent.
§131.154.Engineers Shall Maintain Confidentiality of Clients.
§131.155.Engineers' Responsibility to the Profession.
§131.156.Action in Another Jurisdiction.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on February 9, 2004.
TRD-200400835
Victoria J. L. Hsu, P.E.
Executive Director
Texas Board of Professional Engineers
Earliest possible date of adoption: March 21, 2004
For further information, please call: (512) 440-7723
22 TAC §§131.161 - 131.168
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Board of Professional Engineers or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed pursuant to the Texas Engineering
Practice Act, Texas Occupations Code §1001.202, which authorizes the
board to make and enforce all rules and regulations and bylaws consistent
with the Act as necessary for the performance of its duties, the governance
of its own proceedings, and the regulation of the practice of engineering
in this state.
The following are the statutes, articles, or codes affected by the proposed
repeals:
Texas Occupations Code §1001.202
§131.161.General.
§131.162.Firm Compliance.
§131.163.Engineer Compliance.
§131.164.Business Names.
§131.165.A License Holder's Responsibility to the Board.
§131.166.Engineers' Seals.
§131.167.Disciplinary Actions.
§131.168.Actions Against Non-License Holders.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on February 9, 2004.
TRD-200400836
Victoria J. L. Hsu, P.E.
Executive Director
Texas Board of Professional Engineers
Earliest possible date of adoption: March 21, 2004
For further information, please call: (512) 440-7723
22 TAC §§131.171 - 131.177
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Board of Professional Engineers or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed pursuant to the Texas Engineering
Practice Act, Texas Occupations Code §1001.202, which authorizes the
board to make and enforce all rules and regulations and bylaws consistent
with the Act as necessary for the performance of its duties, the governance
of its own proceedings, and the regulation of the practice of engineering
in this state.
The following are the statutes, articles, or codes affected by the proposed
repeals:
Texas Occupations Code §1001.202
§131.171.General.
§131.172.Complaints Against License Holders.
§131.173.Complaints Against Unlicensed Persons, or Firms, Partnerships and Other Entities.
§131.174.Investigating a Complaint.
§131.175.Final Resolution of Complaint.
§131.176.Reporting Complaint Status to the Board.
§131.177.Technical Consultants.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on February 9, 2004.
TRD-200400837
Victoria J. L. Hsu, P.E.
Executive Director
Texas Board of Professional Engineers
Earliest possible date of adoption: March 21, 2004
For further information, please call: (512) 440-7723
22 TAC §§131.181 - 131.223
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Board of Professional Engineers or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed pursuant to the Texas Engineering
Practice Act, Texas Occupations Code §1001.202, which authorizes the
board to make and enforce all rules and regulations and bylaws consistent
with the Act as necessary for the performance of its duties, the governance
of its own proceedings, and the regulation of the practice of engineering
in this state.
The following are the statutes, articles, or codes affected by the proposed
repeals:
Texas Occupations Code §1001.202
§131.181.State Office of Administrative Hearings.
§131.182.Board Responsibilities.
§131.183.Jurisdiction; Request for Hearing or Law Judge.
§131.184.Filings.
§131.185.Stipulations; Agreements.
§131.186.Service.
§131.187.Conduct and Decorum.
§131.188.Classification of Parties.
§131.189.Appearances in Person or by Representative; Waivers; Default.
§131.190.Classification of Pleadings.
§131.191.Form and Content of Pleadings.
§131.192.Discovery.
§131.193.Motions; Amendments.
§131.194.Prehearing Conferences and Orders.
§131.195.Notice of Hearing.
§131.196.Certificates of Registration.
§131.197.Conduct of Hearings.
§131.198.Formal Exceptions.
§131.199.Motions for Postponement, Continuance, Withdrawal, or Dismissal of Matters before the Board.
§131.200.Place and Nature of Hearings.
§131.201.Administrative Law Judge.
§131.202.Order of Proceedings.
§131.203.Reporters and Transcript.
§131.204.Telephone Hearings.
§131.205.Dismissal, Settlement without Hearing.
§131.206.Rules of Evidence.
§131.207.Documentary Evidence.
§131.208.Official Notice.
§131.209.Prepared or Prefiled Testimony.
§131.210.Limitations on Number of Witnesses.
§131.211.Exhibits.
§131.212.Offer of Proof.
§131.213.Depositions.
§131.214.Subpoenas.
§131.215.Proposals for Decision.
§131.216.Filing of Exceptions, Briefs, and Replies.
§131.217.Form and Content of Briefs, Exceptions, and Replies.
§131.218.Oral Argument.
§131.219.Final Decisions and Orders.
§131.220.Administrative Finality.
§131.221.Motions for Rehearing.
§131.222.Rendering of Final Decision or Order.
§131.223.The Record.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on February 9, 2004.
TRD-200400838
Victoria J. L. Hsu, P.E.
Executive Director
Texas Board of Professional Engineers
Earliest possible date of adoption: March 21, 2004
For further information, please call: (512) 440-7723
22 TAC §§131.301 - 131.307
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Board of Professional Engineers or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed pursuant to the Texas Engineering
Practice Act, Texas Occupations Code §1001.202, which authorizes the
board to make and enforce all rules and regulations and bylaws consistent
with the Act as necessary for the performance of its duties, the governance
of its own proceedings, and the regulation of the practice of engineering
in this state.
The following are the statutes, articles, or codes affected by the proposed
repeals:
Texas Occupations Code §1001.202
§131.301.Definitions.
§131.302.Subject of an Advisory Opinion.
§131.303.Request for an Advisory Opinion.
§131.304.Board Initiated Opinion.
§131.305.Receipt, Review, and Processing of a Request.
§131.306.Compilation of Advisory Opinions.
§131.307.Time Period.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on February 9, 2004.
TRD-200400839
Victoria J. L. Hsu, P.E.
Executive Director
Texas Board of Professional Engineers
Earliest possible date of adoption: March 21, 2004
For further information, please call: (512) 440-7723
The Texas Board of Professional Engineers proposes new rules in Texas
Administrative Code, Title 22, Part 6 Texas Board of Professional Engineers,
Chapter 131: Organization and Administration. The proposed new rules are:
Subchapter A, Organization and Administration, §§131.1, 131.3, 131.5,
131.7, 131.9, 131.11, 131.13, 131.15, Subchapter B, Organization of the Board
Staff, §§131.31, 131.33, 131.35, Subchapter C, Meetings, §§131.41,
131.43, 131.45, 131.47, 131.49, 131.51, 131.53, Subchapter D, Fiscal Matters, §131.61, §131.63,
Subchapter E, Cooperative Affiliations, §131.71, §131.73, Subchapter
F, Administration, §§131.81, 131.83, 131.85, Subchapter G, Advisory
Opinions, §§131.101, 131.103, 131.105, 131.107, 131.109, and, 131.111.
The Board proposes this action in conjunction with repeal of the existing
Chapter 131: Practice and Procedure. Also, the board proposes this action
in conjunction with proposing five new chapters to better organize the agency
rules and procedures.
As a part of the rule review required by Chapter 2001, Texas Government
Code, the Board must review and update the existing rules. Since the statutory
references in the Board Rules must be changed to reflect the new designations
in the re-codified Act, nearly every rule must be re-proposed and adopted
with the new references. The Board has chosen this time to re-organize the
existing rules, incorporate new legislative requirements, and develop a framework
to aid in future rule expansion.
Since most of the content of the proposed rules are a repeat of the existing
rules with few changes, the board will highlight substantive changes by subchapter.
The rules proposed are not number consecutively and reserves numbers for future
expansion.
In the proposed Subchapter A: Organization of the Board, the board includes
the statutory provision requiring the governor to appoint the presiding officer
of the board. In addition, the new rules summarize the board member responsibilities
and duties. The proposed rule for board committees establishes a new policy
advisory opinion committee and summarizes the statutory requirements for the
joint committee on the practice of engineering and architecture.
In the proposed Subchapter B: Organization of the Board Staff, the board
expands its employee training rules to comply with the State Employee Training
Act, §656, Texas Government Code.
In the proposed Subchapter C: Meetings, the board establishes by rule a
procedure for public comment at committee and full board meetings. The new
rule also allows for a member of the public to request a topic within the
jurisdiction of the board be placed on a committee or full board agenda subject
to the discretion of the committee or board chair. In this subchapter, the
existing rules regarding meetings were modified to reflect the current language
in the statute.
In the proposed Subchapter D: Fiscal Matters, the board proposes new rules
to adopt by reference procedures required by Chapter 2161 and Chapter 2260,
Texas Government Code, relating to HUB requirements and negotiating contract
disputes.
In the proposed Subchapter E: Cooperative Affiliations, the board proposes
rules to clarify participation with the National Council of Examiners for
Engineering and Surveying , including establishing the role and function of
emeritus members from the board to that organization. The new rule also describes
the board's initiative to develop memoranda of understanding with organizations
with engineering related requirements.
In the proposed Subchapter F: Administration, the board proposes definitions
of commonly used terms and phrases in the rules and adds several new definitions
to the existing list of definitions including advisory opinion and number,
various acronyms for organizations related to licensure, and recognized institution
of higher education relevant toward meeting the educational requirements for
licensure. The new rules also summarize the procedures for making board rules
and provides a provision for the statute to take precedent over an existing
rule if the statute becomes effective before the rule can be modified.
And, finally, in the proposed Subchapter G: Advisory Opinions, the board
proposes the existing rules regarding advisory opinions; however, the definitions
of the previous rule have been moved to the earlier section on definitions
and the board adds a provision to clarify that reconsideration or revision
of an existing opinion shall be treated as a new request.
Victoria J. L. Hsu, P.E., Executive Director for the board, has determined
that for the first five-year period the new rules are in effect, there will
be minimal fiscal implications for state or local government as a result of
enforcing or administering the new rules since the substance of the proposed
rules comes from the current rules.
Ms. Hsu has also determined that for each year of the first five years
the new rules are in effect, the public benefit anticipated as a result of
enforcing and administering the proposed rules will be that the general public
and license holders of Texas will be able to follow more organized rules and
streamlined processes and procedures in the new rules. For the same period,
there is no anticipated adverse economic effect on small or micro-businesses.
Comments may be submitted, no later than 30 days after publication, to
Victoria J. L. Hsu, P.E., Executive Director, Texas Board of Professional
Engineers, 1917 IH 35 South, Austin, Texas 78741 or faxed to her attention
at (512) 442-1414.
Subchapter A. ORGANIZATION OF THE BOARD
22 TAC §§131.1, 131.3, 131.5, 131.7, 131.9, 131.11, 131.13, 131.15
The new rules are proposed pursuant to the Texas Engineering
Practice Act, Occupations Code §1001.202, which authorizes the board
to make and enforce all rules and regulations and bylaws consistent with the
Act as necessary for the performance of its duties, the governance of its
own proceedings, and the regulation of the practice of engineering in this
state.
The following are the statutes, articles, or codes affected by the proposed
new rules:
Texas Administrative Code, Title 22, Part 6 Texas Board of Professional
Engineers, Chapter 131: Organization and Administration - Occupations Code §1001.202.
§131.1.Purpose and Duties.
(a)
The board is statutorily empowered to regulate the practice
of engineering in Texas.
(b)
The board shall promulgate and adopt rules as authorized
and required by statute, which are necessary for the performance of its duties.
Such rules shall establish standards of conduct and ethics for engineers,
ensure strict compliance with and enforcement of the provisions of the Act,
ensure uniform standards of practice and procedure, including fees for services,
and provide for public participation, notice of the agency actions, and a
fair and expeditious determination of causes before the board.
(c)
The board may act directly under its statute and rules
or through the executive director or a committee of the board.
(d)
Pursuant to the Texas Engineering Practice Act, the board
is responsible for policy-making decisions and the executive director is responsible
for the agency's management decisions.
§131.3.Headquarters of the Board.
The headquarters and administrative offices of the Texas Board of Professional
Engineers (board) shall be located at 1917 IH 35 South, Austin, Texas 78741-3702.
§131.5.Board Seal.
The seal of the board shall be an embossed circular seal consisting
of two concentric circles. The diameter of the inner circle shall be approximately
60% of the size of the outer circle which shall be the official seal of the
State of Texas. The area between the two circles shall contain the wording
"Texas Board of Professional Engineers." The executive director shall be the
custodian of the seal. The seal may be reproduced in other sizes provided
the dimensions remain proportionate.
§131.7.Organization of the Board.
(a)
In accordance with Texas Occupations Code, §§1001.101
through 1001.112, the board shall consist of members appointed by the Governor
with the advice and consent of the Senate.
(b)
The governor shall designate a member of the board as the
presiding officer of the board to serve in that capacity at the will of the
governor. The presiding officer shall be the Chair of the board.
(c)
The terms of board members shall be six years in length
and shall be staggered so that the terms of not more than one-third of the
members shall expire in a single calendar year. The terms of two members who
are practicing licensed engineers and one member who is a representative of
the public expire on August 31 of each odd-numbered year. Upon completion
of a term, a member may continue to serve until a successor has been appointed.
A member may be reappointed to successive terms at the discretion of the Governor.
(d)
The board shall elect from its own membership a vice chair
and a secretary. These officers shall serve from September 1 through August
31 and shall be elected annually at a board meeting prior to September 1.
(e)
The board as a whole may act as an executive committee.
(f)
Five members of the board shall constitute a quorum.
(g)
The board may transact official business only when in session
with a quorum present and shall not be bound in any way by any statement or
action on the part of any individual member except when such statement or
action is in pursuance of specific instructions of the board. No order or
decree shall be adopted by the board except in open meeting and in accordance
with the Texas Government Code, Chapter 551.
§131.9.Officers of the Board.
(a)
Chair of the Board. The presiding officer shall be the
chair of the board. When present, the chair shall preside at all meetings.
The chair shall appoint such committees required by rule and may appoint any
additional committees as needed. The chair shall perform all other duties
usually pertaining to the office of chair and permitted by law, and shall
have the authority to delegate any of those duties to the executive director.
The chair shall have the authority to review the performance of the executive
director and initiate alterations in the executive director's job requirements
or employment status. The chair shall select and determine the agenda for
meetings of the full board and may delegate that authority to the executive
director.
(b)
Vice Chair of the Board. The vice chair, in the absence
of the chair, shall perform the duties of the chair as specified in subsection
(a) of this section. In the event the office of the chair shall become vacant,
the vice chair shall serve until a new presiding officer has been appointed
by the governor.
(c)
Pro Tem Chair of the Board. In the absence of the chair
and vice chair from a regular or special meeting of the board, the remaining
members, providing there is a quorum, shall elect a chair who shall serve
until the conclusion of the meeting or until the arrival of the chair or vice
chair.
(d)
Secretary of the Board. The secretary of the board is charged
with carrying out the duties prescribed in the Act, §§1001.109,
1001.211, and 1001.308 and may delegate those duties prescribed in §§1001.109
and 101.211 to the executive director.
§131.11.Board Member Responsibilities and Duties.
(a)
Each board member shall meet and maintain the qualifications
for board membership as set by §§1001.201 and 1001.202 of the Act.
(b)
Each board member appointed after September 1, 2003 shall
attend a board member training prior to attendance and participation in a
board or committee meeting.
(c)
A board member is subject to the provisions of §1001.106
of the Act relating to grounds for removal.
(d)
In order to be reimbursed for travel for other than travel
to board and committee meetings, a board member shall have the approval of
the chair or full board or executive director.
(e)
Each member of the board shall receive per diem as provided
by law for each day that the member engages in the business of the board and
will be reimbursed for travel expenses incurred in accordance with the state
of Texas and board's travel policies.
(f)
A board member who participated in the investigation of
a complaint or in informal settlement negotiations regarding the complaint:
(1)
may not participate in the discussion of or vote on the
matter at a board meeting related to the complaint; and
(2)
shall state at the meeting and record in the minutes why
the member is prohibited from participating in the discussion of or voting
on the matter.
(g)
Board members shall submit an activity report that shall
document the board member's activities related to the board that have occurred
since the previous activity report was submitted including activities that
occurred in a meeting that was noticed and held in accordance with the open
meeting requirements of Chapter 551 of the Texas Government Code.
§131.13.Vacancies in the Board.
If for any reason a vacancy shall occur in the board, the chair shall
prepare a notice to the governor asking for the appointment of a new member
to fill the unexpired term. If the vacancy shall occur in offices of vice
chair or secretary of the board, the board shall elect a new officer to serve
for the remainder of the unexpired term from its own membership at the first
regular or special meeting following the vacancy.
§131.15.Committees.
(a)
The board chair shall appoint the following standing committees
as stated in paragraphs (1)-(5) of this subsection, composed of four board
members at least one of whom is a public member. A committee quorum shall
consist of three members. Committee appointments shall be made by the chair
for a term of two years but may be terminated at any point by the chair. Committee
members may be re-appointed at the discretion of the chair. The board chair
shall appoint a committee chair.
(1)
General Issues Committee. The committee shall meet no less
than twice each fiscal year to evaluate issues and possibly develop proposed
actions for the full board on issues of importance to the board and the profession.
Such issues might include engineering ethics, professionalism in practice,
legislation, board management, and engineering business issues. The vice chair
of the board shall be a committee member and shall chair the committee during
his or her elected term.
(2)
Licensing Committee. The committee shall meet no less than
twice each fiscal year to evaluate issues and possibly develop proposed actions
for the full board on licensing issues. The committee may participate in activities
such as evaluating rules concerning licensing of engineers; evaluating education
and continuing education program requirements; conducting personal interviews
of applicants; evaluating applications; participating in national and international
engineering licensing activities on the board's behalf; providing general
guidance to the executive director on licensing issues; and evaluating any
other issue indirectly or directly relating to engineering licensing.
(3)
Compliance and Enforcement Committee. The committee shall
meet no less than twice each fiscal year to evaluate issues and possibly develop
proposed actions for the full board on enforcement issues. The committee may
participate in activities such as evaluating rules concerning enforcement
of the Act; reviewing the progress of major enforcement cases or groups of
cases; suggesting sanctions for violations of the Act; participation in national
and international engineering law enforcement activities on the board's behalf;
providing general guidance to the executive director on enforcement issues;
and evaluating any other issue indirectly or directly relating to engineering
law enforcement.
(4)
Policy Advisory Opinion Committee. The committee shall
meet as required to review, prepare and recommend policy advisory opinions
regarding the interpretation or application of the Act and to perform related
activities pursuant to board approval. The committee shall follow the process
and procedures for issuing advisory opinions as prescribed in Subchapter G:
Advisory Opinions of this chapter.
(5)
Legislative Issues Committee. The committee shall meet
at least twice a year to consider legislative matters that may affect the
practice of engineering in the state. Pursuant to the Chapter 556, Texas Government
Code, the committee shall not lobby or strive to influence legislation regarding
the practice of engineering but meet to consider board responses to pending
legislation and assist in answering related inquiries from the Texas Legislature,
Governor or other state agency or governmental entity during the legislative
session. The committee shall report to the full board on actions and activities
addressed on behalf of the board.
(b)
Nominating Committee. The board's chair shall appoint a
nominating committee consisting of the chair and two board members to nominate
candidates for the offices of vice chair and secretary. The nominating committee
shall meet prior to the regular board meeting prior to September 1 of each
year to allow election of officers at that meeting.
(c)
Ad Hoc Committees. The board and its committees may appoint
temporary committees to assist in resolving particular engineering issues.
(1)
The board's chair, board, and/or committee chair may appoint
ad hoc committees composed of committee members, other board members, and
other persons to address particular issues.
(2)
The chair or committee chair shall establish a specific
purpose and duration for each ad hoc committee. Ad hoc committees previously
appointed may be reappointed in part or in whole for a specific purpose and
duration.
(3)
Ad hoc committees shall be limited to investigating and
evaluating issues assigned, and making a report to the full board or appropriate
standing committee with recommendations concerning possible board positions,
actions or inactions. The board or appropriate standing committee shall receive
the report of each ad hoc committee publicly, and shall recommend appropriate
action, if any, to the full board.
(d)
Advisory Committees. The chair or board may convene the
following committees in an advisory capacity:
(1)
Educational. The educational advisory committee shall consist
of the deans of the colleges or the department heads or other program administrator
for those institutions without a college of engineering or the representatives
for the deans or department heads and other invited representatives of the
academic community. The committee shall meet as needed and submit any reports
or recommendations to the Licensing Committee. If requested by the advisory
committee, the executive director or staff may act as the secretary for the
meeting.
(2)
Industry. The industry advisory committee shall consist
of practicing engineers from various disciplines and functions in engineering
including, but not limited to, consulting, manufacturing, regulatory, research,
and utility service. The committee shall meet as needed and submit any reports
or recommendations to the General Issues Committee. If requested by the advisory
committee, the executive director or staff may act as the secretary for the
meeting.
(e)
Joint Advisory Committee on Practice of Engineering and
Architecture. Pursuant to §1001.216 of the Act, the advisory committee
shall work to resolve issues that result from the overlap between activities
that constitute the practice of engineering and those that constitute the
practice of architecture. The chair shall appoint three members of the board
and one practicing architectural engineer to the Joint Advisory Committee
on Practice of Engineering and Architecture.
(1)
Members of the advisory committee serve staggered six-year
terms with the terms of one or two members appointed by the board expiring
each odd-numbered year.
(2)
The advisory committee shall meet at least twice a year.
(3)
The advisory committee shall assist each agency in protecting
the public rather than advancing the interests of either agency or the profession
it regulates.
(4)
The advisory committee shall issue advisory opinions to
the board and to the Texas Board of Architectural Examiners on matters relating
to the practice of engineering and the practice of architecture, including:
(A)
opinions on whether certain activities constitute the practice
of engineering or the practice of architecture;
(B)
specific disciplinary proceedings initiated by either agency;
and
(C)
the need for persons working on particular projects to
be licensed by the board or registered by the Texas Board of Architectural
Examiners.
(5)
If the advisory committee issues an advisory opinion to
the board and/or the Texas Board of Architectural Examiners on a matter, that
agency shall notify the committee of the final action taken with regard to
the matter. The advisory committee shall consider the action taken by the
agency on the matter in any advisory opinion subsequently issued by the committee
on a related matter.
(6)
The board and the Texas Board of Architectural Examiners
shall enter into a memorandum of understanding regarding the advisory committee
that includes the composition and purpose of the committee.
(f)
Committee actions. The actions of the committees are recommendations
only and are not binding until ratification by the board at a regularly scheduled
meeting or if authorized by rule.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on February 9, 2004.
TRD-200400840
Victoria J.L. Hsu, P.E.
Executive Director
Texas Board of Professional Engineers
Earliest possible date of adoption: March 21, 2004
For further information, please call: (512) 440-7723
22 TAC §§131.31, 131.33, 131.35
The new rules are proposed pursuant to the Texas Engineering
Practice Act, Occupations Code §1001.202, which authorizes the board
to make and enforce all rules and regulations and bylaws consistent with the
Act as necessary for the performance of its duties, the governance of its
own proceedings, and the regulation of the practice of engineering in this
state.
The following are the statutes, articles, or codes affected by the proposed
new rules:
Texas Administrative Code, Title 22, Part 6 Texas Board of Professional
Engineers, Chapter 131: Organization and Administration - Occupations Code §1001.202.
§131.31.Executive Director.
(a)
The executive director shall be employed by the board to
be the administrator of the agency.
(b)
The executive director shall be a licensed professional
engineer, and shall faithfully execute all directives of the Texas Board of
Professional Engineers that are within the scope of the board's legal authority.
(c)
The duties of the executive director shall be to administer
and enforce the applicable law, to assist in conducting meetings of the board,
and to carry out other responsibilities as assigned by the board. The executive
director shall have sole authority to employ a staff within the budget authorized;
perform all supervisory functions including employee evaluations, promotions,
disciplinary actions and terminations; and develop and implement all agency
policies and procedures concerning the operation of the agency office. The
duties imposed on the executive director under this section may be executed
through board staff.
(d)
The executive director shall be evaluated by the chair
as needed. The executive director serves at the pleasure of the board and
employment may be terminated at any time by a negative vote of confidence
from a simple majority of the full board.
§131.33.Career Ladder.
The agency career ladder program and guidelines shall be maintained
by the executive director or executive director's designee in the agency employee
handbook.
§131.35.Employee Training.
(a)
Pursuant to the State Employees Training Act, Section 656
of the Texas Government Code, the board may provide training and educational
programs for its administrators and employees as a part of staff development
and continuing education. These programs shall be offered in order for the
staff to keep abreast of changes in technologies, legal developments, human
resource issues, and to further enhance the employees' knowledge, skills,
and abilities, and to provide continuing professional competency education
for the engineering staff members.
(b)
Employees may be approved to attend workshops, seminars,
conferences, and other special programs or activities that directly benefit
the employee and the agency. The approval decision shall be made in advance
and shall be at the discretion of the executive director. Any membership fees,
dues, and travel associated with an employee's attendance at these functions
shall be paid for by the board as long as there is a direct benefit to the
board and the activity is part of the agency's official business.
(c)
Financial assistance may be awarded for some or all of
the following expenses:
(1)
tuition, including correspondence courses that fulfill
degree, professional or General Equivalence Diploma (GED) program plan requirements;
(2)
degree plan pertinent College Level Equivalency Program
examinations if the employee receives college credit or waiver of course requirements;
(3)
degree plan pertinent Life Experience Assessments if the
employee receives college credit; and
(4)
required fees, including lab fees, and books.
(d)
Financial assistance granted under this program shall not
exceed $900 per year per employee
(e)
To be eligible for consideration for training and education
assistance, an employee must:
(1)
be in good standing with the board;
(2)
meet and continue to meet all performance expectations;
(3)
have at least 12 months of service with the board or state;
and
(4)
seek enrollment and participation in a field of study that
relates to assigned or prospective job duties, a professional development
requirement, a GED program or a higher education degree plan.
(f)
To maintain eligibility in a degree program, an employee
must be enrolled in an institution of higher education in a course of instruction
leading toward a degree and maintain a passing grade point average.
(g)
To maintain eligibility in a GED program an employee must
be enrolled each semester in a GED program and maintain a passing grade point
average.
(h)
The employee must attend and satisfactorily complete the
education and training, including passing tests or other types of performance
measures where required.
(i)
Each semester an employee must provide grade reports to
verify that full credit was received for courses taken.
(j)
An employee must provide fee receipts for courses to be
taken and must promptly report outside funds such as grants, scholarships
or other financial aid received. The executive director may adjust the assistance
provided to the employee at any time for any reason.
(k)
Any employee who has received assistance under this program
shall repay the entire amount of the assistance received if the employee voluntarily
leaves the board's employ within six months of concluding an educational program
for which assistance was granted.
(l)
The executive director may require a written agreement
between the board and the employee describing the terms and conditions of
the education or training assistance to be provided by the board. The board
may impose such terms and conditions as may be reasonable and appropriate,
including but not limited to, specifying the circumstances under which the
assistance may be terminated and the employee may be required to repay the
amount of assistance.
(m)
The executive director will reconsider each employee's
participation in the Education Assistance Program each semester.
(n)
Assistance may be terminated and the employee may be required
to repay all funds received from the institution if the employee:
(1)
withdraws from the institution;
(2)
is removed or prohibited from attending the institution;
(3)
fails to comply with one or more terms of the assistance
agreement, including but not limited to, additional terms concerning termination
and repayment of assistance; or
(4)
is terminated by the board during the duration of the assistance
agreement.
(o)
The board may pay the license fees of employees who are
required to provide services as part of their duty assignments. The board
will not pay for driver's license fees or other license fees where the license
can be considered a basic personal resource.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on February 9, 2004.
TRD-200400867
Victoria J.L. Hsu, P.E.
Executive Director
Texas Board of Professional Engineers
Earliest possible date of adoption: March 21, 2004
For further information, please call: (512) 440-7723
22 TAC §§131.41, 131.43, 131.45, 131.47, 131.49, 131.51, 131.53
The new rules are proposed pursuant to the Texas Engineering
Practice Act, Occupations Code §1001.202, which authorizes the board
to make and enforce all rules and regulations and bylaws consistent with the
Act as necessary for the performance of its duties, the governance of its
own proceedings, and the regulation of the practice of engineering in this
state.
The following are the statutes, articles, or codes affected by the proposed
new rules:
Texas Administrative Code, Title 22, Part 6 Texas Board of Professional
Engineers, Chapter 131: Organization and Administration - Occupations Code §1001.202.
§131.41.Open to the Public.
All meetings of the board and standing committees shall be held in
accordance with Chapter 551, Texas Government Code.
§131.43.Public Participation.
(a)
The board shall include "public comment" as a topic on
the agenda for each regularly scheduled board or committee meeting.
(b)
A person wishing to address the board about any subject
under the board's jurisdiction shall fill out a Public Comment form prior
to the start of the meeting and submit the form to the chair.
(c)
The chair will recognize those requests to address the
board during the "public comment" portion of a meeting.
(d)
A person may address the board regarding any issue related
to the jurisdiction of the board. The chair or executive director may impose
a time limit for those wishing to address or make a presentation to the board.
The allotted period for a person addressing the board may only be extended
by board vote and may not be extended by another person delegating, ceding,
passing or otherwise granting allotted comment time in lieu of addressing
the board.
(e)
The board may not comment or make a decision about a subject
not listed on the agenda except to reply with:
(1)
a statement of specific factual information in response
to the inquiry;
(2)
a recitation of existing policy in response to the inquiry;
or,
(3)
a proposal to place the subject on the agenda for a subsequent
board or committee meeting.
(f)
At least 20 days prior to a meeting, a person from the
general public may submit a written request to the chair, a committee chair,
or executive director for an item to be placed on the meeting agenda. The
executive director shall forward such requests to the chair or appropriate
committee chair. The chair or committee chair shall consider the request but
has the discretion to include the requested item on the agenda or to only
allow for comment as described in subsections (a) through (e) of this section.
§131.45.Regular Board Meetings.
The board shall hold a minimum of two regular meetings each calendar
year. Board meetings shall take place at the headquarters of the board or
at other places as designated by the board.
§131.47.Special Board Meetings.
Special meetings may be called by the chair or upon the request of
at least three board members.
§131.49.Rules of Order.
Conduct of board meetings shall be guided by Roberts' Rules of Order
Newly Revised; however, no board action shall be invalidated by reason of
failure to strictly comply with those rules.
§131.51.Order of Business.
(a)
In conjunction with the chair of the board or committee
chair as applicable, the executive director shall prepare a written agenda
for each board and committee meeting and distribute a copy of the agenda to
all board members and shall post notice of the meeting with the secretary
of state in compliance with Chapter 551, Texas Government Code.
(b)
At least 20 days prior to a meeting, any board member may
request the chair or committee chair to place an item on the meeting agenda.
It is within the chair's or committee chair's discretion to determine the
items to be placed on the agenda; however, upon the request of at least three
board members, the chair or committee chair shall place an item on the agenda.
§131.53.Minutes.
In addition to the distribution required by law, copies of the official
minutes of each meeting of the board shall be distributed to such persons
as the board may direct and to such private citizens as may make a formal
written request. An official copy of all board minutes shall remain on file
in the board office, available to any citizen desiring to examine them. The
board may elect to make recordings of the board meetings and shall make such
recordings available for review at the board headquarters.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on February 9, 2004.
TRD-200400868
Victoria J.L. Hsu, P.E.
Executive Director
Texas Board of Professional Engineers
Earliest possible date of adoption: March 21, 2004
For further information, please call: (512) 440-7723
22 TAC §131.61, §131.63
The new rules are proposed pursuant to the Texas Engineering
Practice Act, Occupations Code §1001.202, which authorizes the board
to make and enforce all rules and regulations and bylaws consistent with the
Act as necessary for the performance of its duties, the governance of its
own proceedings, and the regulation of the practice of engineering in this
state.
The following are the statutes, articles, or codes affected by the proposed
new rules:
Texas Administrative Code, Title 22, Part 6 Texas Board of Professional
Engineers, Chapter 131: Organization and Administration - Occupations Code §1001.202.
§131.61.Financial.
(a)
The fiscal year of the board shall begin September 1 and
close the following August 31. The fiscal year shall be designated to correspond
with the calendar year in which it closes.
(b)
The operating budget and fees schedule shall be prepared
by the executive director and submitted to the board for approval.
(c)
Pursuant to the requirements of Chapter 2161.003 of the
Government Code, the board adopts the rules of the Texas Building and Procurement
Commission (formerly the General Services Commission) relating to the Historically
Underutilized Business (HUB) Program and stated at 1 Texas Administrative
Code, Part V, Chapter 111, Subchapter B, §§111.11 - 111.16.
(d)
The board adopts by reference the rules of the Office of
the Attorney General in Title 1, Part 3, Texas Administrative Code, Chapter
68 relating to Negotiation and Mediation of Certain Contract Disputes to comply
with the requirements of Texas Government Code, Chapter 2260, §2260.052(c).
The rules set forth a process to permit parties to structure a negotiation
or mediation in a manner that is most appropriate for a particular dispute
regardless of contract's complexity, subject matter, dollar amount, or method
and time of performance.
§131.63.Self-Directed Semi-Independent Agency Project Act.
The Board shall adopt, monitor and update policies as required to comply
with the Self-Directed Semi-Independent Agency Project Act (Texas Civil Statutes,
Title 132, Article 8930).
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on February 9, 2004.
TRD-200400869
Victoria J.L. Hsu, P.E.
Executive Director
Texas Board of Professional Engineers
Earliest possible date of adoption: March 21, 2004
For further information, please call: (512) 440-7723
22 TAC §131.71, §131.73
The new rules are proposed pursuant to the Texas Engineering
Practice Act, Occupations Code §1001.202, which authorizes the board
to make and enforce all rules and regulations and bylaws consistent with the
Act as necessary for the performance of its duties, the governance of its
own proceedings, and the regulation of the practice of engineering in this
state.
The following are the statutes, articles, or codes affected by the proposed
new rules:
Texas Administrative Code, Title 22, Part 6 Texas Board of Professional
Engineers, Chapter 131: Organization and Administration - Occupations Code §1001.202.
§131.71.National Council of Examiners for Engineering and Surveying.
(a)
The board may affiliate with the National Council of Examiners
for Engineering and Surveying (NCEES). Each board member may become a member
of the council and the executive director and other staff members designated
by the board may be associate members of the council.
(b)
The board may select and contract with former board members
to serve as emeritus members to NCEES meetings to participate in Council activities
and represent board interests in national professional engineering issues.
The emeritus members to NCEES may attend board and committee meetings to serve
in an advisory capacity and shall present board actions to NCEES as directed
by the board.
§131.73.Memoranda of Understanding
The board may enter into a memorandum of understanding with each state
agency or governmental entities that licenses professions related to engineering
to coordinate the jurisdictional requirements that may be in conflict or mirrored
by that entity.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on February 9, 2004.
TRD-200400870
Victoria J.L. Hsu, P.E.
Executive Director
Texas Board of Professional Engineers
Earliest possible date of adoption: March 21, 2004
For further information, please call: (512) 440-7723
22 TAC §§131.81, 131.83, 131.85
The new rules are proposed pursuant to the Texas Engineering
Practice Act, Occupations Code §1001.202, which authorizes the board
to make and enforce all rules and regulations and bylaws consistent with the
Act as necessary for the performance of its duties, the governance of its
own proceedings, and the regulation of the practice of engineering in this
state.
The following are the statutes, articles, or codes affected by the proposed
new rules:
Texas Administrative Code, Title 22, Part 6 Texas Board of Professional
Engineers, Chapter 131: Organization and Administration - Occupations Code §1001.202.
§131.81.Definitions.
In applying the Texas Engineering Practice Act and the board rules,
the following definitions shall prevail unless the word or phrase is defined
in the text for a particular usage. Singular and masculine terms shall be
construed to include plural and feminine terms and vice versa.
(1)
ABET--Accreditation Board for Engineering and Technology
(2)
Act--The Texas Engineering Practice Act, Chapter 1001,
Texas Occupations Code.
(3)
Advisory Opinion--A statement of policy issued by the board
that provides guidance to the public and regulated community regarding the
board's interpretation and application of Chapter 1001, Texas Occupations
Code, referred to as the Texas Engineering Practice Act "Act" and/or board
rules and that do not have the force and effect of law.
(4)
Agency or Board--Texas Board of Professional Engineers.
(5)
Applicant--A person applying for a license to practice
professional engineering or a firm applying for a certificate of registration
to offer or provide professional engineering services.
(6)
Application--The forms, information, and fees necessary
to obtain a license as a professional engineer or a certificate of registration
for a firm.
(7)
Certificate of Registration--The annual certificate issued
by the board to a firm offering or providing professional engineering services
to the public in Texas.
(8)
Complainant--Any party who has filed a complaint with the
board against a person or entity subject to the jurisdiction of the board.
(9)
Contested case--A proceeding, including but not restricted
to rate making and licensing, in which the legal rights, duties, or privileges
of a party are to be determined by an agency after an opportunity for adjudicative
hearing pursuant to the Administrative Procedure Act, Chapter 2001, Texas
Government Code.
(10)
Direct supervision--Critical watching, evaluating, and
directing of engineering activities with the authority to review, enforce,
and control compliance with all engineering design criteria, specifications,
and procedures as the work progresses. Direct supervision will consist of
an acceptable combination of: exertion of significant control over the engineering
work, regular personal presence, reasonable geographic proximity to the location
of the performance of the work, and an acceptable employment relationship
with the supervised persons. Engineers providing direct supervision of engineering
under the Act, §1001.405(f), shall be personally present during such
work.
(11)
EAC/ABET--Engineering Accreditation Commission of the
Accreditation Board for Engineering and Technology
(12)
EAOR number--An engineering advisory opinion request file
number assigned by the executive director to a pending advisory opinion in
accordance with this chapter
(13)
Engineering--The profession in which a knowledge of the
mathematical, physical, engineering, and natural sciences gained by education,
experience, and practice is applied with judgment to develop ways to utilize,
economically, the materials and forces of nature for the benefit of mankind.
(14)
Firm--Any entity that engages or offers to engage in the
practice of professional engineering in this state. This includes sole proprietorships,
firms, co-partnerships, corporations, partnerships, or joint stock associations.
(15)
Gross negligence--Any willful or knowing conduct, or pattern
of conduct, which includes but is not limited to conduct that demonstrates
a disregard or indifference to the rights, health, safety, welfare, and property
of the public or clients. Gross negligence may result in financial loss, injury
or damage to life or property, but such results need not occur for the establishment
of such conduct.
(16)
Incompetence--An act or omission of malpractice which
may include but is not limited to recklessness or excessive errors, omissions
or failures in the license holder's record of professional practice; or an
act or omission in connection with a disability which includes but is not
limited to mental or physical disability or addiction to alcohol or drugs
as to endanger health, safety and interest of the public by impairing skill
and care in the provision of professional services.
(17)
License--The legal authority granting the holder to actively
practice engineering upon the payment of the annual renewal fee. Also, a certificate
issued by the board showing such authority.
(18)
License Holder--Any person whose license to practice engineering
is current.
(19)
Licensure--The granting of an original certificate and
license to an individual.
(20)
Misconduct--The violation of any provision of the Texas
Engineering Practice Act and board rules. A conviction of a felony or misdemeanor
that falls under the provisions of Texas Occupations Code, Chapter 53, will
also be misconduct under the Texas Engineering Practice Act.
(21)
NCEES--National Council of Examiners for Engineering and
Surveying.
(22)
Party--Each person or agency named or admitted as a party
to a proceeding under the Administrative Procedure Act.
(23)
Person--Any individual, firm, partnership, corporation,
association, governmental subdivision, or public or private organization of
any character other than an agency.
(24)
Petitioner--Any party requesting the adoption of a rule
by the board.
(25)
Pleading--Written allegations filed by parties concerning
their respective claims.
(26)
Professional engineering--Professional service which may
include consultation, investigation, evaluation, planning, designing, or direct
supervision of construction, in connection with any public or private utilities,
structures, buildings, machines, equipment, processes, works, or projects
wherein the public welfare, or the safeguarding of life, health, and property
is concerned or involved, when such professional service requires the application
of engineering principles and the interpretation of engineering data.
(27)
Professional engineering services--Services which must
be performed by or under the direct supervision of a licensed engineer and
which meet the definition of the practice of engineering as defined in the
Act, §1001.003. A service shall be conclusively considered a professional
engineering service if it is delineated in that section; other services requiring
a professional engineer by contract, or services where the adequate performance
of that service requires an engineering education, training, or experience
in the application of special knowledge or judgment of the mathematical, physical
or engineering sciences to that service shall also be conclusively considered
a professional engineering service.
(28)
Protestant--Any party opposing an application or petition
filed with the board.
(29)
Recognized institution of higher education--an institution
of higher education as defined in Section 61.003, Education Code; or in the
United States, an institution recognized by one of the six regional accrediting
associations, specifically, the New England Association of Schools and Colleges,
the North Central Association Commission on Accreditation and School Improvement,
the Northwest Association of Schools and Colleges, the Southern Association
of Colleges and Schools, the Western Association of Schools and Colleges,
or the Middle States Association of Colleges & Schools; or, outside the
United States, an institution recognized by the Ministry of Education or the
officially recognized government education agency of that country.
(30)
Respondent--Any party against whom any complaint has been
filed with the board.
(31)
Responsible charge--An earlier term synonymous with the
term "direct supervision"; the term is still valid and may be used interchangeably
with "direct supervision" when necessary.
(32)
Responsible supervision--An earlier term synonymous with
the term "direct supervision"; the term is still valid and may be used interchangeably
with "direct supervision" when necessary.
(33)
TAC/ABET--Technology Accreditation Commission of the Accreditation
Board for Engineering and Technology
§131.83.Requests for Information.
The executive director shall be the official custodian of all board
records and shall process and respond to all requests for information in the
manner prescribed by Chapter 552, Texas Government Code.
§131.85.Board Rules Procedures.
(a)
Amendments, Deletions, and Additions of Rules. Proposed
amendments, deletions, or additions to the board rules of practice and procedure
may be submitted by the staff or any board member. Board action to accept
or amend the proposal shall require a majority vote when a quorum is present
at a meeting. A proposal or amended proposal, as accepted by the board, can
be promulgated as an amendment, deletion, or addition to board rules by following
the procedures set out in §§2001 and 2002, Government Code.
(b)
Petition for Adoption of Rules. Any interested person can
request the board to adopt, delete, or amend a rule by filing a petition with
the executive director, accompanied by any fee required by statute or board
rules. The petition must be filed with the executive director at least 30
days and not more than 60 days prior to a regular board meeting at which board
action will be taken. Such a petition will include, but need not be limited
to, the following.
(1)
Identity information. Full name and complete mailing address
and telephone number of the petitioner on whose behalf the petition is filed.
(2)
Reference. Reference to the rule which it is proposed to
make, change or amend, or delete, so that it may be identified and prepared
in a manner to indicate the word, phrase, or sentence to be added, changed,
or deleted from the current text, if any. The proposed rule should be presented
in the exact form in which it is to be published, adopted, or promulgated.
(3)
A suggested effective date. The desired effective date
should be stated.
(4)
Justification. Justification for the proposed action in
narrative form with sufficient particularity to fully inform the board and
any interested party of the facts upon which the petitioner relies, including
the statutory authority for the promulgation of the proposed rule.
(5)
Desired effect of proposal. Include a brief statement detailing
the desired effect to be achieved by the proposed rule, change, or amendment
or deletion.
(6)
Summary. A concise summary of the proposed rule, change,
or amendment.
(7)
Signatures. Signatures on the petition of the petitioner
and/or the attorney or representative of the petitioner.
(c)
Petition Decision by Board. Within 60 days after submission
of a petition requesting the adoption of a rule the board either shall deny
the petition in writing, stating its reasons for the denial, or shall initiate
rule making proceedings in accordance with §131.32 of this title (relating
to Amendments, Deletions, and Addition of Rules) and by law.
(d)
Suspension of Rules. In any case in which a public emergency
or imperative public necessity so requires, the board may suspend the operation
of these sections to the extent authorized by law.
(e)
Invalid Portions and Saving Provisions.
(1)
If any subcategory, rule, section, subsection, sentence,
clause, or phrase of these rules is for any reason held invalid, such decision
shall not affect the validity of the remaining portions of these sections.
The board hereby declares that it would have adopted these sections and such
subcategories, rules, sections, subsections, sentences, clauses, or phrases
thereof irrespective of the fact that any one or more of the subcategories,
rules, sections, subsections, sentences, clauses, or phrases be declared invalid.
(2)
Since individual board rules are adopted, changed, or deleted
periodically, each rule herein will apply only to acts occurring on or after
the effective date of the rule. An act occurring before the effective date
of one or more of these rules will be governed by the rules existing before
the effective date, which rules are continued in effect for this purpose as
if these rules were not in force. Any proceeding pending before the board
on the effective date of one or more of these rules is governed by the rules
existing before the effective date of these rules, which rules are continued
in effect for this purpose as if these rules were not in force.
(3)
If there is any conflict between the agency's rules and
statutory provisions, and the rules cannot be harmonized with the statute
in a timely manner, the statutory provisions shall control. The board shall
issue a statement describing the irregularity, expected schedule for correction,
and necessary action by an effected party.
(f)
Effective Date. The effective date of each rule or subdivision
of each rule shall be that date published as the effective date of the rule
or subdivision of the rule in the Texas Register as a result of the rule making
procedures set out in Chapters 2001 and 2002, Texas Government Code.
(g)
Rules Identification and Format. The board reserves the
right to revise the format of these rules of practice and procedure to comply
with statutory requirements, and such required revision shall not invalidate
any portion or change the effective date of the rules of practice and procedure
as adopted by the board.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on February 9, 2004.
TRD-200400871
Victoria J.L. Hsu, P.E.
Executive Director
Texas Board of Professional Engineers
Earliest possible date of adoption: March 21, 2004
For further information, please call: (512) 440-7723
22 TAC §§131.101, 131.103, 131.105, 131.107, 131.109, 131.111
The new rules are proposed pursuant to the Texas Engineering
Practice Act, Occupations Code §1001.202, which authorizes the board
to make and enforce all rules and regulations and bylaws consistent with the
Act as necessary for the performance of its duties, the governance of its
own proceedings, and the regulation of the practice of engineering in this
state.
The following are the statutes, articles, or codes affected by the proposed
new rules:
Texas Administrative Code, Title 22, Part 6 Texas Board of Professional
Engineers, Chapter 131: Organization and Administration - Occupations Code §1001.202.
§131.101.Subject of an Advisory Opinion.
The board will issue a written advisory opinion at the request of any
interested person or at its own initiative regarding an interpretation or
application of the Act and/or board rules that advises how the law applies
to a specified existing or hypothetical factual situation.
§131.103.Request for an Advisory Opinion.
(a)
A request for an advisory opinion shall describe a specified
factual situation. The facts specified may be real or hypothetical. To permit
the board to provide a complete response to the request, the requestor must
provide the following, as applicable:
(1)
requestor contact information,
(2)
affected section(s) of the Act and/or board rules,
(3)
description of the situation,
(4)
reason engineering advisory opinion is requested,
(5)
parties or stakeholders that will be affected by the opinion,
if known, and
(6)
any known, pending litigation involving the situation
(b)
A request for an advisory opinion shall be in writing.
A written request may be mailed, sent via electronic mail, hand-delivered,
or faxed to the board at the agency office.
§131.105.Board Initiated Opinion.
When a majority of the board determines that an opinion would be in
the public interest or in the interest of any person or persons within the
jurisdiction of the board, the board may on its own motion issue an advisory
opinion.
§131.107.Receipt, Review, and Processing of a Request.
(a)
The board, through the policy advisory opinion committee,
shall review all requests for advisory opinions.
(b)
Upon receipt of a request for an engineering advisory opinion,
executive director will date stamp the request, issue an EAOR tracking number,
and make a preliminary determination on the board's jurisdiction regarding
the request.
(c)
The executive director will review the request to determine
if the request can be answered by reference to the plain language of a statute
or a board rule, or if the request has already been answered by the board.
(d)
If the executive director determines the board has no jurisdiction
or the request can be answered by reference to a statute, board rule, or previous
opinion, the executive director shall prepare a written response for the policy
advisory opinion committee addressed to the person making the request that
cites the jurisdictional authority, the language of the statute or rule, or
the prior determination.
(e)
The policy advisory opinion committee shall review all
requests for advisory opinions and may:
(1)
approve jurisdiction and reference responses, as applicable,
and report a summary of these actions to the full board for ratification;
or
(2)
determine the request warrants an advisory opinion and
to proceed with developing an advisory opinion.
(f)
If a request warrants an advisory opinion, the policy advisory
opinion committee shall determine if further information is needed to draft
an advisory opinion. If additional information is needed, the committee shall
determine what information is needed and instruct the executive director to
obtain expert resources, hold stakeholder meetings, or perform other research
and investigation as necessary to provide the information required to draft
an advisory opinion and report back to the committee.
(g)
If during the process, the committee determines that the
request is one the board cannot answer, then the committee shall have the
executive director provide written notification to the person making the request
of the reason the request will not be answered and this response shall be
ratified by the full board.
(h)
When sufficient information exists, the policy advisory
opinion committee shall draft an engineering advisory opinion and post the
request and draft opinion on the agency website and in the Texas Register
for comments.
(i)
Draft opinions shall be posted for at least 30 days and
any interested person may submit written comments concerning an advisory opinion
request. Comments submitted should reference the EAOR number.
(j)
Upon completion of the comment period, the policy advisory
opinion committee shall consider any comments made and draft a final opinion
recommendation to be presented for review and adoption by the full board.
(k)
The full board shall review and adopt the engineering policy
advisory opinion or determine if further revisions are required and refer
the request back to the policy advisory opinion committee with guidance on
proceeding with completing the request.
(l)
Each final engineering advisory opinion adopted by the
full board shall be published in summary form in the Texas Register.
(m)
To reconsider or revise an issued advisory opinion, the
board shall process the reconsideration or revision as a new request and follow
the process as set forth in this section.
§131.109.Compilation of Advisory Opinions.
The board shall number and classify each final engineering advisory
opinion issued and shall annually compile a summary of advisory opinions in
a single reference document made available on the Internet. The executive
director may also publish and provide copies of advisory opinions in other
formats as may be in the public interest.
§131.111.Time Period.
The board shall respond to requests for an engineering advisory opinion
within 180 days after the date the board receives the written request or affirmatively
state the board's reason for not responding to the request.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on February 9, 2004.
TRD-200400872
Victoria J.L. Hsu, P.E.
Executive Director
Texas Board of Professional Engineers
Earliest possible date of adoption: March 21, 2004
For further information, please call: (512) 440-7723
The Texas Board of Professional Engineers proposes new rules in Texas
Administrative Code, Title 22, Part 6 Texas Board of Professional Engineers,
Chapter 133: Licensing. The proposed new rules are: Subchapter A, Engineer-in-Training, §133.1, §133.3,
Subchapter B, Professional Engineer Licenses, §133.11, §133.13,
Subchapter C, Application Requirements, §§133.21, 133.23, 133.25,
133.27, Subchapter D, Education, §§133.31, 133.33, 133.35, 133.37,
Subchapter E, Experience, §133.41, §133.43, Subchapter F, Reference
Documentation, §§133.51, 133.53, 133.55, Subchapter G, Examinations, §§133.61,
133.63, 133.65, 133.67, 133.69, 133.71, 133.73, 133.75, Subchapter H, Review
Process of Applications and License Issuance, §§133.81, 133.83,
133.85, 133.87, 133.89, 133.91, 133.93, 133.95, 133.97. The Board proposes
this action in conjunction with repeal of the existing Chapter 131: Practice
and Procedure. Also, the board proposes this action in conjunction with proposing
five new chapters to better organize the agency rules and procedures.
As a part of the rule review required by Chapter 2001, Texas Government
Code, the Board must review and update the existing rules. Since the statutory
references in the Board Rules must be changed to reflect the new designations
in the re-codified Act, nearly every rule must be re-proposed and adopted
with the new references. The Board has chosen this time to re-organize the
existing rules, incorporate new legislative requirements, and develop a framework
to aid in future rule expansion.
Since most of the content of the proposed rules are a repeat of the existing
rules with few changes, the board will highlight substantive changes by subchapter.
The rules proposed are not number consecutively and reserves numbers for future
expansion.
In the proposed Subchapter A: Engineer-in-Training, the board re-establishes
rules relating to engineer-in-training in one subsection prior to the rules
relating to professional engineer licensure. The board clarifies that transcripts
submitted since January 1, 2002 to qualify for this certification may be used
toward licensure requirements.
In the proposed Subchapter B: Profession Engineer Licenses, the board re-organizes
the existing rules related to types of licenses and includes new provisions
as allowed by statute for reciprocal licenses. The board summarizes and updates
the list of recognized disciplines of engineering and lists the disciplines
in which a national examination is supplied by the National Council of Examiners
of Engineering and Surveying.
In the proposed Subchapter C: Application Requirements, the board summarizes
the necessary elements of a license application and sets forth the licensure
procedures for a former license holder with an expired license, for an engineering
educator, and for a reciprocal license for a person holding a license from
a jurisdiction the board has determined to have substantially equivalent licensure
requirements.
In the proposed Subchapter D: Education, the board re-proposes the existing
rules related to acceptable educational credentials for licensure. The board
proposes to clarify and strengthen the board rules to not allow distance learning
degrees unless those degrees are obtained from a recognized institution of
higher education as defined in the board rules. In addition, the board proposes
to make allowances for those graduating from programs, such as those in Europe
and Canada, with sufficient technical content to gain licensure through the
examination process only.
In the proposed Subchapter E: Experience, the board re-proposes the existing
rules in a more organized arrangement.
In the proposed Subchapter F: Reference Documentation, the board re-proposed
the existing rules but reduces the number of references to three as allowed
by the new statutory requirements. In addition, the board proposes a new rule
to post a list of applicants for licensure on the website to allow for public
comment.
In the proposed Subchapter G: Examinations, the board re-proposes the existing
rules related to examinations requirements.
In the proposed Subchapter H: Review Process of Applications and License
Issuance, the board re-organizes the existing rules related to accepting and
reviewing applications. In the new rules, the board clarifies that by submitting
an application and fee, an applicant attests that he or she has reviewed the
requirements and is eligible for licensure and that no refunds will be granted.
The board further breaks down the existing rules into staff duties and board
duties. The new rules clarify the executive director's authority to deny licensure
without further board action for those who do not meet the minimum requirements
for licensure. Those applicants who are denied on this basis may follow the
rule procedures to appeal such a decision. The board also proposes to initiate
a one year waiting period between an applicant not passing the examination
in the allotted period or increased educational instruction before such an
applicant can re-apply. And, in this subchapter, the board proposes a formal
procedure for a license holder to add up to two additional branches to the
public board records.
In this rule restructuring process, the board has removed the existing
rules in the licensing division relating to renewal and firm registration
to new chapters on Compliance and Firms and Sole Proprietorships.
Victoria J. L. Hsu, P.E., Executive Director for the board, has determined
that for the first five-year period the new rules are in effect, there will
be minimal fiscal implications for state or local government as a result of
enforcing or administering the new rules since the substance of the proposed
rules comes from the current rules.
Ms. Hsu has also determined that for each year of the first five years
the new rules are in effect, the public benefit anticipated as a result of
enforcing and administering the proposed rules will be that the general public
and license holders of Texas will be able to follow more organized rules and
streamlined processes and procedures in the new rules. For those applicants
who have previously applied but failed to pass the examination in the allotted
period, these individuals will have a delay in the opportunity to re-apply
for licensure or may incur expense for additional formal classes in their
discipline. For the same period, there is no anticipated adverse economic
effect on small or micro-businesses.
Comments may be submitted, no later than 30 days after publication, to
Victoria J. L. Hsu, P.E., Executive Director, Texas Board of Professional
Engineers, 1917 IH 35 South, Austin, Texas 78741 or faxed to her attention
at (512) 442-1414.
Subchapter A. ENGINEER-IN-TRAINING
22 TAC §133.1, §133.3
The new rules are proposed pursuant to the Texas Engineering
Practice Act, Occupations Code §1001.202, which authorizes the board
to make and enforce all rules and regulations and bylaws consistent with the
Act as necessary for the performance of its duties, the governance of its
own proceedings, and the regulation of the practice of engineering in this
state.
The following are the statutes, articles, or codes affected by the proposed
new rules.
Texas Administrative Code, Title 22, Part 6 Texas Board of Professional
Engineers, Chapter 133: Licensing - Occupations Code §1001.202.
§133.1.Engineer-in-Training Designation.
Individuals who meet the educational requirements of §1001.302(a)(1)
of the Act and have successfully passed the examination on the fundamentals
of engineering are eligible to apply for engineer-in-training certification.
This certification does not entitle an individual to practice as a professional
engineer.
§133.3.Engineer-in-Training Application and Certification.
(a)
To become enrolled as an Engineer-in-Training (EIT), an
individual must:
(1)
submit an EIT application,
(2)
submit an official transcript in accordance with §133.33
or §133.35 of this chapter (relating to Proof of Educational Qualifications),
and
(3)
pay the fee as established by the board.
(b)
A certificate as an engineer-in-training expires eight
years from the date of issuance. Although the certificate has an expiration
date, the records of the board will indicate that an individual has passed
the Fundamentals of Engineering examination and these records will be maintained
in the file indefinitely and will be made available as requested by the individual
or another licensing jurisdiction.
(c)
The certificate may be renewed upon payment of the EIT
certification fee established by the board.
(d)
Effective January 1, 2002, official transcripts will be
kept on file and an EIT may request its use when filing the professional engineer
application.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on February 9, 2004.
TRD-200400873
Victoria J.L. Hsu, P.E.
Executive Director
Texas Board of Professional Engineers
Earliest possible date of adoption: March 21, 2004
For further information, please call: (512) 440-7723
22 TAC §133.11, §133.13
The new rules are proposed pursuant to the Texas Engineering
Practice Act, Occupations Code §1001.202, which authorizes the board
to make and enforce all rules and regulations and bylaws consistent with the
Act as necessary for the performance of its duties, the governance of its
own proceedings, and the regulation of the practice of engineering in this
state.
The following are the statutes, articles, or codes affected by the proposed
new rules.
Texas Administrative Code, Title 22, Part 6 Texas Board of Professional
Engineers, Chapter 133: Licensing - Occupations Code §1001.202.
§133.11.Types of Licenses.
The board shall receive, evaluate and process all applications for
licensure as a professional engineer received from individuals who assert
through the application process that they meet the minimum requirements of §1001.302
of the Act. The board shall deny a license to any applicant found not to have
met all requirements of the Act and board rules.
(1)
Standard. Unless requested by the applicant or license
holder, all licenses issued by the board shall be considered standard licenses.
Standard licenses are fully renewable annually until such time as the board
takes specific action to prevent renewal or provision of the Texas Engineering
Practice Act prevents renewal.
(2)
Reciprocal or Comity. Pursuant to §1001.311 of the
Act, the board has reviewed the licensing requirements of the jurisdictions
listed in this paragraph and has found them to be substantially equivalent
to the requirements in Texas. The board shall waive the application requirements
of §133.21 for an applicant who is licensed in good standing with at
least one of the jurisdictions listed in this paragraph and submits the documentation
as required in §133.27 (relating to Application for a Reciprocal or Comity
License) of this chapter. A reciprocal or comity license has full status of
and shall be issued as a standard license. The board reviewed and approved
jurisdictions for a reciprocal or comity license are:
(A)
Mexico, and
(B)
Provinces and Territories of Canada
(3)
Temporary. If the license holder requests that the license
be temporary, the holder's regular license shall be converted to temporary
status and may only be renewed twice. A temporary license holder shall be
subject to all other rules and legal requirements to which a holder of a regular
license is subject. The executive director shall be authorized to convert
a regular license to a temporary license at the time the regular license is
issued provided a request for such has been received.
(4)
Provisional. The board does not issue provisional licenses
at this time.
§133.13.Branches of Engineering.
Applicants shall indicate a primary branch of engineering under which
experience has been gained. The board recognizes the following list of disciplines
to assist in determining an applicant's competency although license holders
are not designated as a specific discipline engineer nor are restricted to
practice only in the branch designated. The board recognized branches are
listed below. Those branches in which a National Council of Examiners for
Engineering and Surveying (NCEES) examination is offered are followed by the
acronym (NCEES).
(1)
(AGR) agricultural (NCEES);
(2)
(BAR) architectural (NCEES);
(3)
(CHE) chemical (NCEES);
(4)
(CIV) civil (NCEES);
(5)
(CSE) control systems (NCEES);
(6)
(ELE) electrical, electronic, computer, communications
(NCEES);
(7)
(ENV) environmental (NCEES);
(8)
(FIR) fire protection (NCEES);
(9)
(IND) industrial (NCEES);
(10)
(MEC) mechanical (NCEES);
(11)
(MIN) mining/mineral (NCEES);
(12)
(MET) metallurgical (NCEES);
(13)
(MAN) manufacturing;
(14)
(NUC) nuclear (NCEES);
(15)
(PET) petroleum (NCEES);
(16)
(SDE) naval architecture/marine engineering (NCEES);
(17)
(STR) structural (NCEES);
(18)
(A/A) aeronautical/aerospace;
(19)
(BIO) biomedical;
(20)
(CRM) ceramic;
(21)
(ESG) engineering sciences/general;
(22)
(GEO) geological;
(23)
(OCE) ocean;
(24)
(TEX) textile;
(25)
(SAN) sanitary;
(26)
(SWE) software;
(27)
(OTH) other.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on February 9, 2004.
TRD-200400874
Victoria J.L. Hsu, P.E.
Executive Director
Texas Board of Professional Engineers
Earliest possible date of adoption: March 21, 2004
For further information, please call: (512) 440-7723
22 TAC §§133.21, 133.23, 133.25, 133.27
The new rules are proposed pursuant to the Texas Engineering
Practice Act, Occupations Code §1001.202, which authorizes the board
to make and enforce all rules and regulations and bylaws consistent with the
Act as necessary for the performance of its duties, the governance of its
own proceedings, and the regulation of the practice of engineering in this
state.
The following are the statutes, articles, or codes affected by the proposed
new rules.
Texas Administrative Code, Title 22, Part 6 Texas Board of Professional
Engineers, Chapter 133: Licensing - Occupations Code §1001.202.
§133.21.Application.
(a)
To be eligible for licensure as a professional engineer,
one must submit a completed application.
(b)
All persons must have passed the examination on the fundamentals
of engineering or be eligible for a waiver from the examination on the fundamentals
of engineering before submitting an application.
(c)
Applicants must speak and write the English language. Proficiency
in English may be evidenced by possession of an accredited bachelor of science
degree taught exclusively in English, or passage of the Test of English as
a Foreign Language (TOEFL) with a written score of at least 550 or a computer
score of at least 200 and passage of the Test of Spoken English (TSE) with
a score of at least 45, or other evidence such as significant academic or
work experience in English acceptable to the executive director.
(d)
Applicants for a license shall submit:
(1)
an application form as prescribed by the board and shall:
(A)
list his or her full, legal and complete name without abbreviations,
nicknames, or other variations of the full legal name. If applicable, the
applicant shall submit proof of a legal name change including but not limited
to a marriage certificate, passport, court documents, or nationalization documents
to substantiate other documentation submitted in the application. And,
(B)
list social security number, as required under the Texas
Family Code, §231.302;
(2)
current application fee as established by the board;
(3)
proof of educational credentials pursuant to §133.33
or §133.35 (relating to Proof of Educational Qualifications) including:
(A)
official transcript(s) of qualifying degree(s), and
(B)
commercial evaluation(s) of a non-accredited or non-approved
degree(s), as applicable;
(4)
supplementary experience record as required under §133.41
(relating to Supplementary Experience Records);
(5)
reference statements as required under §133.51 of
this chapter (relating to Reference Providers);
(6)
verification of passage of examination(s) from other jurisdictions
as required under §133.61(g) (relating to Engineering Examinations);
(7)
verification of a current license, if applicable;
(8)
a completed Texas Engineering Professional Conduct and
Ethics Examination as required under §133.63 (relating to Professional
Conduct and Ethics Examination);
(9)
scores of TOEFL and TSE, if applicable;
(10)
a statement describing criminal convictions, if any, together
with copies of any court orders or other legal documentation concerning the
criminal charges and the resolution of those charges; and
(11)
if applicable, written requests for waivers of the examinations
on the fundamentals and/or principles and practices of engineering, the TOEFL,
the TSE, or a commercial evaluation of non-accredited degrees and a statement
supporting the request(s).
(e)
At the time the application is filed, an applicant may
request in writing that any transcripts, reference statements, evaluations,
experience records or other similar documentation previously submitted to
the board be included in a current application; however, such documentation
may not meet the requirements of the board at the time of the subsequent application
and new or updated information may be required.
(f)
The National Council of Examiners for Engineering and Surveying
certifications may be accepted as verification of experience, an original
transcript, licenses held, and/or examinations taken. Other uses of the certification
may be granted by the executive director on a case-by-case basis.
(g)
Once an application is accepted, the fee shall not be returned,
and the application and all submissions shall become a permanent part of the
board records.
(h)
An applicant who is a citizen of another country and is
physically present in this country shall show sufficient documentation to
the board to verify the immigration status for the determination of their
eligibility for a professional license in accordance with the Personal Responsibility
and Work Opportunity Reconciliation Act of 1996.
§133.23.Applications from Former Texas License Holders.
(a)
A former license holder , whose original license has been
expired for two or more years and who meets the current requirements for licensure,
may apply for a new license.
(b)
A former license holder applying for a license under the
current law and rules must have the documentation requested in §133.21
(relating to Application) recorded and on file with the board and may request
in writing that any transcripts, reference statements, evaluations, supplementary
experience records or other similar documentation previously submitted to
the board be applied toward the new application. The applicant shall:
(1)
submit a new application form;
(2)
pay the application fee established by the board;
(3)
submit a completed Texas Engineering Professional Conduct
and Ethics examination;
(4)
submit a supplementary experience record that includes
at least the last four years of engineering experience, which may include
experience before the previous license expired; and
(5)
submit also at least one reference statement conforming
to §133.51 of this chapter (relating to Reference Providers), in which
a professional engineer shall verify at least four years of the updated supplementary
experience record.
(c)
Once an application from a former license holder is received,
the board will follow the procedures in §133.85 of this chapter (relating
to Board Review of and Action on Applications ) to review and approve or deny
the application.
(d)
Any license issued to a former Texas license holder shall
be assigned a new serial number.
§133.25.Applications from Engineering Educators.
(a)
Persons who are engineering educators instructing engineering
courses in an institution of higher education or a private or independent
institution of higher education, as defined in the Education Code §61.003,
and who began teaching engineering prior to September 1, 2001, are permitted
to seek licensure utilizing an alternate application. The minimum qualifications
are as follows:
(1)
Earned doctoral degree in:
(A)
engineering from a college or university that offers an
undergraduate or master's degree program in a related branch of engineering
that is approved by the EAC/ABET as published in the 2002 ABET Accreditation
Yearbook and the 2002 ABET International Yearbook or as published in the yearbook
applicable to a previous year in which the applicant graduated; or
(B)
engineering or another related field of science or mathematics
assessed and approved by the board;
(2)
To request waiver of the examination(s), must have at least
six years of:
(A)
teaching experience in an EAC/ABET-approved program, or
(B)
other acceptable, creditable engineering experience, including,
but not limited to, scholarly activity such as publishing papers in technical
and professional journals; making technical and professional presentations;
publishing books and monographs; performing sponsored research; reporting
on research conducted for sponsors; supervising research of undergraduate
and graduate students, postdoctoral fellows, or other employees; providing
counseling, guidance, and advisement for engineering students; and performing
certain other types of formal or informal functions in higher education; or
(C)
a combination of teaching and acceptable, creditable engineering
experience.
(b)
An engineering educator , applying under the alternate
process, shall submit:
(1)
an alternate application form;
(2)
a supplementary experience record:
(A)
For the faculty approved for promotion or tenure through
the Dean of Engineering office level, submit a dossier (comprehensive resume
or curriculum vitae) prepared for tenure and/or promotion consideration, OR,
for tenured faculty, current resume containing educational experience, engineering
courses taught, and description of research and scholarly activities in lieu
of the supplementary experience record;
(B)
For non-tenured faculty, a standard supplementary experience
record with courses taught and/or other engineering experience shall be submitted;
(3)
reference statements or letters from currently licensed
professional engineers who have personal knowledge of the applicant's teaching
and/or other creditable engineering experience. A reference provider may,
in lieu of the reference statement, submit a letter of recommendation that,
at a minimum, testifies to the credentials and abilities of the educator.
The reference statements or letters of recommendation can be from colleagues
within the department, college, or university; from colleagues from another
university; or professional engineers from outside academia;
(4)
college/ university transcripts;
(5)
a completed Texas Professional Conduct and Ethics Examination;
(6)
current application fee as established by the board; and
(7)
written requests for waivers of the examinations on the
fundamentals and/or principles and practices of engineering, if applicable.
(c)
Once an alternative application from an engineering educator
is received, the board will follow the procedures in §133.85 of this
chapter (relating to Board Review of and Action on Applications ) to review
and approve or deny the application.
(d)
This section does not prohibit any engineering educator
from applying for licensure under the standard application process.
§133.27.Application for Reciprocal or Comity License.
(a)
The applicant applying for a reciprocal or comity license
shall:
(1)
submit a reciprocal or comity application form,
(2)
pay the application fee established by the board,
(3)
submit a completed Texas Engineering Professional Conduct
and Ethics examination, and
(4)
submit a verification of a license in good standing from
one of the jurisdictions listed in §133.11(2) of this chapter (relating
to Types of Licenses).
(b)
Upon receipt of the application and verification of a license
in good standing, the board may issue a standard license to the applicant,
unless the application requires further review under §133.83 of this
chapter (relating to Staff Review, Evaluation and Processing of Applications)
or §133.85 of this chapter (relating to Board Review of and Action on
Applications). For those applications requiring further board review, the
board may request additional information to clarify an application, as needed.
Pursuant to §1001.453 of the Act, the board may review the license holders
status and take action if the license was obtained by fraud or error or the
license holder may pose a threat to the public's health, safety, or welfare.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on February 9, 2004.
TRD-200400875
Victoria J.L. Hsu, P.E.
Executive Director
Texas Board of Professional Engineers
Earliest possible date of adoption: March 21, 2004
For further information, please call: (512) 440-7723
22 TAC §§133.31, 133.33, 133.35, 133.37
The new rules are proposed pursuant to the Texas Engineering
Practice Act, Occupations Code §1001.202, which authorizes the board
to make and enforce all rules and regulations and bylaws consistent with the
Act as necessary for the performance of its duties, the governance of its
own proceedings, and the regulation of the practice of engineering in this
state.
The following are the statutes, articles, or codes affected by the proposed
new rules.
Texas Administrative Code, Title 22, Part 6 Texas Board of Professional
Engineers, Chapter 133: Licensing - Occupations Code §1001.202.
§133.31.Educational Requirement for Applicants.
(a)
Applicants for a license shall have graduated from at least
one of the following degree programs or degree program combinations listed
in this section:
(1)
Approved engineering curriculums under §1001.302(a)(1)(A)
of the Act. The following degrees are acceptable to the board for meeting
the educational requirements of §1001.302(a)(1)(A) of the Act:
(A)
a degree from an engineering program accredited or otherwise
approved by the:
(i)
Engineering Accreditation Commission of the Accreditation
Board for Engineering and Technology, United States (EAC/ABET) as published
in the 2002 ABET Accreditation Yearbook and the 2002 ABET International Yearbook
or as published in the yearbook applicable to a previous year in which the
applicant graduated; or
(ii)
Consejo de Acreditacion de la Ensenanza de la Ingenieria,
Mexico (Council of Accreditation for Engineering Education, C.A.).
(B)
A bachelor's degree in engineering or one of the mathematical,
physical, or engineering sciences, plus a graduate degree in engineering,
provided that:
(i)
the graduate degree is obtained from a college having an
engineering program approved by one of the organizations listed in subparagraph
(A) of this paragraph where either the graduate or undergraduate degree in
the same discipline is accredited; and
(ii)
the combination of the degrees is acceptable to the Board
as equivalent in EAC/ABET approved curricula content, and the combination
of degrees contain sufficient design curricula to provide minimal competency
in the use of engineering algorithms and procedures.
(C)
a completed degree that has not been accredited or approved
by either of the organizations identified in subparagraph (A) of this section
but has been evaluated in accordance with §133.33 of this chapter, (relating
to Proof of Educational Qualifications-Non-Accredited/Non-Approved Programs),
and determined to meet the ABET general and program criteria requirements
for an EAC/ABET-accredited or -approved program.
(2)
Other programs under §1001.302(a)(1)(B) of the Act.
The following degrees are acceptable to the board for meeting the educational
requirements of §1001.302(a)(1)(B) of the Act:
(A)
a bachelor degree from an engineering technology program
that is accredited by the Technology Accreditation Commission of the Accreditation
Board for Engineering and Technology (TAC/ABET) as published in the 2002 ABET
Accreditation Yearbook or as published in the yearbook applicable to a previous
year in which the applicant graduated;
(B)
A bachelors or graduate degree in engineering, mathematical,
physical, or related science that has not been accredited or approved by any
of the organizations identified in paragraphs (1)(A) or (2)(A) of this subsection
but has been obtained from a recognized institution of higher education as
defined in Chapter 131 of this title. Such degree programs must include, as
a minimum, the courses listed in clauses (i) and (ii) of this subparagraph
or these courses must be taken in addition to the bachelor or graduate degree
program:
(i)
eight semester hours (12 quarter hours) of mathematics
beyond trigonometry, including differential and integral calculus; and
(ii)
20 semester hours (30 quarter hours) of related engineering
sciences including subjects such as mechanics, thermodynamics, electrical
and electronic circuits, and others selected from material sciences, transport
phenomena, computer science and comparable subjects depending on the discipline
or branch of engineering. Course work should incorporate hands-on laboratory
work as described in the EAC/ABET criteria, and shall contain a sufficient
design program to provide minimal competency in the use of engineering algorithms
and procedures.
(3)
Other degree programs submitted to the board by the conferring
institutions and determined by the board as meeting or exceeding the criteria
of either of the accrediting organizations referred to in this section.
(A)
The programs at the University of Texas at Tyler have been
reviewed by the board and determined to be eligible for licensure under §1001.302(a)(1)(A)
of the Act, effective for those who graduated in 1999.
(B)
The following programs have been reviewed by the board
and determined to be eligible for licensure under §1001.302(a)(1)(B)
of the Act and eligible for taking the examination on the fundamentals of
engineering, effective the date listed:
(i)
Tarleton State University, Accepted Programs: Hydrology(1992)
and Engineering Physics(2001),
(ii)
West Texas State A&M, Accepted Program: Mechanical
Engineering (2003)
(b)
Degree programs that have not been accredited or approved
by any of the organizations identified in subsection (a)(1)(A) or (2)(A) of
this section are not acceptable for fulfilling the educational requirements
of the Act if they do not meet the definition of a recognized institution
of higher learning as defined in Chapter 131 of this title and:
(1)
give credit for life experience; or
(2)
consist primarily of engineering, mathematical, physical,
or engineering sciences courses that are correspondence courses that are self-taught
outside a formal classroom setting.
(c)
Applicants who have graduated from a degree program that
is accredited by the jurisdictional authority in the Canadian or European
community that have been evaluated pursuant to §133.33 of this chapter
(relating to Proof of Educational Qualifications/Non-Accredited/Non-Approved
Programs) and contain sufficient course hours to meet the requirements of §133.31(a)(2)(B)
of this chapter but not found to have sufficient course hours to be deemed
equivalent or comparable to a Bachelor of Science degree as would be issued
by a recognize institution of higher education in the United States may apply
for licensure solely through the examination process.
§133.33.Proof of Educational Qualifications-Non-Accredited/Non-Approved Programs.
(a)
An applicant for licensure who has graduated from a program
other than one in which the undergraduate or graduate degree in the same discipline
has been has been accredited or approved by any of the organizations identified
in §133.31(a)(1)(A) or (a)(2)(A) of this chapter (relating to Educational
Requirements for Applicants) shall furnish both an official transcript and
an evaluation for each degree to be relied upon to meet the educational requirements
of licensure as a professional engineer or certification as an engineer-in-training.
Official transcripts shall include either grades or mark sheets and proof
that the degree was conferred. In addition to providing a transcript reflecting
the degree(s) earned by an applicant, the applicant shall also provide an
official transcript from each school from which more than 15 semester hours
were earned towards the degree.
(1)
The applicant shall ensure that the required transcript(s)
are forwarded from the officially recognized and approved institutional authority
of records (e.g., registrar or other authority) of the institution from which
the applicant graduated directly to a commercial degree evaluation service
approved by the board. The applicant is responsible for ordering and paying
for all such transcripts and evaluations. Additional academic information,
including but not limited to grades and transfer credit, shall be submitted
to the board at the request of the executive director.
(2)
The degree evaluation must:
(A)
validate the authenticity of the transcript, diploma, and
any other supporting documentation;
(B)
include a detailed, course-by-course evaluation of courses,
including semester hours and grades;
(C)
a comparison of the applicant's degree program to criteria
of the Accreditation Board for Engineering and Technology applicable to the
applicant's year of graduation; and a determination whether the curriculum
of the degree program being evaluated meets the applicable criteria;
(D)
establish that the applicant has received a conferred degree
as determined by the placement recommendations approved by the National Council
for the Evaluation of Foreign Educational Credentials; and
(E)
be sent by the commercial evaluation service directly to
the board, accompanied by the applicant's official transcript or a copy of
the transcript verified by the commercial evaluation service.
(b)
Upon written request by an applicant provided at the time
of application, a commercial degree evaluation of a program other than one
accredited or approved by the EAC/ABET or the TAC/ABET may be waived by the
executive director if:
(1)
sufficient resources are available for the board to evaluate
it; or
(2)
the degree program contains curricula that are deemed by
the executive director to not be an integral part of the applicant's engineering
education.
(c)
Upon receipt or waiver of a commercial degree evaluation,
the executive director shall evaluate, under the standards of §133.31(a)(1)(C)
or (a)(2)(B) of this chapter (relating to Educational Requirements for Applicants),
the curricula of a degree program that has not been accredited or approved
by any of the organizations identified in §133.31 (a)(1)(A) or (a)(2)(A)
of this chapter.
(d)
If a transcript cannot be transmitted directly to the evaluation
service from the issuing institution, the executive director may, at his or
her discretion, approve an alternative method of evaluating the applicant's
educational qualifications, upon written request from the applicant explaining
why the transcript cannot be directly transmitted from the issuing institution.
An alternative method approved by the executive director may include validation
of transcript(s) in the applicant's possession through a commercial evaluation
service approved by the board. In the event the executive director approves
an alternative method such as validation of a transcript in the applicant's
possession by an evaluation service, the evaluation service shall forward
to the board the evaluation and all documentation provided by the applicant.
(e)
The board will not accept a commercial evaluation of a
degree in lieu of an official transcript or a validated transcript that was
in the applicant's possession. An official transcript or validated transcript
must be submitted to complete the application.
(f)
An applicant seeking an educational credential evaluation
under this section but wishing to qualify for licensure only under §133.31(a)(2)(B)
of this section is exempt from the evaluation requirement in subsection (a)(2)(C)
of this section.
§133.35.Proof of Educational Qualifications-Accredited/Approved Programs.
An applicant for licensure who has graduated from a degree program
in which the undergraduate or graduate degree in the same discipline has been
accredited or approved by any of the organizations identified in §133.31(a)(1)(A)
or (a)(2)(A) of this chapter (relating to Educational Requirements for Applicants)
shall provide to the board an official transcript for each degree to be relied
upon to meet the educational requirements for certification or licensure.
Such transcript(s) shall include either grades or mark sheets and proof that
the degree was conferred and must be forwarded directly to the board by the
registrar of the institution from which the applicant graduated. In addition,
copies of transcripts of all other engineering or mathematical, physical,
or engineering science degrees shall be submitted to the board; these transcripts
can be copies of the original transcript and can be forwarded to the board
by the applicant. The applicant is responsible for ordering and paying for
all such transcripts. Additional academic information, including but not limited
to grades and transfer credit, shall be submitted to the board at the request
of the executive director.
§133.37.English Translation.
All documents supporting the application written in language other
than English shall be accompanied by a certified English translation.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on February 9, 2004.
TRD-200400876
Victoria J.L. Hsu, P.E.
Executive Director
Texas Board of Professional Engineers
Earliest possible date of adoption: March 21, 2004
For further information, please call: (512) 440-7723
22 TAC §133.41, §133.43
The new rules are proposed pursuant to the Texas Engineering
Practice Act, Occupations Code §1001.202, which authorizes the board
to make and enforce all rules and regulations and bylaws consistent with the
Act as necessary for the performance of its duties, the governance of its
own proceedings, and the regulation of the practice of engineering in this
state.
The following are the statutes, articles, or codes affected by the proposed
new rules.
Texas Administrative Code, Title 22, Part 6 Texas Board of Professional
Engineers, Chapter 133: Licensing - Occupations Code §1001.202.
§133.41.Supplementary Experience Record.
Applicants shall submit a supplementary experience record to the board
as a part of the application. The supplementary experience record is a written
summary documenting all of the applicant's engineering experience used to
meet the requirements for licensure.
(1)
The supplementary experience record shall be written by
the applicant and shall:
(A)
provide an overall description of the nature and scope
of the work with emphasis on detailed descriptions of the engineering work;
(B)
clearly describe the engineering work that the applicant
personally performed; and
(C)
delineate the role of the applicant in any group engineering
activity.
(2)
The supplementary experience record shall be divided into
employment engagements that correspond to those listed in the application
and shall be written in sufficient detail to allow a board reviewer to document
the minimum amount of experience required and to allow a reference provider
to recognize and verify the quality and quantity of the experience claimed.
(3)
Experience that is unsupported by references may not be
considered. All experience claimed to meet the minimum requirements for licensure
shall be verified by one or more currently licensed professional engineer(s)
pursuant to §133.51 of this chapter (relating to Reference Providers).
(4)
The supplementary experience record must cover at least
the minimum amount of time needed by the applicant for issuance of a license.
(A)
Applicants applying under §1001.302(a)(1)(A) of the
Act shall provide supplementary experience records for at least four years
of engineering experience.
(B)
Applicants applying under §1001.302(a)(1)(B) of the
Act shall provide supplementary experience records for at least eight years
of engineering experience.
(C)
Applicants seeking a waiver from the examination on the
fundamentals of engineering and/or the examination on the principles and practices
of engineering requirements shall provide a supplementary experience record
for at least an additional eight years of experience beyond that required
in this subsection.
§133.43.Experience Evaluation.
(a)
The board shall evaluate the nature and quality of the
experience found in the supplementary experience record and shall determine
if the work is satisfactory to the board for the purpose of issuing a license
to the applicant. The board shall evaluate the supplementary experience record
for evidence of the applicant's competency to be placed in responsible charge
of engineering work of a similar character.
(1)
Engineering work shall be satisfactory to the board and,
therefore, considered by the board to be creditable engineering experience
for the purpose of licensure if it is of such a nature that its adequate performance
requires engineering education, training, or experience. The application of
engineering education, training and experience must be demonstrated through
the application of the mathematical, physical, and engineering sciences. Such
work must be fully described in the supplementary experience record. Satisfactory
engineering experience shall include an acceptable combination of design,
analysis, implementation, and/or communication experience, including the following
types of engineering activities:
(A)
design, conceptual design, or conceptual design coordination
for engineering works, products or systems;
(B)
development or optimization of plans and specifications
for engineering works, products, or systems;
(C)
analysis, consultation, investigation, evaluation, planning
or other related services for engineering works, products, or systems;
(D)
planning the use or alteration of land, water, or other
resources;
(E)
engineering for program management and for development
of operating and maintenance manuals;
(F)
engineering for construction, or review of construction;
(G)
performance of engineering surveys, studies, or mapping;
(H)
engineering for materials testing and evaluation;
(I)
expert engineering testimony;
(J)
any other work of a mechanical, electrical, electronic,
chemical, hydraulic, pneumatic, geotechnical, or thermal nature that requires
engineering education, training or experience for its adequate performance;
and
(K)
the teaching of engineering subjects by a person who began
teaching prior to September 1, 2001.
(2)
In the review of engineering experience, the board shall
consider additional elements unique to the history of the applicant. Such
elements should include, at a minimum:
(A)
whether the experience was sufficiently complex and diverse,
and of an increasing standard of quality and responsibility;
(B)
whether the quality of the engineering work shows minimum
technical competency;
(C)
whether the submitted materials indicate good character
and reputation;
(D)
whether the experience was gained in accordance with the
provisions of the Act;
(E)
whether the experience was gained in one dominant branch;
(F)
whether non-traditional engineering experience such as
sales or military service provides sufficient depth of practice;
(G)
whether short engagements have had an impact upon professional
growth ; and
(H)
experience gained in relation to or concurrent with the
applicant's education. Experience claimed prior to an applicant's receiving
a conferred degree must:
(i)
be substantiated in the supplementary experience record;
(ii)
be accounted for proportionally to a standard 40-hour
work week, if it was part-time employment; and
(iii)
reflect that, at the time the experience was gained,
the applicant:
(I)
had successfully passed junior and senior level engineering
courses and applied that engineering and knowledge in the claimed experience;
or
(II)
received sufficient education and training under the supervision
of an engineer.
(3)
Engineering experience may be considered satisfactory for
the purpose of licensing provided that:
(A)
the experience is gained during an engagement longer than
three months in duration;
(B)
the experience, when taken as a whole, meets the minimum
time;
(C)
the experience is not anticipated and has actually been
gained at the time of application;
(D)
the experience includes at least two years of experience
in the United States, not including time claimed for educational credit, or
otherwise includes experience that would show a familiarity with US codes
and engineering practice;
(E)
the time granted for the experience claimed does not exceed
the calendar time available for the periods of employment claimed.
(b)
One year of experience credit may be granted for each post-baccalaureate
engineering degree earned by an applicant, provided:
(1)
the applicant has a baccalaureate degree in engineering;
and
(2)
the post-baccalaureate degree is from an engineering program
where either the graduate or undergraduate degree in the same discipline is
accredited or approved by one of the organizations listed in §133.31(a)(1)
of this chapter (concerning Educational Requirements for Applicants). Experience
credit for all post-baccalaureate degrees is limited to a total of two years.
(c)
Experience gained in conjunction with or in relation to
earning a post-baccalaureate degree, such as research or teaching assistant
work, will not be credited in addition to experience credited pursuant to
subsection (b) of this section.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on February 9, 2004.
TRD-200400877
Victoria J.L. Hsu, P.E.
Executive Director
Texas Board of Professional Engineers
Earliest possible date of adoption: March 21, 2004
For further information, please call: (512) 440-7723
22 TAC §§133.51, 133.53, 133.55
The new rules are proposed pursuant to the Texas Engineering
Practice Act, Occupations Code §1001.202, which authorizes the board
to make and enforce all rules and regulations and bylaws consistent with the
Act as necessary for the performance of its duties, the governance of its
own proceedings, and the regulation of the practice of engineering in this
state.
The following are the statutes, articles, or codes affected by the proposed
new rules.
Texas Administrative Code, Title 22, Part 6 Texas Board of Professional
Engineers, Chapter 133: Licensing - Occupations Code §1001.202.
§133.51.Reference Providers.
(a)
Applicants for licensure shall provide references to verify
character suitability for licensure and all engineering experience claimed
to meet the minimum years of experience required. Reference statements will
be used to verify the applicant's character and the factual presentation of
the applicant's experience and to determine to the extent the experience is
creditable engineering experience.
(1)
Standard Licensure Procedure. Applicants applying under §1001.302(a)(1)(A)
or (B) of the Act, including those applicants licensed in another jurisdiction
or previously licensed in Texas, shall provide at least three references.
These reference providers shall be from currently licensed professional engineers
who have personal knowledge of the applicant's character, reputation, suitability
for licensure, and engineering experience and shall review all or the applicable
portions of the applicant's supplementary experience record and complete the
reference statement in full.
(2)
Waiver of Examinations Procedure. Applicants requesting
a waiver from the examinations on the fundamentals of engineering or principles
and practice of engineering shall provide five references . These reference
providers shall be from currently licensed professional engineers who have
personal knowledge of the applicant's character, reputation, suitability for
licensure, and engineering experience and shall review all or the applicable
portions of the applicant's supplementary experience record and complete the
reference statement in full.
(b)
Professional engineers who have not worked with or directly
supervised an applicant may review and judge the applicant's experience and
may serve as a licensed engineer reference; such review shall be noted on
the reference statement.
(c)
All reference providers shall be provided by individuals
with personal knowledge of the applicant's character, reputation, and general
suitability for holding a license. If possible, reference providers should
be provided by individuals who directly supervised the applicants.
(d)
Professional engineers who provide reference statements
and who are licensed in a jurisdiction other than Texas shall include a copy
of their pocket card or other verification to indicate that their license
is current and valid.
(e)
Professional engineers who provide references shall not
be compensated.
(f)
References on file with the board from previous applications
may be used upon written request of the applicant and with the approval of
the executive director.
(g)
The board members and staff may, at their discretion, rely
on any, all, or none of the references provided in connection with an application
for licensure.
§133.53.Reference Statements.
(a)
The applicant shall send the board's reference statement
form and a complete copy of the applicable portion(s) of the supplementary
experience record to each reference.
(b)
Persons providing reference statements verifying an applicant's
engineering experience shall:
(1)
review and evaluate all applicable portions of the supplementary
experience record(s); and
(2)
accurately complete the reference statement certifying
agreement or disagreement with the information written by the applicant.
(c)
The reference provider shall submit to the board both the
reference statement and the supplemental experience record. If the reference
provider is in disagreement with or has comments or clarification to the information
provided by the applicant, the reference provider may submit comments or concerns
to the board with the completed reference statement.
(d)
For any reference statement to meet the requirements of
the board, the reference statement must be secured. For a reference statement
to be considered secure, the reference provider shall:
(1)
place the completed reference statement and reviewed supplementary
experience records in an envelope;
(2)
seal the flap of the envelope;
(3)
after sealing the envelope, the reference provider shall
sign across the sealing edge of the flap of the envelope and cover the signature
with transparent tape; and
(4)
the reference provider shall return the sealed envelope
to the applicant or transmit the documents directly to the board.
(e)
Secured reference envelopes shall be submitted to the board
by applicant or reference provider.
§133.55.Reference Communication.
(a)
Additional references may be required of the applicant
when the executive director finds it necessary to adequately verify the applicant's
experience or character. The board and/or staff may at their discretion communicate
with any reference or seek additional information.
(b)
The board may post the names of applicants on the board
website and receive information regarding an applicant from the regulated
community and general public. The board members and staff may, at their discretion,
rely on any, all, or none of the public comments received in connection with
an application for licensure.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on February 9, 2004.
TRD-200400878
Victoria J.L. Hsu, P.E.
Executive Director
Texas Board of Professional Engineers
Earliest possible date of adoption: March 21, 2004
For further information, please call: (512) 440-7723
22 TAC §§133.61, 133.63, 133.65, 133.67, 133.69, 133.71, 133.73, 133.75
The new rules are proposed pursuant to the Texas Engineering
Practice Act, Occupations Code §1001.202, which authorizes the board
to make and enforce all rules and regulations and bylaws consistent with the
Act as necessary for the performance of its duties, the governance of its
own proceedings, and the regulation of the practice of engineering in this
state.
The following are the statutes, articles, or codes affected by the proposed
new rules.
Texas Administrative Code, Title 22, Part 6 Texas Board of Professional
Engineers, Chapter 133: Licensing - Occupations Code §1001.202.
§133.61.Engineering Examinations Required for a License to Practice as a Professional Engineer.
(a)
Applicants are required to take two written experience
and knowledge examinations, furnished and graded by the NCEES or by the board,
or request a waiver of such examinations pursuant to §133.69 of this
chapter (relating to Waiver of Examinations), and the Texas Engineering Professional
Conduct and Ethics examination, furnished and graded by the board.
(b)
All examinations shall be in the English language.
(c)
Experience and knowledge examinations may be an eight-hour
Fundamentals of Engineering examination and an eight-hour Principles and Practice
of Engineering examination prepared by the NCEES or equivalent as determined
by the board.
(d)
The board shall adopt an examination schedule at least
once a year, which shall include at least the following information:
(1)
the places where the examinations shall be held;
(2)
the dates of the examinations and the deadline date for
an examinee to schedule an examination;
(3)
fees for each examination; and
(4)
types of examinations offered.
(e)
Examinations may be scheduled by obtaining the necessary
form from the board office and timely submission to the board with the appropriate
examination fee.
(f)
Individuals who plan to take an examination must have their
completed examination scheduling form and the appropriate fee in the board
office by the close of regular business on the date established by the applicable
examination schedule adopted by the board.
(g)
Applicants providing an official verification from an NCEES
member board certifying that they have passed the eight-hour examination(s)
in that state shall not be required to take the examination(s) again.
(h)
Examination fees shall not be refunded, but may be applicable
to future examination administrations if an examinee makes a timely request
seven weeks prior to the examination and if approved by the executive director.
(i)
Examination candidates who have been called into active
U.S. military duty or who are re-assigned military personnel and will not
be available to sit for an examination may request the examination cycle be
postponed and any paid examination fees incumbered toward a future examination
date. Such candidates shall submit adequate documentation, including copies
of orders, and a request to postpone the examination cycle to the board. The
candidate shall notify the board of their availability to resume the examination
cycle within 60 days of release from active duty or when they are deployed
to a location that provides a board approved examination.
(j)
All examinations shall be administered to applicants with
disabilities in compliance with the Americans with Disabilities Act of 1990
(42 U.S.C. Section 12101 et seq.), and its subsequent amendments. Special
accommodations can be provided for examinees with physical or mental impairments
that substantially limit life activities.
(1)
Any individual with a disability who wishes to request
special accommodations must submit a Disability Assessment Form that has been
completed and signed by the examinee and an appropriate licensed health care
professional.
(2)
The Disability Assessment Form must be submitted at least
sixty (60) days prior to the examination to assure ample time to process the
request. Requests for special accommodations submitted less than sixty (60)
days prior to the date of the examination may not leave sufficient time for
approval with the testing service.
(3)
The board may request additional documentation to substantiate
a request for special accommodations.
(4)
The board will accept, review, and submit requests for
special accommodations to the testing service for approval and an examinee
will be notified of approval of the request or reason for denial of the request.
(k)
Pursuant to Texas Occupations Code §54.002, if an
examination candidate's religious beliefs prevent the candidate from taking
an examination on a religious holy day that conflicts with the normally scheduled
examination date, the candidate shall, at the time of examination scheduling,
submit a written request to board to take the examination on an alternate
date.
(l)
Upon successful passage of the experience and knowledge
examinations, or being granted a waiver of one or both examinations pursuant
to §133.69 of this chapter (relating to Waiver of Examinations), an applicant
shall be considered to have met the examination requirements for licensure
as a professional engineer in Texas.
§133.63.Texas Engineering Professional Conduct and Ethics Examination.
(a)
The Texas Engineering Professional Conduct and Ethics Examination
shall be open book and shall be prepared and administered by the board. Each
applicant must submit this examination with the application and must pass
with a score of at least 70 percent.
(b)
No fees or advanced scheduling forms are required for the
Texas Engineering Professional Conduct and Ethics Examination.
§133.65.Examination on the Fundamentals of Engineering.
(a)
An undergraduate student who is within two full-time regular
semesters (not including summer sessions) of graduating and who is enrolled
in an engineering program accredited or approved by the EAC/ABET, a four year
baccalaureate technical program accredited or approved by the TAC/ABET, or
an engineering-related science program of four years or more that has been
approved by the board, may take the examination on the fundamentals of engineering
at the student's school provided the school administers the examination as
prescribed by the board.
(b)
A graduate student may take the examination on the fundamentals
of engineering at the student's school provided that the school administers
the examination as prescribed by the board and the student is enrolled in
an EAC/ABET-accredited graduate degree program or in a graduate program at
an institution which has an EAC/ABET-accredited undergraduate degree program
in that discipline, and the student has:
(1)
a baccalaureate degree that is EAC/ABET-accredited;
(2)
an engineering or engineering-related science program degree
that has been approved by the board; or
(3)
a non-engineering related curriculum or other degree in
which the student has provided evidence acceptable to the executive director
as meeting the minimum requirements of §1001.302(a)(1)(A) or (B) of the
Act.
(c)
Engineering students may schedule the examination on the
fundamentals of engineering at their participating school through the engineering
dean, department head, or other program administrator.
(d)
Persons who demonstrate that they meet the educational
requirements for a license and who have not passed the examination on the
fundamentals of engineering while in college may apply to the board to take
the examination in accordance with the applicable examination schedule adopted
by the board.
(e)
Persons who do not meet the criteria of subsection (a)
of this section, but who need only to complete the examination on the fundamentals
of engineering to fulfill the graduation requirements of a degree program
that would meet the educational requirements for a license, may apply to the
board to take the examinations in accordance with the applicable examination
schedule adopted by the board.
§133.67.Examination on the Principles and Practice of Engineering.
(a)
The examination on the principles and practice of engineering
is open only to licensed engineers who wish to take the examination for record
purposes and to applicants who have received board approval to take it.
(b)
Applicants approved to take the examination on the principles
and practice of engineering shall:
(1)
be advised of the first examination date for which they
are eligible;
(2)
schedule to test in an area of competency as demonstrated
by their experience and education;
(3)
be solely responsible for timely scheduling for the examination
and any payment of examination fees; and
(4)
have no more than four consecutive examination opportunities,
including the examination given on the date of the first available examination,
to pass the examination. Except as provided for in §133.61(i) of this
chapter , no extensions shall be granted under any circumstances.
(A)
Once an applicant has scheduled for an examination that
is offered once per year, the consecutive opportunities shall be counted as
one annually as long as the applicant does not schedule to sit for an examination
that is offered twice per year.
(B)
Once an applicant has scheduled for an examination that
is offered twice per year, either for the first time or after scheduling for
an examination that is offered once per year, the remaining consecutive opportunities
shall be counted as two annually from that examination forward until the four
consecutive opportunities expire.
(c)
Applications for applicants who do not pass the examination
within the allotted time shall be denied pursuant to §133.87 of this
chapter (relating to Final Action on Applications).
(d)
The examination on the principles and practice of engineering
shall be offered according to the schedule determined by the National Council
of Examiners for Engineering and Surveying or by the board.
§133.69.Waiver of Examinations.
(a)
Examinations are considered an integral part of the licensing
process; all applicants are expected to have passed the examinations or to
offer sufficient evidence of their qualifications in the absence of passage
of the examinations. The board may waive one or both of the examination on
the fundamentals of engineering or examination on the principles and practice
of engineering for applicants who:
(1)
do not pose a threat to the public health, safety, or welfare;
(2)
request a waiver in writing at the time the application
is filed; and
(3)
meet one of the following requirements:
(A)
persons who have 12 or more years of creditable engineering
experience, as evaluated by the board under §133.43 of this chapter (relating
to Experience Evaluation), and meet the educational requirements of §1001.302(a)(1)(A)
of the Act; or
(B)
persons who have 16 years of creditable engineering experience,
as evaluated by the board under §133.43 of this chapter (relating to
Experience Evaluation), and meet the educational requirements of §1001.302(a)(1)(B)
of the Act; or
(C)
persons who have a Ph.D. degree in engineering from a college
or university having an undergraduate or master's degree program in a related
branch of engineering that is accredited or approved by the Engineering Accreditation
Commission of the Accreditation Board for Engineering and Technology, United
States (EAC/ABET), and who began teaching engineering prior to September 1,
2001, and have:
(i)
taught in an EAC/ABET-accredited or -approved program for
at least four years, or have at least four years of experience consisting
of a combination of EAC/ABET teaching experience and other creditable engineering
experience, as evaluated by the board under §133.43 of this chapter (relating
to Experience Evaluation), to request waiver of the examination on the fundamentals
of engineering ; or
(ii)
taught in an EAC/ABET-accredited or -approved program
for at least six years, or have at least six years of experience consisting
of a combination of EAC/ABET teaching experience and other creditable engineering
experience, as evaluated by the board under §133.43 of this chapter (relating
to Experience Evaluation), to request waiver of both the examination on the
fundamentals of engineering and the examination on the principles and practice
of engineering ;
(D)
persons who have a Ph.D. degree in engineering not qualifying
under Paragraph C of this section or other related field of science or mathematics
that is individually assessed and approved by the board during the evaluation
process, and who began teaching engineering prior to September 1, 2001, and
have taught in an EAC/ABET-accredited or -approved program for at least eight
years, or have at least eight years of experience consisting of a combination
of EAC/ABET teaching experience and other creditable engineering experience,
as evaluated by the board under §133.43 of this chapter (relating to
Experience Evaluation), to request waiver of either or both the examination
on the fundamentals of engineering and /or the examination on the principles
and practice of engineering .
(b)
An applicant is not eligible to request a waiver of the
examination on the principles and practice of engineering if the applicant
has taken and failed any examination on the principles and practice of engineering
within the previous four years.
(c)
Applicants requesting a waiver from any examination(s)
shall file any additional information needed to substantiate the eligibility
for the waiver with the application, as provided in §133.51 of this chapter
(relating to Reference Providers), and §133.52 of this chapter (relating
to Reference Statements). The board shall review all elements of the application
to evaluate waiver request(s) and may grant a waiver(s) to qualified applicants.
§133.71.Examination for Record Purposes.
A licensed engineer may, upon written request to the board and submittal
of the appropriate forms and fees, take an examination for record purposes
only. An individual may only take the examination on the principles and practice
of engineering if the individual is licensed in Texas as a professional engineer
or has been given permission by the board to do so.
§133.73.Examination Analysis.
(a)
In accordance with §1001.306(c) of the Act, the board
will provide a written analysis furnished by the NCEES or by the board to
anyone who has failed either the examination on the fundamentals of engineering
or the examination on the principles and practice of engineering.
(b)
Once the board has provided a written analysis of an examination,
no further review or re-grading shall be available for the examination except
as provided in subsection (c) of this section. However, the executive director
may, at his or her discretion, review the administrative portions of an examination
answer sheet to resolve administrative uncertainties and/or determine the
manner in which an examination should be scored.
(c)
An examinee may view the examination on the principles
and practice of engineering results or request regrading of such examination
only as permitted by the uniform examination procedures set out by NCEES or
by the board:
(1)
only at the date(s) and time(s) specified by the board
in its letter notifying the examinee of his or her failure of the examination;
and
(2)
provided that any costs associated with regrading by NCEES
or by the board will be paid by the examinee.
§133.75.Examination Irregularities.
(a)
The examinations will be administered in accordance with
the NCEES or the board policies and procedures. An examinee who does not abide
by the NCEES or the board policies and procedures will be subject to dismissal
from the remainder of the examination. Cheating on examinations will not be
tolerated. Examination proctors who observe that an examinee is giving assistance
to or receiving assistance from another person, compromising the integrity
of the examination, or participating in any other form of cheating during
an examination shall require the examinee to surrender all examination materials.
The examinee involved shall leave the room and shall not be permitted to return.
Evidence of cheating found after the examination shall also be a cause for
action. The executive director shall be informed of such instances of suspected
cheating at the earliest possible opportunity and will determine appropriate
action. When the executive director has determined that cheating occurred
during an examination, the examination results of the persons who are determined
to have cheated shall be invalidated.
(b)
If the executive director determines that an examinee has
knowingly violated NCEES or the board policies and procedures or cheated,
the examinee will be barred from taking any examination in Texas for a period
of two years. Any application for licensure pending or approved for examination
will be automatically proposed for denial and will be evaluated or re-evaluated
on that basis. Any examination taken and passed in another state during the
two-year period will not be acceptable for licensure purposes in Texas. Any
subsequent examinations administered to the examinee will be given at the
site and time determined by the executive director.
(c)
A licensed professional engineer suspected of cheating
may be charged with violating §1001.452 of the Act and applicable board
rules.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on February 9, 2004.
TRD-200400879
Victoria J.L. Hsu, P.E.
Executive Director
Texas Board of Professional Engineers
Earliest possible date of adoption: March 21, 2004
For further information, please call: (512) 440-7723
22 TAC §§133.81, 133.83, 133.85, 133.87, 133.89, 133.91, 133.93, 133.95, 133.97
The new rules are proposed pursuant to the Texas Engineering
Practice Act, Occupations Code §1001.202, which authorizes the board
to make and enforce all rules and regulations and bylaws consistent with the
Act as necessary for the performance of its duties, the governance of its
own proceedings, and the regulation of the practice of engineering in this
state.
The following are the statutes, articles, or codes affected by the proposed
new rules.
Texas Administrative Code, Title 22, Part 6 Texas Board of Professional
Engineers, Chapter 133: Licensing - Occupations Code §1001.202.
§133.81.Receipt and Process.
(a)
Upon receipt of applications at the board office in Austin,
Texas, the board shall initiate a review of the credentials submitted. Applicants
who meet the licensure requirements shall be issued a license upon successful
passage of the examination on the principles and practices of engineering,
having met all examination requirements, or been approved by waiver of examination(s).
Applicants who fail to meet one or more of the licensure requirements shall
be denied a license.
(b)
Once an application is received by the board, no refunds
will be granted. By submitting an application and fee, the applicant attests
that he or she has reviewed the education, experience, reference, and examination
requirements for licensure as prescribed in this chapter and that he or she
is qualified for a license based on these requirements.
(c)
Once an application has been reviewed and the board has
approved an applicant for licensure subject to passage of an examination,
and before a license has been issued or denied, the board will not accept
a new or amended application from the applicant. This does not prohibit the
executive director, a board member, or the board from requesting, when they
deem necessary, additional information from an applicant regarding his or
her application.
(d)
In the event that information bearing on the suitability
of an applicant is discovered after submission of an application but prior
to issuance of a license, the board may rescind or alter any previous decision,
or hold the application in abeyance, or may deny an application until the
suitability of the applicant is adequately established.
§133.83.Staff Review, Evaluation and Processing of Applications.
All references to the executive director in this section shall allow
for the delegation of authority by the executive director to other staff members.
An application for licensure shall be handled in the following manner and
order:
(1)
The application is received at the board office in Austin,
Texas.
(2)
The executive director shall review the application for
completeness.
(3)
The executive director shall:
(A)
accept the application as complete for processing and evaluating;
or
(B)
accept the application and notify the applicant at the
earliest possible time of deficient information and give the applicant 45
days to complete the application. Upon receipt of an applicant's written request,
the executive director may grant the applicant one additional 30 day period
to submit any information identified by the executive director as necessary
to complete the application. If the applicant does not submit all documents
required in the time allowed for such submittals, the application shall be
administratively withdrawn and further processing performed in accordance
with §133.89 of this chapter (relating to Processing of Administratively
Withdrawn Applications).
(4)
Once an application is complete, the executive director
shall review and evaluate the qualifications found in the application and
determine whether the applicant should interview with the licensing committee
or whether the application should be:
(A)
approved,
(B)
denied, or
(C)
reviewed by the professional engineer members of the board.
(5)
The executive director may approve the application without
further board review unless the application is accompanied by:
(A)
an unfavorable recommendation by one or more reference
providers; or
(B)
a request for waiver of examination(s), except when:
(i)
the applicant has successfully passed the examination on
the principles and practice of engineering, is solely requesting a waiver
of the examination on the fundamentals of engineering, and has not been disciplined
or otherwise sanctioned by this board or a board of another state having jurisdiction
over the practice of engineering, or
(ii)
the applicant is solely requesting waiver of the examination
on the fundamentals of engineering and requesting approval to take the examination
on the principles and practice of engineering.
(6)
The executive director may deny an application for licensure
without further board review if the applicant does not :
(A)
have sufficient years of experience to qualify for licensure,
(B)
have an education acceptable to the board as prescribed
in §133.31 of this chapter (relating to Educational Requirement for Applicants),
(C)
pass an examination within the time allotted, or
(D)
complete the application and it becomes administratively
withdrawn for more than six months.
(7)
An application for licensure that cannot be approved or
denied by the executive director pursuant to paragraphs (5) and (6) of this
section shall be circulated among the professional engineer board members.
§133.85.Board Review of and Action on Applications.
The application shall be circulated randomly among the professional
engineer board members if any of the conditions listed in paragraph (5)(A)
or (B) of §133.83 of this chapter apply or if the executive director
requests that an application be reviewed by the board members and shall be
processed as follows:
(1)
The application is approved if the first reviewing board
member agrees with an executive director recommendation of approval.
(2)
If the executive director or the first reviewing board
member determines that the application or a request for waiver of examinations
should be denied or requests that the applicant appear before the licensing
committee, then circulation shall continue until the application receives
at least three votes for either approval or denial of the waiver request(s)
or application or personal interview of the applicant. If, after circulation
among all the professional engineer board members, an application does not
receive three like votes, the application shall then be referred to the licensing
committee for a determination whether the application should be approved or
denied or that additional information or a personal appearance of the applicant
before the committee is necessary.
(3)
If there are three like votes among the professional engineer
board members in favor of the application or if, after circulation among the
board members and referral to the licensing committee, the licensing committee
determines that an application should be approved, the executive director
shall approve the application without further action by the board.
(4)
If there are three like votes among the professional engineer
board members to deny the application, the licensing committee determines
that an application should be denied, or the licensing committee is unable
to reach a decision, the application and any such determination shall be presented
to the full board at its next regularly scheduled meeting.
§133.87.Final Action on Applications.
(a)
Upon approval of an application by the executive director,
the licensing committee, or the board in a manner provided in this subchapter,
the executive director shall:
(1)
approve an application subject to the applicant's taking
and passing the examination on the principles and practice of engineering;
or
(2)
issue a license to an applicant who has passed the examination
on the principles and practice of engineering or who has had that examination
waived.
(b)
The board shall deny an application if any of the following
occurs:
(1)
the application has been administratively withdrawn for
a period of six months;
(2)
three of the professional engineer board members or majority
of the full board voted to deny an application on the basis that the applicant
does not meet the requirements of §1001.302 of the Act; or
(3)
the applicant did not pass the examination on the principles
and practice of engineering in the prescribed time.
(c)
An applicant who has been denied a license for failure
to pass the examination on the principles and practice of engineering with
prescribed time may not re-apply for a license until one (1) year has passed
from the date on the notification of failure to pass the examination or until
the applicant has completed at least six (6) additional hours of formal classroom
courses relevant to the applicant's dominant branch or discipline of experience.
(d)
The board by vote shall confirm the action taken on a license
at its next regularly scheduled meeting.
(e)
The executive director shall advise the applicant in writing
of any decision of the executive director, the licensing committee, or the
board, as applicable.
§133.89.Processing of Administratively Withdrawn Applications.
(a)
To reactivate an administratively withdrawn application,
the applicant must submit:
(1)
a reactivation fee as established by the board;
(2)
a new application form complete with signatures; and
(3)
updated supplementary experience records for the time period
since the application was first submitted.
(b)
If the application has been administratively withdrawn
for a period of six months, the application shall be denied.
§133.91.Reconsideration of Denied Applications or Requests for Examination Waivers.
(a)
Reconsideration is not available to persons whose application
is denied because of the failure to pass the examination on the principles
and practice of engineering.
(b)
If the application is denied because of the merits of the
application, the completeness or incompleteness of the application, the failure
to demonstrate an acceptable education, the failure to claim the required
creditable experience, or if the board did not grant a request to waive one
or more examinations, then the applicant may initiate a request that the application
be reconsidered provided:
(1)
the request is in writing;
(2)
the request includes additional information bearing on
the deficiency of the original application;
(3)
the request is received at the board office by the close
of business on or before the 60th calendar day from the date of the letter
notifying the applicant of denial; and
(4)
no previous reconsideration has been given during this
application.
(c)
If a valid request for reconsideration is received, the
application shall repeat the process of application review. Applicants whose
applications or requests for an examination waiver are denied under reconsideration
may request a personal interview.
§133.93.Personal Interviews of Applicants.
(a)
A personal interview with the Licensing Committee of the
board or the board's designated representative may be scheduled by the executive
director to:
(1)
obtain additional information or clarify submitted information
as requested by the board, or to;
(2)
reconsider a denied application or a denial of an examination
waiver request resulting from §133.91 of this chapter (relating to Reconsideration
of Denied Applications or Examination Waivers) at the applicant's request,
provided that:
(A)
a written request has been submitted and received at the
board's office by the close of business on or before the 60th calendar day
from the date of the notification of denial;
(B)
the personal interview is not to be construed as a hearing,
but is held to obtain additional information in support of an application;
and
(C)
the executive director may excuse and reschedule an applicant
for a personal interview for cause. The executive director may also withdraw
an invitation or permission for a personal interview for any reason including
a previous failure to appear.
(b)
The Licensing Committee or the board's designated representative
shall make recommendations to the full board at the next available board meeting.
(c)
Another personal interview with the full board may be scheduled
with a written request in accordance with subsection (a)(2)(A)-(C) of this
section. This interview with the full board shall constitute the last administrative
appeal available to the applicant.
§133.95.Application Files.
(a)
Images of applications that have been through the complete
administrative process for approval or denial shall be stored digitally and/or
microfilmed.
(b)
One copy of the records shall be kept in the board office
file and one copy shall be kept in the permanent State Archive file.
(c)
All documents incidental to the complete application may
be retained at the discretion of the board.
§133.97.Issuance of License.
(a)
A license as a professional engineer shall be issued upon
the approval of the application pursuant to §133.87(a) of this chapter
(relating to Final Action on Applications).
(b)
The fee which accompanied the application is applied toward
the required licensing fee for the first partial year of licensure.
(c)
The new license holder shall be assigned a serial number
issued consecutively in the order of approval.
(d)
The executive director shall notify the new license holder
in writing of:
(1)
the license issuance;
(2)
the license serial number;
(3)
the instructions to obtain a seal; and
(4)
the instructions to return a seal imprint and a recent,
wallet-size, portrait photograph.
(e)
Within 60 days from the written notice from the executive
director of license issuance, the new license holder shall:
(1)
obtain a seal(s);
(2)
place the seal imprint(s) on the form provided by the board
and return it to the board office; and
(3)
furnish a wallet-size portrait photograph for the board's
files.
(f)
Failure to comply with paragraph (e) of this section is
a violation of board rules and shall be subject to sanctions.
(g)
The printed license shall bear the signature of the chair
and the secretary of the board, bear the seal of the board, and bear the full
name and license number of the license holder.
(h)
The printed license shall be uniform and of a design approved
by the board. Any new designs for a printed license shall be made available
to all license holders upon request and payment of a replacement certificate
fee.
(i)
A license issued by the board is as a professional engineer,
regardless of branch designations or specialty practices. Practice is restricted
only by the license holder's professional judgment and applicable board rules
regarding professional practice and ethics.
(j)
The records of the board shall indicate a branch considered
by the board or license holder to be dominant.
(k)
A license holder may request the board to indicate up to
two additional branches of expertise by providing:
(1)
a transcript showing an additional degree in the additional
branch;
(2)
a supplementary experience record documenting at least
4 years of experience in the additional branch verified by at least one PE
reference provider that has personal knowledge of the license holder's character,
reputation, suitability for licensure, and engineering experience; or
(3)
verification of successful passage of the examination on
the principles and practice of engineering in the additional branch.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on February 9, 2004.
TRD-200400880
Victoria J.L. Hsu, P.E.
Executive Director
Texas Board of Professional Engineers
Earliest possible date of adoption: March 21, 2004
For further information, please call: (512) 440-7723
22 TAC §§135.1, 135.3, 135.5
The Texas Board of Professional Engineers proposes new rules
in Texas Administrative Code, Title 22, Part 6 Texas Board of Professional
Engineers, Chapter 135: Firms and Sole Proprietorships. The proposed new rules
are §§135.1, 131.3, and 131.5. The Board proposes this action in
conjunction with repeal of the existing Chapter 131: Practice and Procedure.
Also, the board proposes this action in conjunction proposing five new chapters
to better organize the agency rules and procedures.
As a part of the rule review required by Chapter 2001, Texas Government
Code, the Board must review and update the existing rules. Since the statutory
references in the Board Rules must be changed to reflect the new designations
in the re-codified Act, nearly every rule must be re-proposed and adopted
with the new references. The Board has chosen this time to re-organize the
existing rules, incorporate new legislative requirements, and develop a framework
to aid in future rule expansion.
Since most of the content of the proposed rules are a repeat of the existing
rules with few changes, the board will highlight substantive changes. The
rules proposed are not number consecutively and reserves numbers for future
expansion.
In this new Chapter, the board re-proposes the existing rules regarding
firm and sole proprietorship registration. The registration compliance and
renewal requirements are being proposed as a subchapter in the new chapter
on Compliance.
Victoria J. L. Hsu, P.E., Executive Director for the board, has determined
that for the first five-year period the new rules are in effect, there will
be minimal fiscal implications for state or local government as a result of
enforcing or administering the new rules since the substance of the proposed
rules comes from the current rules.
Ms. Hsu has also determined that for each year of the first five years
the new rules are in effect, the public benefit anticipated as a result of
enforcing and administering the proposed rules will be that the general public
and license holders of Texas will be able to follow more organized rules and
streamlined processes and procedures in the new rules For the same period,
there is no anticipated adverse economic effect on individuals, small or micro-businesses.
Comments may be submitted, no later than 30 days after publication, to
Victoria J. L. Hsu, P.E., Executive Director, Texas Board of Professional
Engineers, 1917 IH 35 South, Austin, Texas 78741 or faxed to her attention
at (512) 442-1414.
The new rules are proposed pursuant to the Texas Engineering
Practice Act, Occupations Code §1001.202, which authorizes the board
to make and enforce all rules and regulations and bylaws consistent with the
Act as necessary for the performance of its duties, the governance of its
own proceedings, and the regulation of the practice of engineering in this
state.
The following are the statutes, articles, or codes affected by the proposed
new rules:
Texas Administrative Code, Title 22, Part 6 Texas Board of Professional
Engineers, Chapter 135: Firms and Sole Proprietorships- Occupations Code §§1001.202.
§135.1.Authority.
The Texas Board of Professional Engineers shall receive, evaluate,
and process all applications for a certificate of registration issued under
the authority of the Texas Engineering Practice Act (Act). Applications for
the certificate of registration shall be accepted from all firms offering
to engage or engaging in the practice of professional engineering for the
public in Texas. For the purposes of this section, the term "public" includes
but is not limited to political subdivisions of the state, business entities,
and individuals. The board has the authority under the Act to issue an annual
certificate of registration to applicants that, subsequent to review and evaluation,
are found to have met all requirements of the Act and board rules. The board
has the authority under the Act to deny a certificate of registration to any
applicant found not to have met all requirements of the Act and board rules.
§135.3.Application for a Certificate of Registration.
(a)
The board may issue a certificate of registration only
to applicant firms having submitted sufficient information to meet the requirements
set forth in §1001.405 of the Act and this section.
(b)
The authorized official of the firm shall complete the
form furnished by the board including but not limited to the following information
listed in paragraphs (1)-(6) of this subsection:
(1)
the name, address, and communication number of the firm
offering to engage or engaging in the practice of professional engineering
for the public in Texas;
(2)
the name, position, address, and communication numbers
of each officer or director;
(3)
the name, address, current Texas professional engineer
license number of each regular, full-time engineer employee performing engineering
for the public in Texas on behalf of the firm;
(4)
the name, location, and communication numbers of each subsidiary
or branch office offering to engage or engaging in the practice of professional
engineering for the public in Texas, if any;
(5)
a signed statement attesting to the correctness and completeness
of the application; and
(6)
a registration fee as established by the board.
(c)
For a firm that offers or performs services only on a part-time
basis, the professional engineer who has physical presence, is an employee
of the firm, and offers or performs the engineering work or who directly supervises
the engineering work while the firm is in operation shall satisfy the requirement
of the regular, full-time employee.
(d)
The application fee will not be refunded.
§135.5.Renewal and Good Standing.
To maintain a certificate of registration in good standing, a firm
shall abide by the compliance rules as prescribed in Chapter 137, Subchapter
D: Firm, Sole Proprietorship and Governmental Entity Compliance of this title.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on February 9, 2004.
TRD-200400881
Victoria J.L. Hsu, P.E.
Executive Director
Texas Board of Professional Engineers
Earliest possible date of adoption: March 21, 2004
For further information, please call: (512) 440-7723
The Texas Board of Professional Engineers proposes new rules in Texas
Administrative Code, Title 22, Part 6 Texas Board of Professional Engineers,
Chapter 137: Compliance and Professionalism. The proposed new rules are: Subchapter
A, Individual and Engineer Compliance, §§137.1, 137.3, 137.5137.7,
137.9, 137.11, 137.13, 137.15, 137.17, Subchapter B, Sealing Requirements, §§137.31,
137.33, 137.35, 137.37, Subchapter C, Professional Conduct and Ethics, §§137.51,
137.53, 137.55, 137.57, 137.59, 137.61, 137.63, 137.65, Subchapter D, Firm
Sole Proprietorship and Governmental Entity Compliance, §§137.71,
137.73, 137.75, 137.77, and 137.79. The Board proposes this action in conjunction
with repeal of the existing Chapter 131: Practice and Procedure. Also, the
board proposes this action in conjunction with proposing five new chapters
to better organize the agency rules and procedures.
Elsewhere in this issue of the
Texas Register
, the Texas Board of Professional Engineers is publishing additional
comment information relating to the recent adoption of §131.139, concerning
Continuing Education Program, in the February 5, 2004, issue of the
As a part of the rule review required by Chapter 2001, Texas Government
Code, the Board must review and update the existing rules. Since the statutory
references in the Board Rules must be changed to reflect the new designations
in the re-codified Act, nearly every rule must be re-proposed and adopted
with the new references. The Board has chosen this time to re-organize the
existing rules, incorporate new legislative requirements, and develop a framework
to aid in future rule expansion.
Since most of the content of the proposed rules are a repeat of the existing
rules with few changes, the board will highlight substantive changes by subchapter.
The proposed rules are not numbered consecutively and reserves numbers for
future expansion.
In the proposed Subchapter A: Individual and Engineer Compliance, the board
proposes new rules to describe titles a license holder and non-license holder
may use based on new statutory provisions. In addition, the board includes
in this subchapter, the activities a license holder must perform to maintain
a license in good standing including address/employment change notification,
renewal, and continuing education. The new rules also change the existing
board requirement for renewing an expired license as mandated in the statute.
The board also re-proposed recently adopted rules describing the procedures
for claiming inactive status and for returning to active status.
In the proposed Subchapter B: Sealing Requirements, the board re-organizes
the existing rules into a more logical fashion and addresses electronic sealing
requirements. A new rule is proposed to summarize acts of misconduct relating
to sealing and signing engineering work.
In the proposed Subchapter C: Professional Conduct and Ethics, the board
re-proposes the existing rules. In addition, the board creates a new rule
from an existing rule paragraph regarding an engineer's compliance the Professional
Services Procurement Act.
In the proposed Subchapter D: Firm, Sole Proprietorship, and Governmental
Entity Compliance, the board re-organizes the existing rules from the previous
chapter that relate to activities firms, sole proprietorships, and governmental
entities must perform to maintain compliance with the Act. The new rules clarify
that it is a violation of the Act to obtain a registration using fraudulent
or misleading information including circumventing the statutory requirement
to employ a full-time professional engineer on staff. In addition, the board
proposes a new rule setting standards for compliance with the Professional
Services Procurement Act for governmental entities or the board will report
the entity to the appropriate jurisdictional authority.
Victoria J. L. Hsu, P.E., Executive Director for the board, has determined
that for the first five-year period the proposed new rules are in effect,
there will be minimal fiscal implications for state or local government as
a result of enforcing or administering the new rules since the substance of
the proposed rules comes from the current rules.
Ms. Hsu has also determined that for each year of the first five years
the new rules are in effect, the public benefit anticipated as a result of
enforcing and administering the proposed rules will be that the general public
and license holders of Texas will be able to follow more organized rules and
streamlined processes and procedures in the new rules For the same period,
there is no anticipated adverse economic effect on individuals, small or micro-businesses.
Comments may be submitted, no later than 30 days after publication, to
Victoria J. L. Hsu, P.E., Executive Director, Texas Board of Professional
Engineers, 1917 IH 35 South, Austin, Texas 78741 or faxed to her attention
at (512) 442-1414.
Subchapter A. INDIVIDUAL AND ENGINEER COMPLIANCE
22 TAC §§137.1, 137.3, 137.5, 137.7, 137.9, 137.11, 137.13, 137.15, 137.17
The new rules are proposed pursuant to the Texas Engineering
Practice Act, Occupations Code §1001.202, which authorizes the board
to make and enforce all rules and regulations and bylaws consistent with the
Act as necessary for the performance of its duties, the governance of its
own proceedings, and the regulation of the practice of engineering in this
state.
The following are the statutes, articles, or codes affected by the proposed
repeal:
Texas Administrative Code, Title 22, Part 6 Texas Board of Professional
Engineers, Chapter 137: Compliance and Professionalism- Occupations Code §1001.202
§137.1.License Holder Designations.
(a)
Pursuant to §1001.301 of the Act, a license holder
may use the following terms when representing himself or herself to public:
(1)
"engineer",
(2)
"professional engineer",
(3)
"licensed engineer",
(4)
"registered engineer",
(5)
"licensed professional engineer",
(6)
"registered professional engineer", or
(7)
any combination of words with or variation of the terms
listed in (1)-(6).
(b)
Certificates, seals, and other official documentation showing
earlier terminology shall be considered valid for all purposes.
(c)
License holders who have placed their license in an inactive
status pursuant to §37.13 of this chapter (relating to Inactive Status)
may use the terms in §137.1(a) of this section but must include the term
"inactive" in conjunction with the designation.
§137.3.Other Use of Term "Engineer".
A person may not use the name, title, or words that convey to the public
that a person is offering to perform engineering services to the public unless
licensed under the requirements of the Act. The Act allows for the use or
variation of the term "engineer" in a limited manner as summarized in this
section.
(1)
Pursuant to §1001.004(e)(1) of the Act, a person may
use the term "engineer" or variation of the term to identify the name and
trade in affiliation with an engineers' labor organization.
(2)
Pursuant to §1001.055(b)(2) of the Act, a person who
installs, operates, repairs or services any equipment or apparatus as listed
in the statute may not use the term "engineer" unless authorized by another
provision in the Act.
(3)
Pursuant to §1001.061(b)(2) of the Act, a person employed
by an operating telephone company or an affiliate of an operating telephone
company engaged strictly in the art and science of telephony may use the term
"engineer" in the person's job title or personnel classification if the person
does not offer engineering services to the public and if the designation does
not imply that the person is licensed under the Act.
(4)
Pursuant to §1001.062(b) of the Act, a person who
is a regular full-time employee of a private business entity that implements
the design or specification sealed by an engineer licensed under the Act may
use the term "engineer" in the person's job title or personnel classification
if the person does not use the designation in conjunction with an offer to
perform engineering services for the public.
(5)
Pursuant to §1001.066(2) of the Act, a person employed
by a business entity whose products and service consist of space vehicles,
services or technology required by the National Aeronautical and Space Administration
(NASA) may use the terms "engineer" or "engineering" in the person's job title
or personnel classification if the person only uses the designation in association
with the products and services related to NASA.
(6)
Pursuant to §1001.301 (f) of the Act, a person who
is a regular employee of a business entity that is engaged in engineering
activities but exempt from the licensure requirements under §§1001.057
or 100.058 of the Act may use the term "engineer" on business cards and forms
of correspondence made available to the public providing the person does not:
(A)
offer to perform engineering services to the public;
(B)
use the designation outside the scope of §1001.057
or §1001.058 to convey the ability or willingness to perform engineering
services or make an engineering judgment requiring a licensed professional
engineer.
(7)
Pursuant to §1001.406(a)(2) of the Act, a person who
has an undergraduate or graduated degree from an engineering program accredited
by ABET may use the term "graduate engineer" on the person's business cards
and in any forms of correspondence or personal communication.
(8)
Pursuant to §1001.406(b) of the Act, a person who
has an undergraduate or graduated degree from an engineering program accredited
by ABET and who is employed by a firm registered pursuant to Chapter 135 of
this title and under the direct supervision of a licensed professional engineer
may use the term "engineer" on the person's business cards and in any forms
of correspondence or personal communication.
§137.5.Notification of Address and Employer Changes.
(a)
Each license holder shall notify the board in writing not
later than 30 days after of a change in the person's personal mailing address
or employment status.
(b)
A notice informing the board of a change in employment
status shall include, as applicable, the:
(1)
full legal trade or business name of the association or
employment,
(2)
physical location and mailing address of the business,
(3)
telephone number of the business office,
(4)
type of business (corporation, assumed name, partnership,
or self-employment through use of own name),
(5)
legal relationship and position of responsibility within
the business,
(6)
effective date of this change; and
(7)
reason for this notification (changed employment or retired;
firm went out of business or changed its name or location, etc.).
§137.7.License Expiration and Renewal.
(a)
Pursuant to §1001.352 of the Act, the license holder
must renew the license annually to continue to practice engineering under
the provisions of the Act. If the license renewal requirements are not met
by the expiration date of the license, the license shall expire and the license
holder may not engage in engineering activities that require a license until
the renewal requirements have been met.
(b)
Pursuant to §1001.352 of the Act, the board will mail
a renewal notice to the last recorded address of each license holder at least
30 days prior to the date a person's license is to expire. Regardless of whether
the renewal notice is received, the license holder has the sole responsibility
to pay the required renewal fee together with any applicable increase in fees
or late fees at the time of payment.
(c)
A license holder may renew a license by submitting the
required annual renewal fee, including applicable increase in fees as required
by §1001.206 of the Act, and the continuing education program documentation
as required in §137.17 of this chapter (relating to Continuing Education
Program) to the board prior to the expiration date of the license. Payment
may be made by personal, company, or other checks drawn on a United States
bank (money order or cashier's check) payable in United States currency.
(d)
Pursuant to authority in §1001.205(b) and §1001.206(c)of
the Act, the board has established the renewal fee for the following categories
of licenses to not require the increase in professional fees:
(1)
a license holder who is 65 years of age or older,
(2)
a license holder who is disabled with a mental or physical
impairment that substantially limits the ability of the person to earn a living
as an engineer excluding an impairment caused by an addiction to the use of
alcohol, illegal drugs, or controlled substance;
(3)
a license holder who meets the exemption from licensure
requirement of §1001.057 or §1001.058 of the Act but does not claim
that exemption;
(4)
a license holder who is not practicing engineering and
has claimed inactive status with the board in accordance with the requirements
of §137.13 of this chapter (relating to Inactive Status).
(e)
Licenses will expire according to the following schedule.
(1)
Licenses originally approved in the first quarter of a
calendar year will expire on December 31.
(2)
Licenses originally approved in the second quarter of a
calendar year will expire on March 31.
(3)
Licenses originally approved in the third quarter of a
calendar year will expire on June 30.
(4)
Licenses originally approved in the fourth quarter of a
calendar year will expire on September 30.
§137.9.Renewal for Expired License.
(a)
A license holder may renew a license that has expired for
90 days or less by submitting a renewal fee to the board that is 1 and 1/2
times the normal renewal fee , any increase in fees as required by §1001.206
of the Act, and the continuing education program documentation as required
in §137.17 of this chapter.
(b)
A license holder may renew a license that has expired for
more than 90 days but less than one year by submitting to the board a renewal
fee that is 2 times the normal renewal fee , any increase in fees as required
by §1001.206 of the Act, and the continuing education program documentation
as required in §137.17 of this chapter (relating to Continuing Education
Program).
(c)
A license holder may renew a license that has expired for
more than one year but less than two years by submitting to the board a renewal
fee that is 2 times the normal renewal fee, any increase in fees as required
by §1001.206 of the Act, and the continuing education program documentation
as required in §137.17 of this chapter for each delinquent year or part
of a year.
(d)
A license which has been expired for two years may not
be renewed, but the former license holder may apply for a new license as provided
in the current Act and applicable board rules.
(e)
In strict accordance with the provisions of the Texas Education
Code §57.491, pertaining to the loan default proceedings of the Texas
Guaranteed Student Loan Corporation (TGSLC), if a license holder's name has
been provided by the TGSLC as being in default of a loan, the board shall
not renew the license of the license holder on the second renewal date following
such notification, unless the TGSLC certifies that the individual has entered
into a repayment agreement with TGSLC, or is not in default on a loan. Such
license holder shall be provided an opportunity for an informal hearing, similar
to that provided by §139.33 of this title (relating to Informal Proceedings),
before any action concerning the denial of a renewal of a license is taken
under this paragraph. A defaulted loan shall not bar the board's issuance
of an initial license if the applicant is otherwise qualified for licensure;
however, the board shall not renew said license unless the TGSLC certifies
the individual has satisfied the requirements of the Texas Education Code §57.491.
(f)
Pursuant to Texas Occupations Code §55.002, a license
holder is exempt from any increased fee or other penalty imposed in this section
for failing to renew the license in a timely manner if the license holder
provides adequate documentation, including copies of orders, to establish
to the satisfaction of the board that the license holder failed to renew in
timely manner because of the license holder was serving on active duty in
the United States armed forces outside Texas.
§137.11.Expiration and Licensed in Another Jurisdiction.
(a)
A person who was licensed in Texas and moved to another
state and, for the two years preceding the date of application for an out-of-state
renewal, who is currently licensed and has been practicing engineering in
the other state may apply for a new license pursuant to this section.
(b)
A person meeting the criteria in subsection (a) of this
section is exempt from examination requirements.
(c)
To apply for renewal, the former license holder meeting
the criteria in subsection (a) of this section, must fill out an out-of-state
renewal application form, submit documentation demonstrating licensure in
the other state, pay a renewal fee that is equal to two times the normally
required renewal fee for the license, pay any increase in fees as required
by §1001.206 of the Act as applicable, and submit documentation demonstrating
compliance with the continuing education program requirements for an expired
license as prescribed in §137.17 of this chapter (relating to Continuing
Education Program).
(d)
Any license issued to a former Texas license holder under
this section shall be assigned a new serial number.
§137.13.Inactive Status.
(a)
A license holder in good standing may request in writing
to change the status of the license to "inactive" at any time prior to license
expiration date. A license holder whose license is inactive may not practice
engineering. A license holder who has requested inactive status shall not
receive any refunds for licensing fees previously paid to the board.
(b)
A license holder whose license is inactive must pay an
annual fee as established by the board at the time of the license renewal.
If the inactive fee is not paid by the date a person's license is to expire,
the inactive renewal fee for the expired license shall be increased in the
same manner as for an active license renewal fee .
(c)
A license holder whose license is inactive is not required
to:
(1)
comply with the continuing education requirements adopted
by the board; or
(2)
take an examination for reinstatement to active status.
(d)
To return to active status, a license holder whose license
is inactive must:
(1)
submit a request in writing for reinstatement to active
status,
(2)
pay the fee for annual renewal and the fee increase required
by §1001.206 of the Act, as applicable, and
(3)
comply with the continuing education program requirements
for inactive license holders returning to practice as prescribed in §137.17(o).
(e)
A license holder may claim inactive status and return to
active only once during the year period determined by the renewal schedule
of the license. If a license holder claims inactive status and returns to
active status during the same annual renewal period, the license holder shall
comply with the full continuing education program requirements for that year.
(f)
A license holder claiming inactive status may use any term
allowed for an active license holder followed by the term "Inactive" on business
cards, stationary and other forms of correspondence. Failure to note inactive
status in this manner is a violation of the Act and board rules and is subject
to disciplinary action by the board.
(g)
A license holder on inactive status may provide a reference
statement for an applicant for licensure.
(h)
Offering or performing engineering services while the license
is inactive is a violation of the inactive status and is subject to disciplinary
action by the board.
§137.15.Replacement or New Design Certificates.
(a)
Each license holder will be issued only one license certificate.
A license holder may obtain a new license certificate to replace any license
certificate lost, destroyed, or mutilated on payment of the established fee
and verification of the status of the original license. A license holder requesting
a replacement license under this section will, if possible, surrender any
remaining portions of the original license to the board and shall file a written
statement with original signature explaining the reasons for the request for
a new certificate so that the board records will document the reason for issuance
of a new license. Replacement licenses will reflect the original serial number
of the license holder.
(b)
In the event the license design for professional engineers
is changed by the board, a license holder may obtain a license of the new
design upon payment of a fee to be established by the board and surrender
of the original license certificate.
§137.17.Continuing Education Program.
(a)
Each license holder shall meet the Continuing Education
Program (CEP) requirements for professional development as a condition for
license renewal.
(b)
Terms used in this section are defined as follows:
(1)
Professional Development Hour (PDH) - A contact hour (clock
hour) of CEP activity. PDH is the basic unit for CEP reporting.
(2)
Continuing Education Unit (CEU) - Unit of credit customarily
used for continuing education courses. One continuing education unit equals
10 hours of class in an approved continuing education course.
(3)
College/Unit Semester/Quarter Hour - Credit for course
in ABET-approved program or other related college course.
(4)
Course/Activity - Any qualifying course or activity with
a clear purpose and objective which will maintain, improve, or expand the
skills and knowledge relevant to the license holder's field of practice.
(c)
Every license holder is required to obtain 15 PDH units
during the renewal period year.
(d)
A minimum of 1 PDH per renewal period must be in the area
of professional ethics, roles and responsibilities of professional engineering,
or review of the Texas Engineering Practice Act and Board Rules.
(e)
If a license holder exceeds the annual requirement in any
renewal period, a maximum of 15 PDH units may be carried forward into the
subsequent renewal period. Professional Development Hours must not be anticipated
and cannot be used for more than one renewal period.
(f)
PDH units may be earned as follows:
(1)
Successful completion or auditing of college credit courses.
(2)
Successful completion of continuing education courses,
either offered by a professional or trade organization, university or college,
or offered in-house by a corporation, other business entity, professional
or technical societies, associations, agencies, or organizations, or other
group.
(3)
Successful completion of correspondence, on-line, televised,
videotaped, and other short courses/tutorials.
(4)
Presenting or attending qualifying seminars, in-house courses,
workshops, or professional or technical presentations made at meetings, conventions,
or conferences sponsored by a corporation, other business entity, professional
or technical societies, associations, agencies, or organizations, or other
group.
(5)
Teaching or instructing as listed in paragraphs (1) through
(4) above.
(6)
Authoring published papers, articles, books, or accepted
licensing examination items.
(7)
Active participation in professional or technical societies,
associations, agencies, or organizations, including:
(A)
Serving as an elected or appointed official;
(B)
Serving on a committee of the organization;
(C)
Serving in other official positions.
(8)
Patents Issued.
(9)
Engaging in self-directed study.
(g)
All activities described in §137.17(f) of this title
shall be relevant to the practice of a technical profession and may include
technical, ethical, or managerial content.
(h)
The conversion of other units of credit to PDH units is
as follows:
(1)
1 College or unit semester hour - 15 PDH
(2)
1 College or unit quarter hour - 10 PDH
(3)
1 Continuing Education Unit - 10 PDH
(4)
1 Hour of professional development in course work, seminars,
or professional or technical presentations made at meetings, conventions,
or conferences - 1 PDH
(5)
1 Hour of professional development through self-directed
study (Not to exceed 5 PDH) - 1 PDH
(6)
Each published paper, article, or book - 10 PDH
(7)
Active participation in professional or technical society,
association, agency, or organization (Not to exceed 5 PDH per organization)
- 1 PDH
(8)
Each patent issued - 15 PDH
(9)
Other activities shall be credited at 1 PDH for each hour
of participation in the activity.
(i)
Determination of Credit
(1)
The Board shall be the final authority with respect to
whether a course or activity meets the requirements of these rules.
(2)
The Board shall not pre-approve or endorse any CEP activities.
It is the responsibility of each license holder to assure that all PDH credits
claimed meet CEP requirements.
(3)
Credit for college or community college approved courses
will be based upon course credit established by the college.
(4)
Credit for qualifying seminars and workshops will be based
on one PDH unit for each hour of attendance. Attendance at qualifying programs
presented at professional and/or technical society meetings will earn PDH
units for the actual time of each program.
(5)
Credit for self-directed study will be based on one PDH
unit for each hour of study and is not to exceed 5 PDH per renewal period.
Credit determination for self-directed study is the responsibility of the
license holder and subject to review as required by the board.
(6)
Credit determination for activities described in subsection
(h)(4) of this section is the responsibility of the license holder and subject
to review as required by the board.
(7)
Credit for activity described in subsection (h)(7) of this
section requires that a license holder serve as an officer of the organization,
actively participate in a committee of the organization, or perform other
activities such as making or attending a presentation at a meeting or writing
a paper presented at a meeting. PDH credits are not earned until the end of
each year of service is completed.
(8)
Teaching credit is valid for teaching a course or seminar
for the first time only.
(j)
The license holder is responsible for maintaining records
to be used to support credits claimed. Records required include, but are not
limited to:
(1)
a log showing the type of activity claimed, sponsoring
organization, location, duration, instructor's or speaker's name, and PDH
credits earned; and
(2)
attendance verification records in the form of completion
certificates or other documents supporting evidence of attendance.
(k)
The license holder must submit CEP certification and a
list of each activity, date, and hours claimed that satisfy the CEP requirement
for that renewal year with the renewal application and fee.
(l)
CEP records for each license holder must be maintained
for a period of three years by the license holder.
(m)
CEP records for each license holder are subject to audit
by the board or its authorized representative.
(1)
Copies must be furnished, if requested, to the Board or
its authorized representative for audit verification purposes.
(2)
If upon auditing a license holder, the Board finds that
the activities cited do not fall within the bounds of educational, technical,
ethical, or professional management activities related to the practice of
engineering; the board may require the license holder to acquire additional
PDH as needed to fulfill the minimum CEP requirements.
(n)
A license holder may be exempt from the professional development
educational requirements for one of the following reasons listed in paragraphs
(1)-(4) of this subsection:
(1)
New license holders by way of examination shall be exempt
for their first renewal period.
(2)
A license holder serving on active duty and deployed outside
the United States, its possessions and territories, in or for the military
service of the United States for a period of time exceeding one hundred twenty
(120) consecutive days in a year shall be exempt from obtaining the professional
development hours required during that year.
(3)
License holders experiencing physical disability, illness,
or other extenuating circumstances as reviewed and approved by the board may
be exempt. Supporting documentation must be furnished to the board.
(4)
License holders who list their status as "Retired" or "Inactive"
and who further certify that they are no longer receiving any remuneration
from providing professional engineering services shall be exempt from the
professional development hours required.
(o)
A license holder may bring an inactive license to active
status by obtaining all delinquent PDH units. However, if the total number
required to become current exceeds 30 units, then 30 units shall be the maximum
number required.
(p)
Noncompliance:
(1)
If an license holder does not certify that CEP requirements
have been met for a renewal period, the license shall be considered expired
and subject to late fees and penalties.
(2)
A determination by audit that CEP requirements have been
falsely reported shall be considered to be misconduct and will subject the
license holder to disciplinary action.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on February 9, 2004.
TRD-200400882
Victoria J.L. Hsu, P.E.
Executive Director
Texas Board of Professional Engineers
Earliest possible date of adoption: March 21, 2004
For further information, please call: (512) 440-7723
22 TAC §§137.31, 137.33, 137.35, 137.37
The new rules are proposed pursuant to the Texas Engineering
Practice Act, Occupations Code §1001.202, which authorizes the board
to make and enforce all rules and regulations and bylaws consistent with the
Act as necessary for the performance of its duties, the governance of its
own proceedings, and the regulation of the practice of engineering in this
state.
The following are the statutes, articles, or codes affected by the proposed
repeal:
Texas Administrative Code, Title 22, Part 6 Texas Board of Professional
Engineers, Chapter 137: Compliance and Professionalism- Occupations Code §1001.202
§137.31.Seal Specifications.
(a)
Upon issuance of a license, each license holder is required
to obtain a seal under the requirements of §133.97 of this title (relating
to Issuance of License) and submit an impression of the seal and an original
signature to the board for board records.
(b)
All seals obtained and used by license holders shall be
capable of leaving a permanent ink or impression representation on the engineering
work, shall be of the design as illustrated in this paragraph, and may be
of two different sizes:
(1)
a pocket seal (the size commercially designated as 1-5/8-inch
seal), or
(2)
desk seal (commercially designated as a two-inch seal).
(c)
Computer-generated seals may be of a reduced size provided
that the engineer's name and number are clearly legible.
(d)
All seals obtained and used by license holders shall contain
any given name or initial combination with the surname as currently listed
with the board and in the usual written signature. Nicknames shall not be
permitted on a seal in lieu of a given name or initial combination.
(e)
Preprinting of blank forms with an engineer's seal, or
the use of decal or other seal replicas is prohibited.
(f)
When signing an engineering work, the engineer shall utilize
the designation "P.E." or other terms as described in §137.1 of this
chapter (relating to License Holder Designations). Signature reproductions,
including but not limited to rubber stamps or computer-generated signatures
(i.e., scanned images of original signatures), shall not be used in lieu of
the engineer's actual signature on the original documents. This section does
not prevent the reproduction of final, sealed and signed, original works for
distribution.
§137.33.Sealing Procedures.
(a)
The purpose of the engineer's seal is to assure the user
of the engineering product that the work has been performed or directly supervised
by the professional engineer named and to delineate the scope of the engineer's
work.
(b)
License holders shall only seal work done by them, performed
under their direct supervision as defined in §131.81 of this title, relating
to Definitions, or shall be standards or general guideline specifications
that they have reviewed and selected. Upon sealing, engineers take full professional
responsibility for that work.
(c)
When a license holder reviews and elects to use standards
or general guideline specifications, those items shall be clearly labeled
as such, shall bear the identity of the publishing entity, and shall be:
(1)
individually sealed by the license holder; or
(2)
specified on an integral design/title/contents sheet that
bears the engineer's seal, signature, and date with a statement authorizing
its use.
(d)
License holders shall take reasonable steps to ensure the
security of their physical or computer-generated seals at all times. In the
event of loss of a seal, the engineer will immediately give written notification
of the facts concerning the loss to board.
(e)
Preliminary documents released from a license holder's
control shall identify the purpose of the document, the engineer(s) of record
and the engineer license number(s), and the release date by placing the following
text or similar wording instead of a seal: "This document is released for
the purpose of (Examples: interim review, mark-up, drafting) under the authority
of (Example: Leslie H. Doe, P.E. 0112) on (date). It is not to be used for
(Examples: construction, bidding, permit) purposes."
(f)
License holders shall affix an unobscured seal and original
signature with date or electronic signature as prescribed in §137.35
of this chapter to the originals of all documents containing the final version
of any engineering work before such work is released from their control, including
the original title sheet of bound engineering reports, specifications, details,
calculations or estimates, and each original sheet of plans or drawings regardless
of size or binding. All other engineering work, including but not limited
to research reports, opinions, recommendations, evaluations, addenda, documents
produced for litigation, and engineering software shall bear the engineer's
printed name, date, signature and the designation "P.E." or other terms as
described in §137.1 of this chapter (relating to License Holder Designations).
A seal may be added on such work if required or at the engineer's discretion.
Electronic correspondence of this type shall be followed by a hard copy containing
the engineer's printed name, date, signature and the designation "P.E." or
other terms as described in §137.1 of this chapter (relating to License
Holder Designations).
(g)
Work performed by more than one license holder shall be
sealed in a manner such that all engineering can be clearly attributed to
the responsible license holder or license holders. When sealing plans or documents
on which two or more license holders have worked, the seal and signature of
each license holder shall be placed on the plan or document with a notation
describing the work done under each license holder's responsible charge.
(h)
Licensed employees of the state, its political subdivisions,
or other public entities are responsible for sealing their original engineering
work; however, such licensed employees engaged in review and evaluation for
compliance with applicable law or regulation of engineering work submitted
by others, or in the preparation of general planning documents, a proposal
for decision in a contested case or any similar position statement resulting
from a compliance review, need not seal the review reports, planning documents,
proposals for decision, or position statements.
(i)
A license holder, as a third party, may alter, complete,
correct, revise, or add to the work of another license holder when engaged
to do so by a client, provided:
(1)
the client furnishes the documentation of such work submitted
to the client by the first license holder;
(2)
the first license holder is notified in writing by the
second license holder of the engagement immediately upon acceptance of the
engagement; and
(3)
any work altered, completed, corrected, revised, or added
to shall have a seal affixed by the second license holder. The second license
holder then becomes responsible for any alterations, additions or deletions
to the original design including any effect or impact of those changes on
the original license holder's design.
(j)
A local authority may require an original seal and/or signature
on reproduced documents.
§137.35.Electronic Seals and Sealing Requirements.
(a)
Engineering work transmitted in an electronic format that
contains a computer generated seal shall be accompanied by the following text
or similar wording: "The seal appearing on this document was authorized by
(Example: Leslie H. Doe, P.E. 0112) on (date)." unless accompanied by an electronic
signature as described in this section. A license holder may use a computer-generated
representation of his or her seal on electronically conveyed work; however,
the final hard copy documents of such engineering work must contain an original
signature of the license holder(s) and date or the documents must be accompanied
by an electronic signature as described in this section. A scanned image of
an original signature shall not be used in lieu of an original signature or
electronic signature.
(b)
An electronic signature is a digital authentication process
attached to or logically associated with an electronic document and shall
carry the same weight, authority, and effects as an original signature. The
electronic signature, which can be generated by using either public key infrastructure
or signature dynamics technology, must be as follows:
(1)
unique to the person using it.
(2)
capable of verification.
(3)
under the sole control of the person using it.
(4)
linked to a document in such a manner that the electronic
signature is invalidated if any data in the document are changed.
§137.37.Sealing Misconduct.
A license holder shall be guilty of misconduct and subject to disciplinary
action if the license holder:
(1)
knowingly signs or seals any engineering document or product
if its use or implementation may endanger the health, safety, property or
welfare of the public.
(2)
signs or affixes a seal on any document or product when
the license is inactive or has been revoked, suspended, or has expired.
(3)
alters a sealed document without proper notification to
the responsible license holder.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on February 9, 2004.
TRD-200400883
Victoria J.L. Hsu, P.E.
Executive Director
Texas Board of Professional Engineers
Earliest possible date of adoption: March 21, 2004
For further information, please call: (512) 440-7723
22 TAC §§137.51, 137.53, 137.55, 137.57, 137.59, 137.61, 137.63, 137.65
The new rules are proposed pursuant to the Texas Engineering
Practice Act, Occupations Code §1001.202, which authorizes the board
to make and enforce all rules and regulations and bylaws consistent with the
Act as necessary for the performance of its duties, the governance of its
own proceedings, and the regulation of the practice of engineering in this
state.
The following are the statutes, articles, or codes affected by the proposed
repeal:
Texas Administrative Code, Title 22, Part 6 Texas Board of Professional
Engineers, Chapter 137: Compliance and Professionalism- Occupations Code §1001.202
§137.51.General Practice.
(a)
In order to safeguard, life, health and property, to promote
the public welfare, and to establish and maintain a high standard of integrity
and practice, the rules relating to professional conduct in this title shall
be binding on every person holding a license and on all firms authorized to
offer or perform engineering services in this Texas.
(b)
License holders having knowledge of any alleged violation
of the Act and/or board rules shall cooperate with the board in furnishing
such information or assistance as may be required.
(c)
A license holder shall promptly answer all inquiries concerning
matters under the jurisdiction of the board, and shall fully comply with final
decisions and orders of the board. Failure to comply with these matters will
constitute a separate offense of misconduct subject to any of the penalties
provided under §1001.502 of the Act.
(d)
Any license holder who directly or indirectly enters into
any contract, arrangement, plan, or scheme with any person, firm, partnership,
association, or corporation or other business entity which in any manner results
in a violation of §137.77 of this title (relating to Firm Registration
Compliance) shall be subject to legal and disciplinary actions available to
the board. Professional engineers shall perform or directly supervise the
engineering work of any subordinates as characterized in §131.81(10)
of this title (relating to Definitions). Under no circumstances shall engineers
work in a part-time arrangement with a firm not otherwise in full compliance
with §137.77 of this chapter (relating to Firm Registration Compliance)
in a manner that could enable such firm to offer or perform professional engineering
services.
(e)
A licensed professional engineer may offer or perform engineering
services on a full or part-time basis as a firm, sole-proprietor, or other
business entity if registered pursuant to the requirements of Chapter 135
of this title (Relating to Firms and Sole Proprietorships) .
§137.53.Engineer Standards of Compliance with Professional Procurement Services Act.
(a)
A licensed engineer shall not submit or request, orally
or in writing, a competitive bid to perform professional engineering services
for a governmental entity unless specifically authorized by state law and
shall report to the board any requests from governmental entities and/or their
representatives that request a bid or cost and/or pricing information or any
other information from which pricing or cost can be derived prior to selection
based on demonstrated competence and qualifications to perform the services.
(b)
For the purposes of this section, competitive bidding to
perform engineering services includes, but is not limited to, the submission
of any monetary cost information in the initial step of selecting qualified
engineers. Cost information or other information from which cost can be derived
must not be submitted until the second step of negotiating a contract at a
fair and reasonable cost.
(c)
This section does not prohibit competitive bidding in the
private sector.
§137.55.Engineers Shall Protect the Public.
(a)
Engineers shall be entrusted to protect the health, safety,
property, and welfare of the public in the practice of their profession. The
public as used in this section and other rules is defined as any individual(s),
client(s), business or public entities, or any member of the general population
whose normal course of life might reasonably include an interaction of any
sort with the engineering work of the license holder.
(b)
Engineers shall not perform any engineering function which,
when measured by generally accepted engineering standards or procedures, is
reasonably likely to result in the endangerment of lives, health, safety,
property, or welfare of the public. Any act or conduct which constitutes incompetence
or gross negligence, or a criminal violation of law, constitutes misconduct
and shall be censurable by the board.
(c)
Engineers shall first notify involved parties of any engineering
decisions or practices that might endanger the health, safety, property or
welfare of the public. When, in an engineer's judgment, any risk to the public
remains unresolved, that engineer shall report any fraud, gross negligence,
incompetence, misconduct, unethical or illegal conduct to the board or to
proper civil or criminal authorities.
(d)
Engineers should strive to adequately examine the environmental
impact of their actions and projects, including the prudent use and conservation
of resources and energy, in order to make informed recommendations and decisions.
§137.57.Engineers Shall be Objective and Truthful.
(a)
Engineers shall issue statements only in an objective and
truthful manner. Engineers should strive to make affected parties aware of
the engineers' professional concerns regarding particular actions or projects,
and of the consequences of engineering decisions or judgments that are overruled
or disregarded.
(b)
The issuance of oral or written assertions in the practice
of engineering which are fraudulent, deceitful, or misleading or on which
in any manner whatsoever tend to create a misleading impression constitutes
misconduct.
(c)
The engineer shall disclose a possible conflict of interest
to a potential or current client or employer upon discovery of the possible
conflict.
(d)
A conflict of interest exists when an engineer accepts
employment when a reasonable probability exists that the engineer's own financial,
business, property, or personal interests may affect any professional judgment,
decisions, or practices exercised on behalf of the client or employer. An
engineer may accept such an employment only if all parties involved in the
potential conflict of interest are fully informed in writing and the client
or employer confirms the knowledge of the potential conflict in writing. An
engineer in a conflict of interest employment shall maintain the interests
of the client and other parties as provided by §137.61 of this title
(relating to Engineers Shall Maintain Confidentiality of Clients) and other
rules and statutes.
§137.59.Engineers' Actions Shall Be Competent.
(a)
Engineers shall practice only in their areas of competence,
in a careful and diligent manner, and in conformance with standards, laws,
codes, and rules and regulations applicable to engineering practice.
(b)
The engineer shall not perform any engineering assignment
for which the engineer is not qualified by education or experience to perform
adequately and competently. However, an engineer may accept an assignment
which includes phases outside of the engineer's area of competence if those
other phases are performed by legally qualified consultants, associates, or
employees.
(c)
The engineer shall not express an engineering opinion in
deposition or before a court, administrative agency, or other public forum
which is contrary to generally accepted scientific and engineering principles
without fully disclosing the basis and rationale for such an opinion. Engineering
opinions which are rendered as expert testimony and contain quantitative values
shall be supported by adequate modeling or analysis of the phenomena described.
§137.61.Engineers Shall Maintain Confidentiality of Clients.
(a)
Engineers shall act as faithful agents for their employers
or clients.
(b)
The engineer may reveal confidences and private information
only with a fully informed client's or employer's consent, or when required
by law or court order; or when those confidences, if left undisclosed, would
constitute a threat to the health, safety or welfare of the public.
(c)
The engineer shall not use a confidence or private information
regarding a client or employer to the disadvantage of such client or employer
or for the advantage of a third party.
(d)
The engineer shall exercise reasonable care to prevent
unauthorized disclosure or use of private information or confidences concerning
a client or employer by the engineer's employees and associates.
§137.63.Engineers' Responsibility to the Profession.
(a)
Engineers shall engage in professional and business activities
in an honest and ethical manner. Engineers should strive to promote responsibility,
commitment, and ethics both in the education and practice phases of engineering.
They should attempt to enhance society's awareness of engineers' responsibilities
to the public and encourage the communication of these principles of ethical
conduct among engineers.
(b)
The engineer shall:
(1)
endeavor to meet all of the applicable professional practice
requirements of federal, state and local statutes, codes, regulations, rules
or ordinances in the performance of engineering services;
(2)
exercise reasonable care or diligence to prevent the engineer's
partners, associates, and employees from engaging in conduct which, if done
by the engineer, would violate any provision of the Texas Engineering Practice
Act, general board rule, or any of the professional practice requirements
of federal, state and local statutes, codes, regulations, rules or ordinances
in the performance of engineering services; and
(3)
exercise reasonable care to prevent the association of
the engineer's name, professional identification, seal, firm or business name
in connection with any venture or enterprise which the engineer knows, or
should have known, is engaging in trade, business or professional practices
of a fraudulent, deceitful, or dishonest nature, or any action which violates
any provision of the Texas Engineering Practice Act or board rules.
(4)
conduct engineering and related business affairs in a manner
that is respectful of the client, involved parties, and employees. Inappropriate
behaviors or patterns of inappropriate behaviors may include, but are not
limited to, misrepresentation in billing; unprofessional correspondence or
language; sale and/or performance of unnecessary work; or conduct that harasses
or intimidates another party.
(c)
The engineer shall not:
(1)
aid or abet, directly or indirectly, any unlicensed person
or business entity in the unlawful practice of engineering;
(2)
maliciously injure or attempt to injure or damage the personal
or professional reputation of another by any means. This does not preclude
an engineer from giving a frank but private appraisal of engineers or other
persons or firms when requested by a client or prospective employer;
(3)
retaliate against a person who provides reference material
for an application for a license or who in good faith attempts to bring forward
an allegation of wrongdoing;
(4)
give, offer or promise to pay or deliver, directly or indirectly,
any commission, gift, favor, gratuity, benefit, or reward as an inducement
to secure any specific engineering work or assignment;
(5)
accept compensation or benefits from more than one party
for services pertaining to the same project or assignment;
(6)
solicit professional employment in any false or misleading
advertising;
§137.65.Action in Another Jurisdiction.
(a)
The engineer shall not practice or offer to practice engineering
in any other jurisdiction in violation of the laws regulating the practice
of professional engineering in that jurisdiction. A finding by such jurisdiction
of illegal practice or offer to practice is misconduct and will subject the
engineer to disciplinary action in Texas.
(b)
Any disciplinary actions taken by another jurisdiction
on a matter which would constitute a violation of the Texas Engineering Practice
Act or board rules shall be sufficient cause for disciplinary action by this
board. A certified copy of the board Order or Final Action from another jurisdiction
shall be sufficient evidence to take disciplinary action in this state.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on February 9, 2004.
TRD-200400884
Victoria J.L. Hsu, P.E.
Executive Director
Texas Board of Professional Engineers
Earliest possible date of adoption: March 21, 2004
For further information, please call: (512) 440-7723
22 TAC §§137.71, 137.73, 137.75, 137.77, 137.79
The new rules are proposed pursuant to the Texas Engineering
Practice Act, Occupations Code §1001.202, which authorizes the board
to make and enforce all rules and regulations and bylaws consistent with the
Act as necessary for the performance of its duties, the governance of its
own proceedings, and the regulation of the practice of engineering in this
state.
The following are the statutes, articles, or codes affected by the proposed
repeal:
Texas Administrative Code, Title 22, Part 6 Texas Board of Professional
Engineers, Chapter 137: Compliance and Professionalism- Occupations Code §1001.202
§137.71.Firm Names.
Pursuant to §1001.405(e), a business entity that is not registered
with the board may not represent to the public by way of letters, signs, or
symbols as a part of any sign, directory, listing, contract, document, pamphlet,
stationery, advertisement, signature, or business name that it is engaged
in the practice of engineering by using the terms:
(1)
"engineer,"
(2)
"engineering,"
(3)
"engineering services,"
(4)
"engineering company,"
(5)
"engineering, inc.,"
(6)
"professional engineers,"
(7)
"licensed engineer,"
(8)
"registered engineer,"
(9)
"licensed professional engineer,"
(10)
"registered professional engineer," or
(11)
"engineered," or
(12)
any abbreviation or variation of those terms listed in
paragraphs (1)-(11) of this section, or directly or indirectly use or cause
to be used any of those terms in combination with other words.
§137.73.Firm Record Modifications.
(a)
Each registered firm shall notify the board in writing
not later than 30 days after of a change in the business entity's:
(1)
physical or mailing address, electronic mail address, telephone
or facsimile number or other contact information;
(2)
officers or directors;
(3)
employment status of the professional engineers of the
firm; or
(4)
operation including dissolution of the firm or that the
firm no longer offers to provide or is not providing engineering services
to the public in Texas.
(b)
Notice shall include, as applicable, the :
(1)
full legal trade or business name entity,
(2)
the firm registration number,
(3)
telephone number of the business office,
(4)
name and license number of the license holder employed
or leaving the entity,
(5)
description of the change, and
(6)
effective date of this change.
§137.75.Registration Renewal and Expiration.
(a)
The certificate of registration shall be valid until the
last day of the twelfth month following the date of issuance of the certificate
of registration. At least one month in advance of the date of the expiration,
the board shall notify each firm holding a certificate of registration of
the date of the expiration and the amount of the fee that shall be required
for its renewal for one year. The renewal notice shall be mailed to the last
address provided by the firm to the board. The certificate of registration
may be renewed by completing the renewal application and paying the annual
registration renewal fee set by the board. It is the sole responsibility of
the firm to pay the required renewal fee prior to the expiration date, regardless
of whether the renewal notice is received.
(b)
A certificate of registration which has been expired for
less than one year may be renewed by completing the renewal statement sent
by the board and payment of two (2) times the normal renewal fee. When renewing
an expired certificate of registration, the authorized official of the firm
shall submit a written a statement of whether engineering services were offered,
pending, or performed for the public in Texas during the time the certificate
of registration was expired.
(c)
If a certificate of registration has been expired for more
than one year, the firm must re-apply for certification under the laws and
rules in effect at the time of the new application and shall be issued a new
certificate of registration serial number if the new application is approved.
(d)
The renewal fee will not be refunded.
§137.77.Firm Registration Compliance.
(a)
Any firm, sole-proprietorship, partnership, association,
corporation, or other business entity shall not offer or perform engineering
services to the public unless registered with the board pursuant to the requirements
of Chapter 135 (Relating to Firms and Sole Proprietorships) of this title.
(b)
Any firm, sole-proprietorship, partnership, association,
corporation, or other business entity shall provide that at least one full-time
license holder is employed with the entity and that the license holder performs
or directly supervises all engineering work and activities that require a
license that is performed in the primary, branch, remote, or project office(s).
(c)
No engineering services are to be offered to or performed
for the public in Texas by a firm while that firm does not have a current
certificate of registration.
(d)
Pursuant to §1001.405(g) of the Act, a business entity
that offers or is engaged in the practice of engineering in Texas and is found
to not be registered with the board shall register with the board pursuant
to the requirements of Chapter 135 of this title within 30 days of written
notice from the board.
(e)
A business entity that offers or is engaged in the practice
of engineering in Texas and that fails to comply with paragraph (d) of this
section or that has previously been registered with the board and whose registration
has expired shall be considered to be in violation of the Act and board rules
and will be subject to administrative penalties as set forth in §§1001.501-508
of the Act and §139.35 of this title (relating to Penalties and Sanctions).
(f)
The board may revoke a certificate of registration that
was obtained in violation of the Act and/or board rules including, but not
limited to, fraudulent or misleading information submitted in the application
or lack of employee relationship with the designated professional engineer
for the firm.
(g)
If a firm has notified the board that it is no longer offering
or performing engineer services to the public, including the absence of a
regular, full-time employee who is a professional engineer licensed in Texas,
the certificate of registration record will be placed in inactive status until
the board is notified of resumed offering and services. If firm certificate
of registration is inactive, the certificate of registration will expire under
the same requirements of subsections (d) and (e) of this section unless renewed.
§137.79.Standards for Compliance with Professional Services Procurement Act.
(a)
When procuring professional engineering services, a governmental
entity and/or its representative(s) shall comply with the requirements of
Subchapter A, Chapter 2254, Texas Government Code and shall select and award
on the basis of demonstrated competence and qualifications to perform the
services for a fair and reasonable price and shall not select services or
award contracts on the basis of competitive bidding.
(b)
A governmental entity and/or its representative(s) shall
follow the process and procedures as prescribed in Chapter 2254, Texas Government
Code, or the board shall report the governmental entity to the appropriate
jurisdictional authority.
(c)
A governmental entity and/or its representative(s) is responsible
for determining if professional engineering services are required based on
if the services, contract or activity is included in the practice of engineering
as defined in §1001.003 of the Act. A governmental entity may refer to
or request an advisory opinion from the board to assist in this decision.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on February 9, 2004.
TRD-200400885
Victoria J.L. Hsu, P.E.
Executive Director
Texas Board of Professional Engineers
Earliest possible date of adoption: March 21, 2004
For further information, please call: (512) 440-7723
The Texas Board of Professional Engineers proposes new rules in Texas
Administrative Code, Title 22, Part 6 Texas Board of Professional Engineers,
Chapter 139: Enforcement. The proposed new rules are: Subchapter A, §139.1,
Subchapter B, §§139.11, 139.13, 139.15, 139.17, 139.19, 139.21,
139.23, Subchapter C, §§139.31, 139.33, 139.35, Subchapter D, §§139.41,
139.43, 139.45, 139.47, and Subchapter E, §139.61. The Board proposes
this action in conjunction with repeal of the existing Chapter 131: Practice
and Procedure. Also, the board proposes this action in conjunction with proposing
five new chapters to better organize the agency rules and procedures.
As a part of the rule review required by Chapter 2001, Texas Government
Code, the Board must review and update the existing rules. Since the statutory
references in the Board Rules must be changed to reflect the new designations
in the re-codified Act, nearly every rule must be re-proposed and adopted
with the new references. The Board has chosen this time to re-organize the
existing rules, incorporate new legislative requirements, and develop a framework
to aid in future rule expansion.
Since most of the content of the proposed rules are a repeat of the existing
rules with few changes, the board will highlight substantive changes by subchapter.
The rules proposed are not number consecutively and reserves numbers for future
expansion.
In the proposed Subchapter A: Enforcement Authority, the board re-proposes
existing rule language related to the enforcement authority of the board.
In the proposed Subchapter B: Complaint Process and Procedure, the board
re-proposed the recently adopted rule language regarding the receipt, prioritizing,
investigating, and reporting of complaints.
In the proposed Subchapter C: Enforcement Proceedings, the board proposes
new rules to better organize and present the enforcement actions of the board.
In the new rules, the board includes enforcement actions that can apply to
both license holders and other individuals and entities. The board also updates
and re-poses the existing sanction considerations and recommended sanction
tables. The proposed tables now include sanctions and penalties for practicing
while the license is in inactive status and for failure to meet the continuing
education program requirements.
In the proposed Subchapter D: Special Disciplinary Provisions for License
Holders, the board re-proposed the recently adopted rules relating to the
board's authority to order restitution in some instances and to set conditions
of probation for those with probated license suspensions. In addition, the
board proposes rules to clarity the board authority relating to license holders
with a felony conviction, violation of felony probation or parole, or revocation
of mandatory supervision in accordance with Chapter 53, Texas Occupations
Code.
In the proposed Subchapter E: Hearings, the board proposes to adopt the
rules of the State Office of the Administrative Hearings by reference to facilitate
accurate hearing procedures.
Victoria J. L. Hsu, P.E., Executive Director for the board, has determined
that for the first five-year period the proposed rules are in effect, there
will be minimal fiscal implications for state or local government as a result
of enforcing or administering the new rules since the substance of the proposed
rules comes from the current rules.
Ms. Hsu has also determined that for each year of the first five years
the new rules are in effect, the public benefit anticipated as a result of
enforcing and administering the proposed rules will be that the general public
and license holders of Texas will be able to follow more organized rules and
streamlined processes and procedures in the new rules For the same period,
there is no anticipated adverse economic effect on small or micro-businesses.
Comments may be submitted, no later than 30 days after publication, to
Victoria J. L. Hsu, P.E., Executive Director, Texas Board of Professional
Engineers, 1917 IH 35 South, Austin, Texas 78741 or faxed to her attention
at (512) 442-1414.
Subchapter A. ENFORCEMENT AUTHORITY
22 TAC §139.1
The new rules are proposed pursuant to the Texas Engineering
Practice Act, Occupations Code §1001.202, which authorizes the board
to make and enforce all rules and regulations and bylaws consistent with the
Act as necessary for the performance of its duties, the governance of its
own proceedings, and the regulation of the practice of engineering in this
state.
The following are the statutes, articles, or codes affected by the proposed
new rules:
Texas Administrative Code, Title 22, Part 6 Texas Board of Professional
Engineers, Chapter 139: Enforcement- Occupations Code §§1001.202
§139.1.General.
The board will conduct inquiries into situations which allegedly violate
the requirements of the Texas Engineering Practice Act (Act) and board rules
concerning the practice of engineering, representations which imply the legal
capacity to offer or perform engineering services for the public, and situations
which are considered by the board to pose or have caused harm to the public.
Situations that represent a repeat offense, a danger or nuisance to the public
or cannot be reasonably resolved through voluntary compliance, will be disposed
of by administrative, civil, or criminal proceedings as authorized by law.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on February 9, 2004.
TRD-200400886
Victoria J.L. Hsu, P.E.
Executive Director
Texas Board of Professional Engineers
Earliest possible date of adoption: March 21, 2004
For further information, please call: (512) 440-7723
22 TAC §§139.11, 139.13, 139.15, 139.17, 139.19, 139.21, 139.23
The new rules are proposed pursuant to the Texas Engineering
Practice Act, Occupations Code §1001.202, which authorizes the board
to make and enforce all rules and regulations and bylaws consistent with the
Act as necessary for the performance of its duties, the governance of its
own proceedings, and the regulation of the practice of engineering in this
state.
The following are the statutes, articles, or codes affected by the proposed
new rules:
Texas Administrative Code, Title 22, Part 6 Texas Board of Professional
Engineers, Chapter 139: Enforcement- Occupations Code §§1001.202
§139.11.Complaints-General.
(a)
The board shall initiate or receive and investigate a complaint
against a license holder or other person who may have violated the Act or
board rules.
(b)
The board shall maintain the confidentiality of the complaint
from receipt through the investigation of the complaint. The complaint information
will no longer be confidential after formal charges are filed or after the
investigation is closed.
(c)
The provisions of the Act and the provisions of the Administrative
Procedure Act , Chapter 2001, Texas Government Code, shall apply to the conduct
of all investigations and administrative actions in the board's processing
of a complaint. In addition, the board may promulgate other procedural rules
consistent with the Act or Chapter 2001, Texas Government Code.
§139.13.Filing a Complaint.
(a)
A person who wishes to make a complaint with the board
may obtain assistance, filing information, or contact the board by:
(1)
visiting the board website at www.tbpe.state.tx.us;
(2)
sending electronic mail to peboard@tbpe.state.tx.us;
(3)
sending written correspondence to: 1917 IH 35 South, Austin,
Texas 78741;
(4)
sending fax to (512) 442-1414;
(5)
telephoning the board office at (512) 440-7723; or
(6)
visiting the board office located at 1917 IH 35 South,
Austin, Texas.
(b)
A person may submit the complaint in writing through mail,
electronic mail or facsimile. An oral or verbal complaint may be made by telephone
or in person.
(c)
A complaint submitted orally or verbally containing sufficient
information to determine jurisdiction shall be logged and assigned a case
number; however, a written and signed complaint must be submitted within 30
days of the initial oral or verbal complaint or the board may dismiss the
complaint as frivolous if applicable as defined in §139.21(c).
(d)
A complaint shall be on the forms provided by the board
or in written format and contain the following information as applicable:
(1)
complainant's name and contact information;
(2)
description of the alleged violation ;
(3)
name and contact information of the subject or parties
of the complaint, if known;
(4)
sections of the Act and board rules alleged violated, if
known;
(5)
name and contact information of witnesses, if known; and
(6)
sources of other pertinent information, if known.
(e)
Contact information may include, but is not limited to,
name, address, telephone number, email address, business name, business address,
business telephone number, and websites.
(f)
A complaint shall contain sufficient information for the
board to determine whether it has authority to resolve the complaint.
(g)
Anonymous complaints will be received but will not be investigated
unless sufficient information and evidence exists to demonstrate harm or potential
harm to the public or violation of Act or board rules. Anonymous complaints
that do not contain sufficient evidence and information to initiate an investigation
will be logged and filed for information purposes only.
§139.15.Processing a Complaint.
(a)
Upon receipt of a complaint, the board staff shall assign
the complaint a complaint number.
(b)
The board staff shall review the complaint. If the complaint
does not contain sufficient information to determine whether the board has
jurisdiction or is determined to be outside the board's authority, the board
staff may interview the complainant to develop additional information. If
the board staff determines that a potential violation exists, the board staff
will proceed with the investigation. If board staff concludes that the complaint
resulted from a misunderstanding, is outside the jurisdiction of the board,
or is without merit, the board staff will recommend to the executive director
that the investigation be closed and that the complaint be dismissed. If the
executive director concurs with the recommendation, the complainant will be
so notified and the investigation will be closed. The board staff shall write
a dismissal explanation for the dismissed complaint and close the file.
(c)
If a potential violation exists and the board has jurisdiction
over and authority to resolve the complaint, the board staff shall set a priority
for the complaint and initiate disciplinary proceedings against the subject
of the complaint. In setting the priority for complaints, a complaint from
the public or initiated by the board or board staff that alleges action that
could potentially harm the public shall be rated highest priority and investigation
for this type complaint takes precedence over all other complaints. Complaints
rating highest priority may include, but are not limited to, those complaints
involving incompetence, gross negligence, plan stamping, or practicing without
a license. The board staff shall report status of the investigation and preliminary
determination to the executive director and complainant within 45 days of
receiving complaint that rates a high priority.
§139.17.Investigating a Complaint.
(a)
The board staff shall be responsible for investigating
the complaint including determining the need for and obtaining any additional
evidence that may be required to proceed with disciplinary action.
(b)
Board staff and persons acting in the official capacity
of the board have authority to:
(1)
informally or formally request information and documentation
from the involved parties,
(2)
perform site visits or inspections to investigate the complaint,
(3)
contract technical consultants and other services to investigate
and evaluate aspects of the complaint or evidence,
(4)
subpoena information,
(5)
seek the assistance of local and state law enforcement
authorities, and/or
(6)
seek out any other investigative action needed to assist
in the resolution of the complaint.
(c)
The respondent will be afforded the opportunity to respond
to the complaint to show that the actions which precipitated the complaint
are not in violation of the Act or board rules.
(d)
At any time before a complaint is resolved, board staff
may conduct further investigation including, but not limited to, obtaining
second or third opinions, obtaining supporting documents, or interviewing
other witnesses depending on the case at hand.
(e)
If the board staff will likely dismiss the complaint because
the investigation of the complaint does not produce sufficient evidence to
substantiate a violation of the Act or board rules, the board staff will inform
the complainant of the rationale for the determination prior to reporting
the dismissal to the board.
(f)
Withdrawal of a complaint shall not be a reason to terminate
or disrupt an ongoing investigation.
(g)
At least quarterly during the investigation of the complaint,
the board shall notify the parties of the complaint of the complaint status
unless the notice would jeopardize an undercover investigation and such notation
shall be included in the complaint file.
§139.19.Final Resolution of Complaint.
(a)
Upon the completion of an investigation, the board staff
shall present to the executive director a report of investigation and recommendation
of final resolution of the complaint. If sufficient evidence and documentation
exists to substantiate one or more violations of the Act or board rules has
occurred, the board shall proceed as prescribed in §139.31 of this chapter
(relating to Enforcement Actions for Violations of the Act). These actions
may include, but are not limited to, one or more of the following:
(1)
enter into an agreement of voluntary compliance;
(2)
agree to informal consent order or agreed board order with
administrative penalty and compliance requirement;
(3)
referral of injunctive or criminal actions to the proper
authorities;
(4)
referral of a final order to the State Office of Administrative
Hearings; or
(5)
other action as provided by law.
(b)
If sufficient evidence and documentation does not exist
to substantiate one or more violations of the Act or board rules has occurred
and disciplinary action is not warranted, the board staff shall recommend
to dismiss the complaint and report the dismissal to the board.
§139.21.Reporting Complaint Status to the Board.
(a)
The executive director shall provide a summary report on
the status of all complaints at the regularly scheduled board meetings. The
report shall include:
(1)
number of complaints filed;
(2)
number of complaints received in each category;
(3)
number of complaints initiated by the board;
(4)
number of complaints filed by persons other than the board;
(5)
the average length of time to resolve a complaint by totaling
all the days accumulated for all resolved complaints and dividing by the total
number of resolved complaints during the reporting period;
(6)
number of complaints that are unresolved, including:
(A)
by those filed by the board , or
(B)
by those filed by persons other than the board, and
(C)
including the average length of time the unresolved complaints
have been on file obtained by summing the days accumulated for all unresolved
complaints and dividing by the total number of unresolved complaints;
(7)
number of dismissed cases; and
(8)
number of complaints resulting in disciplinary action including
the disciplinary action taken and whether the action was imposed by stipulation,
agreed settlement, consent order, default, or order following a contested
case hearing.
(b)
The executive director shall report dismissed complaints
to the board and shall include in the report the following information:
(1)
name of the complainant,
(2)
name of the person who is subject of the complaint,
(3)
the basis of the complaint, and
(4)
the reason for the dismissal of the complaint.
(c)
If the executive director determines that the complaint
filed is frivolous in nature and was made for the purpose of harassment and
does not demonstrate harm to the public, the executive director shall redact
the license holder's name and other personal information from the report to
the board and any subsequent requests for information regarding the case.
The board shall approve this action upon acceptance of the report.
§139.23.Technical Consultants.
(a)
The executive director may employ or contract with or gain
technical advice from technical consultants, including, but not limited to,
advisors, consultants, engineers and other persons to provide technical assistance
in investigations and disciplinary proceedings. In the course of performing
the person's official duties for the board, technical consultants are immune
from civil liability and may not be subject to a suit for damages for any
investigation, report, recommendation, statement, evaluation, finding made,
or other action taken, except for when an action involves fraud, conspiracy,
or malice.
(b)
The executive director may select technical consultants
on the basis of their qualifications and may maintain a list of experts as
technical consultants. The selection process may require documentation of
a technical consultants qualifications including transcripts; verifiable experience
records; references statements; texts, articles, and other published works;
and compliance history and records. The board may interview prospective technical
consultants. The board shall review a potential technical consultant's documentation
to determine if the person's records demonstrate expert status and competency
in a technical area. A technical consultant must inform the board and decline
an assignment if the resource has personal knowledge of the complaint, parties
involved in the complaint, or other conflict of interest.
(c)
During the course of an investigation, the executive director
may dismiss a technical consultant that does not possess the technical knowledge
to assist in the investigation or for any other reason relevant to the investigation.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on February 9, 2004.
TRD-200400887
Victoria J.L. Hsu, P.E.
Executive Director
Texas Board of Professional Engineers
Earliest possible date of adoption: March 21, 2004
For further information, please call: (512) 440-7723
22 TAC §§139.31, 139.33, 139.35
The new rules are proposed pursuant to the Texas Engineering
Practice Act, Occupations Code §1001.202, which authorizes the board
to make and enforce all rules and regulations and bylaws consistent with the
Act as necessary for the performance of its duties, the governance of its
own proceedings, and the regulation of the practice of engineering in this
state.
The following are the statutes, articles, or codes affected by the proposed
new rules:
Texas Administrative Code, Title 22, Part 6 Texas Board of Professional
Engineers, Chapter 139: Enforcement- Occupations Code §§1001.202
§139.31.Enforcement Actions for Violations of the Act.
(a)
Under the authority and provisions of §1001.201, 1001.202,
and Subchapters J, K, and L of the Texas Engineering Practice Act (Act), the
board shall take action against a person or entity for a violation of the
Act and/or board rules. An action may be composed of one or more of the following:
(1)
revocation of a license;
(2)
suspension of a license;
(3)
probation of a suspended license pursuant to subsection
(m) of this section;
(4)
refusal to renew a license;
(5)
issuance of a formal or informal reprimand;
(6)
notice to cease and desist;
(7)
voluntary compliance agreement; or
(8)
assessment of an administrative penalty under Subchapter
K the Act.
(b)
All actions issued by the board will take the form of a
board order and shall be permanently recorded and made available upon request
as public information. Except for an informal reprimand, all enforcement actions
shall be published in the board newsletter and on the board website, may be
released in a press release, and shall be transmitted to the National Council
of Examiners for Engineering and Surveying.
(c)
Upon determination that sufficient probable cause exists
to indicate that a violation of law or rules may have occurred, the executive
director shall notify the person or entity, hereafter referred to in this
section as "respondent," by personal service or by certified or registered
mail of the alleged violation. The respondent shall be afforded an opportunity
to present rebuttals, arguments and evidence to the board prior to the initiation
of disciplinary proceedings. If a respondent does not respond, the board may
proceed with a contested case hearing.
§139.33.Informal Proceedings.
If, after evaluation of the respondent's response a violation appears
evident, the executive director shall initiate enforcement action. Before
proceeding with the formal contested case hearing process, the respondent
shall have an opportunity to resolve the allegations informally.
(1)
The executive director may also offer the respondent a
consent order that will be presented to the board for acceptance or rejection.
If the respondent declines such an offer, or if the board rejects it, the
procedures in paragraphs (2) or (3) of this subsection will be followed.
(2)
The respondent may request an informal conference to present
additional evidence and discuss details of the allegation. Upon receipt of
such a request the executive director shall schedule a conference at the board
office or other location, and shall appoint an informal conference committee
composed of one board member or board representative, the executive director
or executive director's designee, and legal counsel; the committee may meet
and act provided that no more than one committee member is absent. Other persons
designated by the respondent or the executive director may be present as resources
or as legal counsel to respondent. The informal conference committee shall
hear the details of the allegations and shall recommend:
(A)
dismissal;
(B)
a proposal for an agreed board order for disciplinary actions
that will be presented to the board for acceptance or rejection; or
(C)
scheduling of a formal hearing.
(3)
Any board action under this subsection which is not informally
disposed by agreed or consent order, will be considered a contested case and
will be handled in accordance with applicable law and board rules.
§139.35.Sanctions and Penalties.
(a)
The board, the executive director, an administrative law
judge, and the participants in an informal conference may arrive at a greater
or lesser sanction than suggested in these rules. The minimum administrative
penalty shall be $100 per violation. The maximum administrative penalty shall
be $3000 per violation. Pursuant to §1001.502(a) of the Act, each day
a violation continues or occurs is considered a separate violation for the
purpose of assessing an administrative penalty. Allegations and disciplinary
actions will be set forth in the final board order and the severity of the
disciplinary action will be based on the following factors:
(1)
the seriousness of the violation, including:
(A)
the nature, circumstances, extent, and gravity of the prohibited
act; and
(B)
the hazard or potential hazard created to the health, safety,
or economic welfare of the public;
(2)
the history of prior violations of the respondent;
(3)
the severity of penalty necessary to deter future violations;
(4)
efforts or resistance to efforts to correct the violations;
(5)
the economic harm to property or the environment caused
by the violation; and
(6)
any other matters impacting justice and public welfare,
including any economic benefit gained through the violations.
(b)
The following is a table of suggested sanctions the board
may impose against license holders for specific violations of the Act or board
rules:
(c)
The following is a table of suggested sanctions that may
be imposed against a person or business entity for specific violations of
the Act or board rules:
(d)
The following is a table of suggested sanctions that may
be imposed against a person or business entity for violations of the Act or
board rules involving firm/sole proprietorship registration:
(e)
The following is a table of suggested sanctions that may
be imposed against a governmental entity and/or its representative for violations
of the Act or board rules:
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on February 9, 2004.
TRD-200400888
Victoria J.L. Hsu, P.E.
Executive Director
Texas Board of Professional Engineers
Earliest possible date of adoption: March 21, 2004
For further information, please call: (512) 440-7723
Subchapter B. APPLICATION FOR LICENSE
Subchapter C. REFERENCES
Subchapter D. ENGINEERING EXPERIENCE
Subchapter E. EDUCATION
Subchapter F. EXAMINATIONS
Subchapter G. BOARD REVIEW OF APPLICATION
Subchapter H. LICENSING
2.
REGISTRATION OF FIRMS
Subchapter I PROFESSIONAL CONDUCT AND ETHICS
Subchapter J. COMPLIANCE AND ENFORCEMENT
Subchapter K. COMPLAINTS
Subchapter L. HEARINGS-CONTESTED CASES
Subchapter M. POLICY ADVISORY OPINIONS
Chapter 131.
ORGANIZATION AND ADMINISTRATION
Subchapter B. ORGANIZATION OF THE BOARD STAFF
Subchapter C. MEETINGS
Subchapter D. FISCAL MATTERS
Subchapter E. COOPERATIVE AFFILIATIONS
Subchapter F. ADMINISTRATION
Subchapter G. ADVISORY OPINIONS
Chapter 133.
LICENSING
Subchapter B. PROFESSIONAL ENGINEER LICENSES
Subchapter C. APPLICATION REQUIREMENTS
Subchapter D. EDUCATION
Subchapter E. EXPERIENCE
Subchapter F. REFERENCE DOCUMENTATION
Subchapter G. EXAMINATIONS
Subchapter H. REVIEW PROCESS OF APPLICATIONS AND LICENSE ISSUANCE
Chapter 135.
FIRMS AND SOLE PROPRIETORSHIPS REGISTRATIONS
Chapter 137.
COMPLIANCE AND PROFESSIONALISM
Subchapter B. SEALING REQUIREMENTS
Subchapter C. PROFESSIONAL CONDUCT AND ETHICS
Subchapter D. FIRM, SOLE PROPRIETORSHIP AND GOVERNMENTAL ENTITY COMPLIANCE
Chapter 139.
ENFORCEMENT
Subchapter B. COMPLAINT PROCESS AND PROCEDURES
Subchapter C. ENFORCEMENT PROCEEDINGS
Subchapter D. SPECIAL DISCIPLINARY PROVISIONS FOR LICENSE HOLDERS