80C72(2) PB

 

SECTION _____.  CONFORMING AMENDMENT.  Subtitle B, Title 12, Occupations Code, is amended by adding Chapter 1959 to read as follows:

CHAPTER 1959. FIRE EXTINGUISHER SERVICE AND INSTALLATION

SUBCHAPTER A.  GENERAL PROVISIONS

Revised Law

Sec. 1959.001.  PURPOSE.  The purpose of this chapter is to safeguard lives and property by:

(1)  regulating:

(A)  the leasing, selling, installing, and servicing of portable fire extinguishers; and

(B)  the planning, certifying, installing, and servicing of fixed fire extinguisher systems; and

(2)  prohibiting portable fire extinguishers, fixed fire extinguisher systems, or extinguisher equipment that is not labeled or listed by a testing laboratory approved by the department.  (V.T.I.C. Art. 5.43-1, Sec. 1.)

Source Law

Sec. 1.  The purpose of this article is to regulate the leasing, renting, selling, installing, and servicing of portable fire extinguishers and the planning, certifying, installing, or servicing of fixed fire extinguisher systems, and to prohibit portable fire extinguishers, fixed fire extinguisher systems, and extinguisher equipment not labeled or listed by a testing laboratory approved by the State Board of Insurance, in the interest of safeguarding lives and property.

Revisor's Note

(1)  Section 1, V.T.I.C. Article 5.43-1, refers to the "State Board of Insurance."  Chapter 685, Acts of the 73rd Legislature, Regular Session, 1993, abolished the State Board of Insurance and transferred its functions to the commissioner of insurance and the Texas Department of Insurance. Throughout this chapter, the revised law substitutes, as appropriate, references to the commissioner or the department for references to the State Board of Insurance.

(2)  Section 1, V.T.I.C. Article 5.43-1, refers to the "leasing, renting, selling, installing, and servicing of portable fire extinguishers."  The revised law omits the reference to "renting" because that term is included within the meaning of "leasing." Similar changes are made throughout this chapter.

Revised Law

Sec. 1959.002.  DEFINITIONS.  In this chapter:

(1)  "Commissioner" means the commissioner of insurance.

(2)  "Department" means the Texas Department of Insurance.

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

(4)  "Fixed fire extinguisher system" means an assembly of piping, conduits, or containers that convey liquid, powder, or gases to dispersal openings or devices protecting one or more hazards by suppressing or extinguishing fires.

(5)  "Hydrostatic testing" means pressure testing by hydrostatic methods.

(6)  "Insurance agent" means:

(A)  an individual, firm, or corporation licensed under:

(i)  Subchapter E, Chapter 981, Insurance Code; or

(ii)  Subchapters A-E or G, Chapter 4051, Insurance Code; or

(B)  an individual authorized to represent an insurance fund or pool created by a municipality, county, or other political subdivision of this state under Chapter 791, Government Code.

(7)  "Portable fire extinguisher" means any device that contains liquid, powder, or gases for suppressing or extinguishing fires.

(8)  "Registered firm" means a firm that holds a registration certificate.

(9)  "Service" and "servicing" mean servicing a portable fire extinguisher or a fixed fire extinguisher system by inspecting, charging, filling, maintaining, recharging, refilling, repairing, or testing.  (V.T.I.C. Art. 5.43-1, Sec. 3; New.)

Source Law

Sec. 3.  As used in this article the following terms have the meanings specified in this section.

(a)  "Firm" means any person, partnership, corporation, or association.

(b)  "Hydrostatic testing" means pressure testing by hydrostatic methods.

(c)  "Portable fire extinguisher" means any device that contains liquid, powder, or gases for suppressing or extinguishing fires.

(d)  "Service and servicing" means servicing portable fire extinguishers or fixed fire extinguisher systems by inspecting, charging, filling, maintaining, recharging, refilling, repairing, or testing.

(e)  "Fixed fire extinguisher systems" means those assemblies of piping, conduits, or containers that convey liquid, powder, or gases to dispersal openings or devices protecting one or more hazards by suppressing or extinguishing fires.

(f)  [as added Acts 71st Leg., R.S., Ch. 762]  "Registered firm" means a person, partnership, corporation, or association that holds a current certificate of registration.

(f)  [as added Acts 71st Leg., R.S., Ch. 823]  "Insurance agent" means:

(1)  a person, firm, or corporation licensed under Article 21.14 or 1.14-2 of this code;

(2)  a salaried, state, or special agent; or

(3)  a person authorized to represent an insurance fund or pool created by a city, county, or other political subdivision of the state under The Interlocal Cooperation Act (Article 4413(32c), Vernon's Texas Civil Statutes).

Revisor's Note

(1)  For purposes of the Insurance Code and other insurance laws, including the law being revised in this chapter, Section 31.001, Insurance Code, defines "commissioner" and "department" as "commissioner of insurance" and "Texas Department of Insurance," respectively.   The revised law includes these definitions in this chapter for accuracy and for the convenience of the reader.

(2)  Section 3(a), V.T.I.C. Article 5.43-1, refers to "any person, partnership, corporation, or association."  The revised law substitutes "individual" for the reference to "person" because it is clear from the context that "person" means an individual.  The revised law also substitutes "individual" for "person" because the Code Construction Act definition of "person," Section 311.005(2), Government Code, which applies to the Occupations Code, did not apply to V.T.I.C. Article 5.43-1. The use of "individual" avoids the erroneous application of the Code Construction Act definition of "person."  Similar changes are made throughout this chapter.

(3)  Section 3(f)(1), V.T.I.C. Article 5.43-1, as added by  Section 1, Chapter 823, Acts of the 71st Legislature, Regular Session, 1989, refers to an insurance agent "licensed under Article 21.14 or 1.14-2 of this code."  V.T.I.C Article 21.14 was revised as Subchapters A-E and G, Chapter 4051, Insurance Code, and those portions of V.T.I.C. Article 1.14-2 relating to licensing were revised as Subchapter E, Chapter 981, Insurance Code. The revised law is drafted accordingly.

(4)  Section 3(f)(2), V.T.I.C. Article 5.43-1, as added by Section 1, Chapter 823, Acts of the 71st Legislature, Regular Session, 1989, refers to "a salaried, state, or special agent."  The revised law omits the reference to "salaried, special, or state agent" because those are obsolete terms for types of property insurance agents that are included in the category of agents licensed under Subchapters A-E and G, Chapter 4051, Insurance Code.

(5)  Section 3(f)(3), V.T.I.C. Article 5.43-1, as added by Section 1, Chapter 823, Acts of the 71st Legislature, Regular Session, 1989, refers to "an insurance fund or pool created … under The Interlocal Cooperation Act (Article 4413(32c), Vernon's Texas Civil Statutes)." Article 4413(32c), Vernon's Texas Civil Statutes, was revised as Chapter 791, Government Code.  The revised law is drafted accordingly.

(6)  Section 3(f), V.T.I.C. Article 5.43-1, as added by Section 2, Chapter 762, Acts of the 71st Legislature, Regular Session, 1989, refers to an entity that "holds a current certificate of registration."  The revised law omits "current" as unnecessary because the word does not add to the clear meaning of the law.  For example, a document purporting to be a certificate of registration is no longer a certificate of registration if it is expired.

[Sections 1959.003-1959.050 reserved for expansion]

SUBCHAPTER B.  POWERS AND DUTIES OF COMMISSIONER,

DEPARTMENT, AND STATE FIRE MARSHAL

Revised Law

Sec. 1959.051.  ADMINISTRATION OF CHAPTER.  (a)  The department shall administer this chapter.

(b)  The commissioner may issue rules the commissioner considers necessary to administer this chapter through the state fire marshal.  (V.T.I.C. Art. 5.43-1, Sec. 2 (part).)

Source Law

Sec. 2.  The State Board of Insurance shall administer this article and it may issue rules and regulations which it considers necessary to its administration through the State Fire Marshal… .

Revisor's Note

Section 2, V.T.I.C. Article 5.43-1, refers to "rules and regulations."  Throughout this chapter, the revised law omits the reference to "regulations" because under Section 311.005(5), Government Code (Code Construction Act), a rule is defined to include a regulation.  That definition applies to the revised law.

Revised Law

Sec. 1959.052.  ADOPTION OF RULES.  (a)  In adopting necessary rules, the commissioner may use recognized standards, including standards:

(1)  adopted by the National Fire Protection Association;

(2)  recognized by federal law or regulation;

(3)  published by any nationally recognized standards-making organization; or

(4)  contained in the manufacturer's installation manuals.

(b)  The commissioner shall adopt and administer rules determined essentially necessary for the protection and preservation of life and property regarding:

(1)  registration of firms engaged in the business of:

(A)  installing or servicing portable fire extinguishers or planning, certifying, installing, or servicing fixed fire extinguisher systems; or

(B)  hydrostatic testing of fire extinguisher cylinders;

(2)  the examination and licensing of individuals to:

(A)  install or service portable fire extinguishers; and

(B)  plan, certify, install, or service fixed fire extinguisher systems; and

(3)  requirements for:

(A)  installing or servicing portable fire extinguishers; and

(B)  planning, certifying, installing, or servicing fixed fire extinguisher systems.

(c)  The commissioner by rule shall prescribe requirements for applications and qualifications for licenses, permits, and certificates issued under this chapter.  (V.T.I.C. Art. 5.43-1, Secs. 2 (part), 7(a), 8 (part).)

Source Law

Sec. 2.  . . .  The board, in adopting necessary rules and regulations, may use recognized standards such as, but not limited to, those of the National Fire Protection Association, those recognized by federal law or regulation, and those published by any nationally recognized standards-making organization, or the manufacturer's installation manuals.

Sec. 7.  (a)  Applications and qualifications for licenses, permits, and certificates issued hereunder shall be made pursuant to regulations adopted by the State Board of Insurance.

Sec. 8.  The State Board of Insurance shall:

(a)  formulate and administer such rules as may be determined essentially necessary for the protection and preservation of life and property, in controlling:

(1)  the registration of firms engaging in the business of installing or servicing portable fire extinguishers or planning, certifying, installing, or servicing fixed fire extinguisher systems;

(2)  the registration of firms engaged in the business of hydrostatic testing of fire extinguisher cylinders;

(3)  the examination of persons applying for a license;

(4)  the licensing of persons to install or service portable fire extinguishers and to plan, certify, install, or service fixed fire extinguisher systems; and

(5)  the requirements for the installing or servicing of portable fire extinguishers and the planning, certifying, installing, or servicing of fixed fire extinguisher systems; … .

Revisor's Note

Section 2, V.T.I.C. Article 5.43-1, allows the commissioner to adopt rules based on standards that may include "but [are] not limited to" certain recognized standards.  The revised law omits "but not limited to" as unnecessary because Section 311.005(13), Government Code (Code Construction Act), and Section 312.011(19), Government Code, provide that "includes" and "including" are terms of enlargement and not of limitation and do not create a presumption that components not expressed are excluded.  Those definitions apply to the revised law.

Revised Law

Sec. 1959.053.  RULES RESTRICTING ADVERTISING OR COMPETITIVE BIDDING.  (a)  The commissioner may not adopt rules restricting advertising or competitive bidding by the holder of a license, permit, certificate, or approval issued under this chapter except to prohibit false, misleading, or deceptive practices.

(b)  In the commissioner's rules to prohibit false, misleading, or deceptive practices, the commissioner may not include a rule that:

(1)  restricts the use of any medium for advertising;

(2)  restricts the use of a license, permit, certificate, or approval holder's personal appearance or voice in an advertisement;

(3)  relates to the size or duration of an advertisement by the license, permit, certificate, or approval holder; or

(4)  restricts the license, permit, certificate, or approval holder's advertisement under a trade name.  (V.T.I.C. Art. 5.43-1, Sec. 8A.)

Source Law

Sec. 8A.  (a)  The commissioner may not adopt rules restricting competitive bidding or advertising by the holder of a license, permit, certificate, or approval issued under this article except to prohibit false, misleading, or deceptive practices.

(b)  In the commissioner's rules to prohibit false, misleading, or deceptive practices, the commissioner may not include a rule that:

(1)  restricts the use of any medium for advertising;

(2)  restricts the use of a license, permit, certificate, or approval holder's personal appearance or voice in an advertisement;

(3)  relates to the size or duration of an advertisement by the license, permit, certificate, or approval holder;  or

(4)  restricts the license, permit, certificate, or approval holder's advertisement under a trade name.

Revised Law

Sec. 1959.054.  GENERAL POWERS AND DUTIES OF DEPARTMENT.  (a)  The department shall evaluate the qualifications of a firm:

(1)  applying for a registration certificate to engage in the business of installing or servicing portable fire extinguishers or planning, certifying, installing, or servicing fixed fire extinguisher systems; or

(2)  seeking approval as a testing laboratory.

(b)  The department shall issue:

(1)  registration certificates for firms that qualify under commissioner rules to engage in the business of installing or servicing portable fire extinguishers or planning, certifying, installing, or servicing fixed fire extinguisher systems; and

(2)  licenses, apprentice permits, and authorizations to perform hydrostatic testing to firms or individuals that qualify.  (V.T.I.C. Art. 5.43-1, Sec. 8 (part).)

Source Law

Sec. 8.  The State Board of Insurance shall:

…

(b)  evaluate the qualifications of firms or individuals for a certificate of registration to engage in the business of installing or servicing portable fire extinguishers or planning, certifying, installing, or servicing fixed fire extinguisher systems;

…

(d)  issue certificates of registration for those firms that qualify under the rules to engage in the business of installing or servicing portable fire extinguishers or planning, certifying, installing, or servicing fixed fire extinguisher systems, and issue licenses, apprentice permits, and authorizations to perform hydrostatic testing to the firms or individuals who qualify;

(e)  evaluate the qualifications of firms seeking approval as testing laboratories; and … .

Revised Law

Sec. 1959.055.  FEES.  (a)  The commissioner shall set the fee for:

(1)  an initial firm registration certificate in an amount not to exceed $450;

(2)  the annual renewal of a firm registration certificate in an amount not to exceed $300;

(3)  an initial branch office registration certificate in an amount not to exceed $100;

(4)  the annual renewal of a branch office registration certificate in an amount not to exceed $100;

(5)  an initial registration certificate to perform hydrostatic testing in an amount not to exceed $250;

(6)  the annual renewal of a registration certificate to perform hydrostatic testing in an amount not to exceed $150;

(7)  an initial employee license fee in an amount not to exceed $70;

(8)  the annual renewal of an employee license in an amount not to exceed $50; and

(9)  an apprentice permit in an amount not to exceed $30.

(b)  Unless the examination or reexamination for an employee license is administered by a testing service, the commissioner shall set a nonrefundable fee for:

(1)  the initial examination in an amount not to exceed $30; and

(2)  each reexamination in an amount not to exceed $20.

(c)  The commissioner shall set a fee in an amount not to exceed $20 for:

(1)  a duplicate registration certificate, license, or apprentice permit issued under this chapter; or

(2)  any request requiring changes to a registration certificate, license, or permit.

(d)  On a change of ownership of a registered firm, the department shall issue a new registration certificate with a new number for a fee set by the commissioner in an amount not to exceed $450.  On a change of ownership of a branch office, the commissioner shall charge a fee in an amount not to exceed $100.   (V.T.I.C. Art.  5.43-1, Secs. 4(a) (part), (b), (c-1), (d) (part), (e) (part), (f).)

Source Law

(a)  …  The initial fee for the certificate of registration must be in an amount not to exceed $450 and the renewal fee for each year thereafter must be in an amount not to exceed $300… .  The initial fee for a branch office registration certificate must be in an amount not to exceed $100, and the renewal fee for each year thereafter must be in an amount not to exceed $100… .

(b)  A fee in an amount not to exceed $20 shall be charged for a duplicate certificate of registration, license, or apprentice permit issued under this article or for any request requiring changes to a certificate of registration, license, or permit.  A new certificate of registration with a new number shall be issued to a registered firm on a change of ownership for a fee in an amount not to exceed $450.  A fee in an amount not to exceed $100 shall be charged for a change of ownership of a branch office.

(c-1)  The initial fee for the license required by Subsection (c) of this section must be in an amount not to exceed $70 and the license renewal fee for each year thereafter must be in an amount not to exceed $50. Unless the examination is administered by a testing service, a nonrefundable fee for the initial examination must be in an amount not to exceed $30.  Unless the reexamination is administered by a testing service, a nonrefundable fee in an amount not to exceed $20 shall be charged for each reexamination.

(d)  …  The fee for the apprentice permit must be in an amount not to exceed $30… .

(e)  …  [shall be required to have a hydrostatic testing certificate of registration authorizing such testing issued by the state fire marshal.]  …  The initial fee must be in an amount not to exceed $250, and the renewal fee for each year thereafter must be in an amount not to exceed $150… .

(f)  The State Board of Insurance shall, within the limits fixed by this section, prescribe the fees to be charged under this section.

Revised Law

Sec. 1959.056.  DEPOSIT IN OPERATING ACCOUNT.  All money collected under this chapter, other than penalties and monetary forfeitures, shall be paid to the department and deposited in the state treasury to the credit of the Texas Department of  Insurance operating account for use in administering this chapter.  (V.T.I.C. Art. 5.43-1, Sec. 11.)

Source Law

Sec. 11.  All funds collected through the licensing and other provisions of this article, excepting penalties and monetary forfeitures, shall be paid to the State Board of Insurance and be deposited in the State Treasury to the credit of the State Board of Insurance operating fund for use in carrying out the administration of this article.

Revisor's Note

Section 11, V.T.I.C. Article 5.43-1, requires certain money  to be deposited "in the State Treasury to the credit of the State Board of Insurance operating fund."  Under Chapter 4, Acts of the 72nd Legislature, 1st Called Session, 1991, the Texas Department of Insurance operating fund (the later name of the State Board of Insurance operating fund) was converted to an account in the general revenue fund.  The revised law is drafted accordingly.

[Sections 1959.057-1959.100 reserved for expansion]

SUBCHAPTER C.  FIRE EXTINGUISHER ADVISORY COUNCIL

Revised Law

Sec. 1959.101.  ADVISORY COUNCIL; APPOINTMENT.  (a)  The commissioner may delegate the exercise of all or part of the commissioner's functions, powers, and duties under this chapter, other than the issuance of licenses, certificates, and permits, to a fire extinguisher advisory council.

(b)  The commissioner shall appoint the members of the advisory council.  The members of the council must be:

(1)  experienced and knowledgeable in one or more of the following:

(A)  fire services;

(B)  fire extinguisher manufacturing;

(C)  fire insurance inspection or underwriting; or

(D)  fire extinguisher servicing; or

(2)  members of a fire protection association or industrial safety association.  (V.T.I.C. Art. 5.43-1, Secs. 9(a) (part), (b).)

Source Law

Sec. 9.  (a)  The commissioner may delegate the exercise of all or part of the commissioner's functions, powers, and duties under this article, except for the issuance of licenses, certificates, and permits, to a Fire Extinguisher Advisory Council whose members shall be appointed by the commissioner… .

(b)  The members of the council shall be experienced and knowledgeable in one or more of the following areas: fire services, fire extinguisher manufacturing, fire insurance inspection or underwriting, fire extinguisher servicing, or be a member of a fire protection association or industrial safety association.

Revised Law

Sec. 1959.102.  ADVISORY COUNCIL DUTIES.  (a)  The fire extinguisher advisory  council shall assist in the formulation and review of rules adopted under this chapter.

(b)  The advisory council shall periodically:

(1)  review rules implementing this chapter; and

(2)  recommend rule changes to the commissioner.  (V.T.I.C. Art. 5.43-1, Sec. 9(a) (part).)

Source Law

(a)  …  The council shall assist in the review and formulation of rules adopted under this article and shall periodically review rules implementing this article and recommend changes in the rules to the commissioner.

[Sections 1959.103-1959.150 reserved for expansion]

SUBCHAPTER D.  REGISTRATION, LICENSE, AND PERMIT REQUIREMENTS

Revised Law

Sec. 1959.151.  FIRM REGISTRATION CERTIFICATE REQUIRED.  Unless the firm holds a registration certificate issued by the department, a firm may not engage in the business of:

(1)  installing or servicing portable fire extinguishers; or

(2)  planning, certifying, installing, or servicing fixed fire extinguisher systems.  (V.T.I.C. Art.  5.43-1, Sec. 4(a) (part).)

Source Law

Sec. 4.  (a)  Each firm engaged in the business of installing or servicing portable fire extinguishers or planning, certifying, installing, or servicing fixed fire extinguisher systems must have a certificate of registration issued by the State Board of Insurance… .

Revised Law

Sec. 1959.152.  BRANCH OFFICE REGISTRATION CERTIFICATE REQUIRED.  (a)  Each separate office location of a firm holding a registration certificate, other than the location identified on the firm's certificate, must have a branch office registration certificate issued by the department.

(b)  Before issuing a branch office registration certificate, the department must determine that the branch office location is part of a registered firm.  (V.T.I.C. Art.  5.43-1, Sec. 4(a) (part).)

Source Law

(a)  …  Each separate office location of a firm engaged in the business of installing or servicing portable fire extinguishers or planning, certifying, installing, or servicing fixed extinguisher systems, other than the location identified on the certificate of registration, must have a branch office registration certificate issued by the board… .  The board shall identify each branch office location as a part of a registered firm before a branch office registration certificate may be issued.

Revised Law

Sec. 1959.153.  HYDROSTATIC TESTING; REGISTRATION CERTIFICATE REQUIRED.  (a)  A firm may not perform hydrostatic testing of fire extinguishers manufactured in accordance with the specifications and procedures of the United States Department of Transportation unless the firm:

(1)  complies with the procedures specified by that department for compressed gas cylinders; and

(2)  holds a registration certificate issued by the state fire marshal authorizing hydrostatic testing.

(b)  The license of an individual qualified to do work described by Subsection (a) must indicate the authority of the individual to perform that work.

(c)  Hydrostatic testing of fire extinguishers that is not performed under the specifications of the United States Department of Transportation must be performed in the manner recommended by the National Fire Protection Association.  (V.T.I.C. Art. 5.43-1, Sec. 4(e) (part).)

Source Law

(e)  Each firm performing hydrostatic testing of fire extinguishers manufactured in accordance with the specifications and procedures of the United States Department of Transportation shall do so in accordance with the procedures specified by that department for compressed gas cylinders and shall be required to have a hydrostatic testing certificate of registration authorizing such testing issued by the state fire marshal.  Persons qualified to do this work shall be given such authority on their licenses… .  Hydrostatic testing of fire extinguishers not performed pursuant to the United States Department of Transportation specifications shall be performed as recommended by the National Fire Protection Association.

Revised Law

Sec. 1959.154.  REQUIRED INSURANCE COVERAGE FOR REGISTRATION CERTIFICATE.  (a)  The department may not issue a registration certificate under this chapter unless the applicant files with the department evidence of a general liability insurance policy that includes products and completed operations coverage.  The policy must be conditioned to pay on behalf of the insured those amounts that the insured becomes legally obligated to pay as damages because of bodily injury and property damage caused by an occurrence involving the insured or the insured's officer, agent, or employee in the conduct of any activity that requires a registration certificate or license under this chapter.

(b)  Unless the commissioner, after notice and an opportunity for a hearing, increases or decreases the limits, the limits of insurance coverage required by Subsection (a) must be at least:

(1)  $100,000 combined single limits for bodily injury and property damage for each occurrence; and

(2)  $300,000 aggregate for all occurrences for each policy year.

(c)  The evidence of insurance required by this section must be in the form of a certificate of insurance executed by an insurer authorized to engage in the business of insurance in this state and countersigned by an insurance agent licensed in this state.  A certificate of insurance for surplus lines coverage procured in compliance with Chapter 981, Insurance Code, through a surplus lines agent that is licensed under Subchapter E, Chapter 981, Insurance Code, and resident in this state may be filed with the department as evidence of the coverage required by this section.

(d)  An insurance certificate executed and filed with the department under this section remains in force until the insurer has terminated future liability by the notice required by the department.

(e)  Failure to maintain the liability insurance required by this section constitutes grounds for the denial, suspension, or revocation, after notice and opportunity for hearing, of a registration certificate issued under this chapter.  (V.T.I.C. Art. 5.43-1, Secs. 4A, 8 (part).)

Source Law

Sec. 4A.  (a)  The board shall not issue a certificate of registration under this article unless the applicant files with the board evidence of a general liability insurance policy that includes products and completed operations coverage.  The policy must be conditioned to pay on behalf of the insured those sums that the insured becomes legally obligated to pay as damages because of bodily injury and property damage caused by an occurrence involving the insured or the insured's servant, officer, agent, or employee in the conduct of any business registered or licensed under this article.

(b)  The limits of insurance coverage required by Subsection (a) of this section shall not be less than $100,000 combined single limits for bodily injury and property damage for each occurrence and not less than $300,000 aggregate for all occurrences per policy year, unless the board increases or decreases the limits under Section 8 of this article.

(c)  The evidence of insurance required by this section must be in the form of a certificate of insurance executed by an insurer authorized to do business in this state and countersigned by an insurance agent licensed in this state.  A certificate of insurance for surplus lines coverage procured in compliance with Article 1.14-2 of this code through a licensed Texas surplus lines agent resident in this state may be filed with the board as evidence of coverage required by this section.  Insurance certificates executed and filed with the board under this section remain in force until the insurer has terminated future liability by the notice required by the board.

(d)  Failure to maintain the liability insurance required under this section constitutes grounds for the denial, suspension, or revocation of a certificate of registration issued under this article after notice and opportunity for hearing.

Sec. 8.  The State Board of Insurance shall:

…

(f)  have authority, after notice and opportunity for hearing, to increase or decrease the limits of insurance coverage.

Revisor's Note

(1)  Section 4A(a), V.T.I.C. Article 5.43-1, refers to "the insured's servant, officer, agent, or employee."  The revised law omits the reference to "servant" because that term is included within the meaning of "employee" or "agent."

(2)  Section 4A(c), V.T.I.C. Article 5.43-1, refers to a "certificate of insurance for surplus lines coverage procured in compliance with Article 1.14-2 of this code through a licensed Texas surplus lines agent resident in this state."  V.T.I.C. Article 1.14-2 was revised as Chapter 981, Insurance Code.  The provisions of that article relating to the licensing of surplus lines insurance agents were revised as Subchapter E of that chapter.  The revised law is drafted accordingly.

Revised Law

Sec. 1959.155.  EMPLOYEE LICENSE REQUIRED.  (a)  Except as provided by Section 1959.156, an individual, other than an apprentice, must hold a license issued by the department before:

(1)  installing or servicing portable fire extinguishers;

(2)  installing or maintaining fixed fire extinguisher systems;

(3)  servicing or certifying preengineered fixed fire extinguisher systems; or

(4)  planning, supervising, or certifying the installation of fixed fire extinguisher systems other than preengineered systems or servicing those systems.

(b)  An individual who holds a license to install or service portable fire extinguishers or install and service fixed fire extinguisher systems must be an employee or agent of a registered firm.  (V.T.I.C. Art. 5.43-1, Secs. 4(c), 5(b) (part), (c).)

Source Law

[Sec. 4]

(c)  Each employee, other than an apprentice, of registered firms engaged in the business of installing or servicing portable fire extinguishers or planning, installing, or servicing fixed fire extinguisher systems, must have a license issued by the State Board of Insurance before engaging in the following:

(1)  installing or servicing portable fire extinguishers;

(2)  installing, servicing, or certifying preengineered fixed fire extinguisher systems; or

(3)  planning, supervising, or certifying the installation of fixed fire extinguisher systems other than preengineered systems or the servicing of such systems.

[Sec. 5]

(b)  Except as provided in Section 6 of this article, only the holder of a valid license or [an apprentice permit] issued pursuant to this article may install or service portable fire extinguishers or install and maintain fixed fire extinguisher systems.

(c)  A person who has been issued a license pursuant to this article to install or service portable fire extinguishers or install and service fixed fire extinguisher systems must be an employee, agent, or servant of a firm that holds a certificate of registration issued pursuant to this article.

Revisor's Note

(1)  Section 5(b), V.T.I.C. Article 5.43-1, refers to the holder of a "valid license."  The revised law omits "valid" as unnecessary because the word does not add to the clear meaning of the law.  For example, a document purporting to be a license is no longer a license if it is expired and is not a license if it is a forgery.

(2)  Section 5(c), V.T.I.C. Article 5.43-1, refers to "an employee, agent, or servant of a firm."  The revised law omits the reference to "servant" for the reasons stated in  Revisor's Note (1) to Section 1959.154.

Revised Law

Sec. 1959.156.  ACTIVITIES NOT REGULATED BY CHAPTER.  The licensing provisions of this chapter do not apply to:

(1)  the filling or charging of a portable fire extinguisher by the manufacturer before initial sale of the fire extinguisher;

(2)  the servicing by a firm of the firm's portable fire extinguishers or fixed systems by the firm's personnel who are specially trained for that servicing;

(3)  the installation of portable fire extinguishers in a building by the building owner, the owner's managing agent, or an employee of the building owner or the owner's managing agent;

(4)  the installation or servicing of water sprinkler systems installed in compliance with the National Fire Protection Association's Standards for the Installation of Sprinkler Systems;

(5)  a firm that is engaged in the retail or wholesale sale of portable fire extinguishers that carry an approval label or listing of a testing laboratory approved by the department, but that is not engaged in the installation or servicing of those extinguishers;

(6)  a fire department that services portable fire extinguishers as a public service without charge, if the members of the fire department are trained in the proper servicing of the fire extinguishers;

(7)  a firm that is a party to a contract under which:

(A)  the installation of portable fire extinguishers or a fixed fire extinguisher system is performed under the direct supervision of and certified by a firm appropriately registered to install and certify portable extinguishers or fixed systems; and

(B)  the registered firm assumes full responsibility for the installation; or

(8)  an engineer licensed under Chapter 1001 while acting solely in the engineer's professional capacity.  (V.T.I.C. Art. 5.43-1, Sec. 6.)

Source Law

Sec. 6.  The licensing provisions of this article do not apply to the following:

(a)  the filling or charging of a portable fire extinguisher by the manufacturer prior to its initial sale;

(b)  the servicing by a firm of its own portable fire extinguishers and/or fixed systems by its own personnel specially trained for such servicing or the installation of portable fire extinguishers in a building by the building owner, the owner's managing agent, or their employees;

(c)  the installation or servicing of water sprinkler systems installed in compliance with the National Fire Protection Association's Standards for the Installation of Sprinkler Systems;

(d)  firms engaged in the retailing or wholesaling of portable fire extinguishers that carry a label of approval or listing of a testing laboratory approved by the State Board of Insurance, but not engaged in the installation or servicing of them;

(e)  fire departments servicing portable fire extinguishers as a public service where no charge is made, provided, however, that the members of the fire department are trained in the proper servicing of the fire extinguishers;

(f)  a firm that is party to a contract which provides that the installation of portable fire extinguishers or a fixed fire extinguisher system will be performed under the direct supervision of and certified by a firm appropriately registered to install and certify portable extinguishers or fixed systems and that the registered firm assumes full responsibility for the installation;  or

(g)  a Texas registered professional engineer acting solely in his professional capacity.

Revisor's Note

Section 6(g), V.T.I.C. Article 5.41-1, refers to a "Texas registered professional engineer."  The revised law omits the reference to "Texas registered professional engineer" because that is an obsolete term for a professional engineer in this state, and the revised law substitutes a reference to an "engineer licensed under Chapter 1001," Occupations Code, because under Subchapter G, Chapter 1001, Occupations Code, a professional engineer in this state is required to hold a license under that chapter.

Revised Law

Sec. 1959.157.  LICENSE EXAMINATION.  (a)  The state fire marshal shall:

(1)  establish the scope and type of an examination required by this chapter; and

(2)  examine each applicant for a license under this chapter.

(b)  The state fire marshal may administer the examination or may enter into an agreement with a testing service.

(c)  If a testing service is used, the state fire marshal may contract with the testing service regarding requirements for the examination, including:

(1)  examination development;

(2)  scheduling;

(3)  site arrangements;

(4)  grading;

(5)  reporting;

(6)  analysis; or

(7)  other administrative duties.

(d)  The state fire marshal may require the testing service to:

(1)  correspond directly with a license applicant regarding the administration of the examination;

(2)  collect a reasonable fee from an applicant for administering the examination; or

(3)  administer the examination at a specific location or time.

(e)  The state fire marshal shall adopt rules as necessary to implement examination requirements under this chapter.  (V.T.I.C. Art. 5.43-1, Secs. 7(e), (f), (j), 8 (part).)

Source Law

[Sec. 7]

(e)  The state fire marshal shall examine each applicant for a license issued under this article and shall establish the scope and type of an examination required by this article.  The state fire marshal may administer the examination or may enter into an agreement with a testing service.

(f)  The state fire marshal may contract with the testing service regarding requirements for the examination, including examination development, scheduling, site arrangements, grading, reporting, analysis, or other administrative duties.  The state fire marshal may require the testing service to:

(1)  correspond directly with an applicant regarding the administration of the examination;

(2)  collect a reasonable fee from an applicant for administering the examination; or

(3)  administer the examination at a specific location or time.

(j)  The state fire marshal shall adopt rules as necessary to implement examination requirements under this article.

Sec. 8.  The State Board of Insurance shall:

…

(c)  conduct examinations to ascertain the qualifications and fitness of applicants for a license to install or service portable fire extinguishers or to plan, certify, install, or service fixed fire extinguisher systems; … .

Revised Law

Sec. 1959.158.  EXAMINATION RESULTS.  (a)  Not later than the 30th day after the date on which a licensing examination is administered under this chapter, the state fire marshal shall send notice to each examinee of the results of the examination.

(b)  If an examination is conducted, graded, or reviewed by a testing service, the state fire marshal shall send notice to the examinees of the results of the examination not later than the 14th day after the date on which the state fire marshal receives the results from the testing service.

(c)  If the notice of the examination results will be delayed for more than 90 days after the examination date, the state fire marshal, before the 90th day, shall send notice to the examinee of the reason for the delay.

(d)  The state fire marshal may require a testing service to notify an examinee of the results of the examinee's examination under Subsections (a) and (b).

(e)  If requested in writing by an individual who fails the licensing examination administered under this chapter, the state fire marshal shall send to the individual an analysis of the individual's performance on the examination.  (V.T.I.C. Art. 5.43-1, Secs. 7(g), (g-1).)

Source Law

(g)  Not later than the 30th day after the day on which a licensing examination is administered under this article, the State Fire Marshal shall send notice to each examinee of the results of the examination.  If an examination is conducted, graded, or reviewed by a testing service, the State Fire Marshal shall send notice to the examinees of the results of the examination within two weeks after the date on which the State Fire Marshal receives the results from the testing service.  If the notice of the examination results will be delayed for longer than 90 days after the examination date, the State Fire Marshal shall send notice to the examinee of the reason for the delay before the 90th day.  If requested in writing by a person who fails the licensing examination administered under this article, the State Fire Marshal shall send to the person an analysis of the person's performance on the examination.

(g-1)  The state fire marshal may require a testing service to notify a person of the results of the person's examination under Subsection (g).

Revised Law

Sec. 1959.159.  CONTINUING EDUCATION REQUIREMENTS.  (a)  The commissioner may adopt procedures for certifying and may certify continuing education programs for individuals licensed under this chapter.

(b)  Participation in the continuing education programs is voluntary.  (V.T.I.C. Art.  5.43-1, Sec. 7(h).)

Source Law

(h)  The State Board of Insurance may adopt procedures for certifying and may certify continuing education programs for persons licensed under this Act.  Participation in the programs is voluntary.

Revised Law

Sec. 1959.160.  RECIPROCAL LICENSE. The department may waive any license requirement for an applicant who holds a license issued by another state that has license requirements substantially equivalent to the license requirements of this state.  (V.T.I.C. Art. 5.43-1, Sec. 7(i).)

Source Law

(i)  The State Board of Insurance may waive any license requirement for an applicant with a valid license from another state having license requirements substantially equivalent to those of this state.

Revisor's Note

Section 7(i), V.T.I.C. Article 5.43-1, refers to "a valid license."  The revised law omits "valid" for the reasons stated in Revisor's Note (1) to Section 1959.155.

Revised Law

Sec. 1959.161.  APPRENTICE PERMIT REQUIRED.  (a)  An individual may not install or service portable fire extinguishers or fixed fire extinguisher systems as an apprentice unless the individual holds an apprentice permit issued by the department.

(b)  An apprentice may perform a service described by Subsection (a) only under the direct supervision of an individual who holds a license issued under Section 1959.154 and who works for the same firm as the apprentice.  (V.T.I.C. Art. 5.43-1, Secs. 4(d) (part), 5(b) (part).)

Source Law

[Sec. 4]

(d)  Each person installing or servicing portable fire extinguishers or installing or servicing fixed fire extinguisher systems as an apprentice shall, before engaging in installing or servicing, apply to the State Board of Insurance for an apprentice permit. …  An apprentice may perform the services only under direct supervision of a person holding a valid license under this article who works for the same firm as the apprentice. …

[Sec. 5]

(b)  … only the holder of a valid [license or] an apprentice permit issued pursuant to this article may install or service portable fire extinguishers or install and maintain fixed fire extinguisher systems.

Revisor's Note

Section 5(b), V.T.I.C. Article 5.43-1, refers to "a valid … apprentice permit."  The revised law omits "valid" for the reasons stated in Revisor's Note (1) to Section 1959.155.

Revised Law

Sec. 1959.162.  NOT TRANSFERABLE.  A registration certificate, license, or permit issued under this chapter is not transferable.  (V.T.I.C. Art. 5.43-1, Sec. 5(d).)

Source Law

(d)  A certificate of registration, license, or permit issued under this article is not transferable.

[Sections 1959.163-1959.200 reserved for expansion]

SUBCHAPTER E.  RENEWAL OF REGISTRATION, LICENSE, OR PERMIT

Revised Law

Sec. 1959.201.  RENEWAL REQUIRED; FEE.  (a)  A renewal of a registration certificate or license issued under this chapter expires on the second anniversary of the date of issuance.  The license or registration fee for each year of the two-year period is payable on renewal.

(b)  An apprentice permit expires on the first anniversary of the date of issuance.

(c)  The commissioner by rule may adopt a system under which registration certificates, licenses, and permits expire on various dates during the year.  For the year in which an expiration date of a registration certificate, license, or permit is less than one year from its issuance or anniversary date, the fee shall be prorated on a monthly basis so that each holder of a registration certificate, license, or permit pays only that portion of the renewal fee that is allocable to the number of months during which the registration certificate, license, or permit is valid.  On renewal on the new expiration date, the total renewal fee is payable.  (V.T.I.C. Art. 5.43-1, Secs. 4(d) (part), 7A(a), (c).)

Source Law

[Sec. 4]

(d)  … An apprentice permit is valid for one year from the date of issuance.

Sec. 7A.  (a)  Each renewal of a license or certificate of registration issued under this article is valid for a period of two years.  The license or registration fee for each year of the two-year period is payable on renewal.

(c)  The State Board of Insurance by rule may adopt a system under which certificates of registration, licenses, and permits expire on various dates during the year.  For the year in which the certificate of registration, license, or permit expiration date is less than one year from its issuance or anniversary date, the fee shall be prorated on a monthly basis so that each registrant, licensee, or permittee shall pay only that portion of the fee that is allocable to the number of months during which the certificate of registration, license, or permit is valid.  On each subsequent renewal of a license or registration, the total renewal fee is payable.

Revised Law

Sec. 1959.202.  NOTICE OF EXPIRATION.  At least 30 days before the expiration date of a registration certificate or license, the state fire marshal shall send written notice of the impending expiration to the holder of the  registration certificate or license at the holder's last known address.  (V.T.I.C. Art. 5.43-1, Sec. 7A(b) (part).)

Source Law

(b)  …  At least 30 days before the date of the expiration of a license or registration, the State Fire Marshal shall send written notice of the impending license or registration expiration to the licensee or registrant at his or its last known address… .

Revised Law

Sec. 1959.203.  RENEWAL PROCEDURES.  (a)  The holder of an unexpired registration certificate or license may renew the certificate or license by paying the required renewal fee to the department before the expiration date of the certificate or license.

(b)  A firm or individual whose registration certificate or license has been expired for 90 days or less may renew the certificate or license by paying to the department:

(1)  the required renewal fee; and

(2)  a fee equal to one-half of the original fee for the certificate or license.

(c)  A firm or individual whose registration certificate or license has been expired for more than 90 days but less than two years may renew the certificate or license by paying to the department:

(1)  all unpaid renewal fees; and

(2)  a fee that is equal to the original fee for the certificate or license.

(d)  A firm or individual whose registration certificate or license has been expired for two years or longer may not renew the certificate or license.  The firm or individual may obtain a new registration certificate or license by complying with the requirements and procedures for obtaining an original registration certificate or license.

(e)  This section may not be construed to prevent the department from denying or refusing to renew a license under applicable law or commissioner rules.  (V.T.I.C. Art. 5.43-1, Sec. 7A(b) (part).)

Source Law

(b)  An unexpired license or registration may be renewed by paying the required renewal fee to the State Board of Insurance before the expiration of the license or registration.  If a license or registration has been expired for not longer than 90 days, the license or registration may be renewed by paying to the State Board of Insurance the required renewal fee and a fee that is equal to one-half of the original fee for the license or registration.  If a license or registration has been expired for longer than 90 days but less than two years, the license or registration may be renewed by paying to the State Board of Insurance all unpaid renewal fees and a fee that is equal to the original fee for the license or registration.  If a license or registration has been expired for two years or longer, the license or registration may not be renewed.  A new license or certificate of registration may be obtained by complying with the requirements and procedures for obtaining an original license or registration… .  This subsection may not be construed to prevent the State Board of Insurance from denying or refusing to renew a license under applicable law or rules of the board.

[Sections 1959.204-1959.250 reserved for expansion]

SUBCHAPTER F.  PROHIBITED PRACTICES

AND DISCIPLINARY PROCEDURES

Revised Law

Sec. 1959.251.  PROHIBITED PRACTICES.  (a)  An individual or firm may not:

(1)  engage in the business of installing or servicing portable fire extinguishers without holding a registration certificate;

(2)  engage in the business of planning, certifying, installing, or servicing fixed fire extinguisher systems without holding a registration certificate;

(3)  install, service, or certify the servicing of portable fire extinguishers or plan, certify, service, or install fixed fire extinguisher systems without holding a license;

(4)  perform hydrostatic testing of fire extinguisher cylinders manufactured in accordance with the specifications and requirements of the United States Department of Transportation without holding a hydrostatic testing registration certificate;

(5)  obtain or attempt to obtain a registration certificate or license by fraudulent representation;

(6)  install or service portable fire extinguishers or plan, certify, service, or install fixed fire extinguisher systems in violation of this chapter or the rules adopted and administered under this chapter;

(7)  except as provided by Subsection (b), install, service, or hydrostatically test a fire extinguisher that does not have the proper identifying labels;

(8)  sell, install, service, or recharge a carbon tetrachloride fire extinguisher; or

(9)  lease, sell, service, or install a portable fire extinguisher, a fixed fire extinguisher system, or extinguisher equipment unless it carries an approval label or listing label issued by a testing laboratory approved by the department.

(b)  The commissioner by rule shall permit an individual or firm to service a portable fire extinguisher regardless of whether the extinguisher carries a label described by Subsection (a).  (V.T.I.C. Art. 5.43-1, Secs. 5(a), (e), 10.)

Source Law

Sec. 5.  (a)  Except as provided by Subsection (e) of this section, no portable fire extinguisher, fixed fire extinguisher system, or extinguisher equipment may be leased, sold, rented, serviced, or installed in this state unless it carries a label of approval or listing of a testing laboratory approved by the department.

(e)  The commissioner by rule shall permit a person to service a portable fire extinguisher regardless of whether it carries a label described by Subsection (a) of this section.

Sec. 10.  No person or firm may do any of the following:

(1)  engage in the business of installing or servicing portable fire extinguishers without a valid certificate of registration;

(2)  engage in the business of planning, certifying, installing, or servicing fixed fire extinguisher systems without a valid certificate of registration;

(3)  install or service or certify the servicing of portable fire extinguishers or plan, certify, service, or install fixed fire extinguisher systems without a valid license;

(4)  perform hydrostatic testing of fire extinguisher cylinders manufactured in accordance with the specifications and requirements of the United States Department of Transportation without a valid hydrostatic testing certificate of registration;

(5)  obtain or attempt to obtain a certificate of registration or license by fraudulent representation;

(6)  install or service portable fire extinguishers or plan, certify, service, or install fixed fire extinguisher systems contrary to the provisions of this article or the rules formulated and administered under the authority of this article;

(7)  install, service, or hydrostatic test a fire extinguisher that does not have the proper identifying labels, except as provided by Subsection (e) of Section 5 of this article;

(8)  sell, install, service, or recharge a carbon tetrachloride fire extinguisher; or

(9)  violate Subsection (a) of Section 5 of this article.

Revisor's Note

Section 10, V.T.I.C. Article 5.43-1, refers to "a valid license" and "a valid certificate of registration."  The revised law omits "valid" for the reasons stated in Revisor's Note (1) to Section 1959.155.

Revised Law

Sec. 1959.252.  DISCIPLINARY ACTIONS.  (a)  The state fire marshal may suspend, revoke, or refuse to issue or renew a registration certificate, license, or permit if, after notice and hearing, the state fire marshal finds that the applicant, registrant, license holder, or permit holder has engaged in acts that:

(1)  violate this chapter;

(2)  violate rules or standards adopted under this chapter; or

(3)  constitute misrepresentation made in connection with the sale of products or of services rendered.

(b)  Subject to Section 1959.253, the commissioner may suspend, revoke, or refuse to issue or renew a certificate, license, permit, or approval.  (V.T.I.C. Art. 5.43-1, Secs. 7(b), 12(a).)

Source Law

[Sec. 7]

(b)  The commissioner, through the State Fire Marshal, may suspend, revoke, or refuse to issue or renew a license, apprentice permit, hydrostatic testing certificate, certificate of registration, or approval of a testing laboratory in accordance with Section 13 of this article.

Sec. 12.  (a)  The State Fire Marshal may refuse the issuance or renewal of, suspend, or revoke a certificate of registration, license, or permit if, after notice and hearing, he finds that the applicant, registrant, licensee, or permit holder has engaged in acts:

(1)  that violate this article;

(2)  that violate rules or standards adopted pursuant to this article; or

(3)  constituting misrepresentation made in connection with the sale of products or services rendered.

Revised Law

Sec. 1959.253.  DISCIPLINARY HEARING.  (a)  If the state fire marshal proposes to suspend, revoke, or refuse to renew a license, permit, certificate, or approval issued under this chapter, the holder of the license, permit, certificate, or approval is entitled to a hearing conducted by the State Office of Administrative Hearings.

(b)  Proceedings for a disciplinary action are governed by Chapter 2001, Government Code.

(c)  Rules of practice adopted by the commissioner applicable to the proceedings for a disciplinary action may not conflict with rules adopted by the State Office of Administrative Hearings. (V.T.I.C. Art. 5.43-1, Sec. 13.)

Source Law

Sec. 13.  If the State Fire Marshal proposes to suspend, revoke, or refuse to renew a license, permit, certificate, or approval issued under this article, the holder of the license, permit, certificate, or approval is entitled to a hearing conducted by the State Office of Administrative Hearings.  Proceedings for a disciplinary action are governed by the administrative procedure law, Chapter 2001, Government Code.  Rules of practice adopted by the commissioner applicable to the proceedings for a disciplinary action may not conflict with rules adopted by the State Office of Administrative Hearings.

Revised Law

Sec. 1959.254.  REAPPLICATION REQUIREMENTS.  (a)  An applicant or holder of a registration certificate, license, or permit whose certificate, license, or permit has been refused or revoked under this chapter, other than for failure to pass a required written examination, may not file another application for a registration certificate, license, or permit before the first anniversary of the effective date of the refusal or revocation.

(b)  After the first anniversary of the effective date of the refusal or revocation, the applicant may:

(1)  reapply; and

(2)  in a public hearing, show good cause why the issuance of the registration certificate, license, or permit is not against the public safety and welfare.  (V.T.I.C. Art. 5.43-1, Sec. 7(c).)

Source Law

(c)  An applicant, registrant, licensee, or permit holder whose certificate of registration, license, or permit has been refused or revoked under this article, except for failure to pass a required written examination, may not file another application for a certificate of registration, license, or permit within one year from the effective date of the refusal or revocation.  After one year from that date, the applicant may reapply and in a public hearing show good cause why the issuance of his certificate of registration, license, or permit is not against the public safety and welfare.

Revised Law

Sec. 1959.255.  REEXAMINATION AFTER REVOCATION.  An individual whose license to service portable fire extinguishers or to install or service fixed fire extinguisher systems has been revoked must retake and pass the required written examination before a new license may be issued.  (V.T.I.C. Art. 5.43-1, Sec. 7(d).)

Source Law

(d)  A person whose license to service portable fire extinguishers or to install or service fixed fire extinguisher systems has been revoked must retake and pass the required written examination before a new license may be issued.

[Sections 1959.256-1959.300 reserved for expansion]

SUBCHAPTER G. CRIMINAL PENALTY

Revised Law

Sec. 1959.301.  CRIMINAL PENALTY.  (a)  Section 311.005(2), Government Code, does not apply to this section.

(b)  A person commits an offense if the person knowingly violates Section 1959.251(a).

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

(d)  Venue for an offense under this section is in Travis County or the county in which the offense is committed.  (V.T.I.C. Art. 5.43-1, Secs. 12(b), (c); New.)

Source Law

(b)  A person commits an offense if the person knowingly or intentionally violates Section 10 of this article.

(c)  An offense under Subsection (b) of this section is a Class B misdemeanor.  Venue for the offense is in Travis County or the county in which the offense is committed.

Revisor's Note

(1)  Section 12(b), V.T.I.C. Article 5.43-1, states that a "person" commits an offense if the person engages in certain behavior.  While the revised law substitutes "individual" for "person" in several instances throughout this chapter for the reasons stated in Revisor's Note (2) to Section 1959.002, it is not clear whether the legislature intended criminal liability to be extended to an entity as described by Subchapter B, Chapter 7, Penal Code, particularly since the Code Construction Act definition of "person," Section 311.005(2), Government Code, does not apply to the law revised in this chapter.  For that reason, the revised law retains the term "person" in this section and adds a provision stating that the Code Construction Act definition of "person" does not apply to this section.

(2)  Section 12(b), V.T.I.C. Article 5.43-1, refers to a person who "knowingly or intentionally" engages in certain conduct.  Under Section 6.02, Penal Code, applicable to the revised law through Section 1.03, Penal Code, culpable mental states are classified according to relative degree of culpability from highest to lowest, and proof of a higher degree of culpability than that charged constitutes proof of the culpability charged.  Because an intentional mental state is classified as a more culpable mental state than a knowing mental state, the revised law omits "intentionally" as unnecessary.