TITLE 22. EXAMINING BOARDS

PART 22. TEXAS STATE BOARD OF PUBLIC ACCOUNTANCY

CHAPTER 523. CONTINUING PROFESSIONAL EDUCATION

SUBCHAPTER C. ETHICS RULES: INDIVIDUALS AND SPONSORS

22 TAC §523.132

The Texas State Board of Public Accountancy (Board) proposes an amendment to §523.132, concerning Board Contracted Ethics Instructors.

Background, Justification and Summary

The amendment establishes the relationship between the Board and CPE sponsors as an authorization and not contractual. The CPE sponsors are authorized by the Board to offer continuing professional education.

Fiscal Note

William Treacy, Executive Director of the Board, has determined that for the first five-year period the proposed amendment is in effect, there will be no additional estimated cost to the state, no estimated reduction in costs to the state and to local governments, and no estimated loss or increase in revenue to the state, as a result of enforcing or administering the amendment.

Public Benefit

The adoption of the proposed amendment clarifies that CPE sponsors are authorized by the Board to offer continuing professional education.

Probable Economic Cost and Local Employment Impact

Mr. Treacy, Executive Director, has determined that there will be no probable economic cost to persons required to comply with the amendment and a Local Employment Impact Statement is not required because the proposed amendment will not affect a local economy.

Small Business, Rural Community and Micro-Business Impact Analysis

William Treacy, Executive Director, has determined that the proposed amendment will not have an adverse economic effect on small businesses, rural communities or micro-businesses because the amendment does not impose any duties or obligations upon small businesses, rural communities or micro-businesses; therefore, an Economic Impact Statement and a Regulatory Flexibility Analysis are not required.

Government Growth Impact Statement

William Treacy, Executive Director, has determined that for the first five-year period the amendment is in effect, the proposed rule: does not create or eliminate a government program; does not create or eliminate employee positions; does not increase or decrease future legislative appropriations to the Board; does not increase or decrease fees paid to the Board; does not create a new regulation; limits the existing regulation; does not increase or decrease the number of individuals subject to the proposed rule's applicability; and does not positively or adversely affect the state's economy.

Takings Impact Assessment

No takings impact assessment is necessary because there is no proposed use of private real property as a result of the proposed rule revision.

The requirement related to a rule increasing costs to regulated persons does not apply to the Texas State Board of Public Accountancy because the rule is being proposed by a self-directed semi-independent agency. (§2001.0045(c)(8))

Public Comment

Written comments may be submitted to J. Randel (Jerry) Hill, General Counsel, Texas State Board of Public Accountancy, 505 E. Huntland Dr., Suite 380, Austin, Texas 78752 or faxed to his attention at (512) 305-7854, no later than noon on November 22, 2021.

The Board specifically invites comments from the public on the issues of whether or not the proposed amendment will have an adverse economic effect on small businesses. If the proposed rule is believed to have an adverse effect on small businesses, estimate the number of small businesses believed to be impacted by the rule, describe and estimate the economic impact of the rule on small businesses, offer alternative methods of achieving the purpose of the rule; then explain how the Board may legally and feasibly reduce that adverse effect on small businesses considering the purpose of the statute under which the proposed rule is to be adopted; and finally, describe how the health, safety, environmental, and economic welfare of the state will be impacted by the various proposed methods. See Texas Government Code, §2006.002(c).

Statutory Authority

The amendment is proposed under the Public Accountancy Act ("Act"), Texas Occupations Code §901.151 and §901.655 which authorizes the Board to adopt rules deemed necessary or advisable to effectuate the Act.

No other article, statute or code is affected by this proposed amendment.

§523.132.Board Authorized [Contracted ] Ethics Instructors.

(a) The board may authorize [contract with] any instructor wishing to offer an ethics course approved by the board pursuant to §523.131 of this chapter (relating to Board Approval of Ethics Course Content) who can demonstrate that:

(1) the instructor is a CPA licensed in Texas or that the instructor is team teaching with a CPA licensed in Texas;

(2) the instructor has never been disciplined for a violation of the board's Rules of Professional Conduct unless waived by the board; and

(3) the instructor is qualified to teach ethical reasoning because he has:

(A) experience in the study and teaching of ethical reasoning; and

(B) formal training in organizational or ethical behavior instruction.

(b) An instructor demonstrates that he is qualified to teach ethical reasoning upon evidence that he has:

(1) at the time of his application obtained sufficient education in ethics substantially equivalent to a minimum of six hours of credit from a university, college or community college, of which at least three credit hours must be in organizational ethics or other education as approved by the board;

(2) teaching experience that is substantially equivalent to two or more full time semesters teaching experience at a university, college or community college, or other experience as approved by the board;

(3) spent at least 10 years performing accountancy related activities as a licensed CPA;

(4) no record of discipline for violation of the rules of professional conduct of the AICPA, the TSCPA or other national or state accountancy organization recognized by the board; and

(5) goals and interests consistent with the board's purpose of protecting the public interest pursuant to the provisions of the Act.

[(c) An instructor must renew the contract with the board every three years.]

(c) [(d)] The board may [refuse to contract, refuse to renew a contract or] cancel an authorization [the contract] of any instructor who no longer meets the requirements of this section or has engaged in conduct rendering that instructor unsuitable for teaching ethics.

(d) [(e)] An instructor must submit a current resume at the request of the board [with the contract].

(e) [(f)] Interpretive comments: To have goals and interests consistent with the board's purpose of protecting the public interest pursuant to the provisions of the Act, an instructor must refrain from using the instruction of an ethics course as a marketing tool for other products and services offered by the instructor. An instructor must be free from conflicts of interest with the board in both fact and appearance. Representation of a respondent or a complainant in a disciplinary proceeding pending before the board creates the appearance of a conflict of interest.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 6, 2021.

TRD-202103961

J. Randel (Jerry) Hill

General Counsel

Texas State Board of Public Accountancy

Earliest possible date of adoption: November 21, 2021

For further information, please call: (512) 305-7842


PART 39. TEXAS BOARD OF PROFESSIONAL GEOSCIENTISTS

CHAPTER 850. TEXAS BOARD OF PROFESSIONAL GEOSCIENTISTS

The Texas Board of Professional Geoscientists (TBPG) proposes amendments concerning the licensure and regulation of Professional Geoscientists in Texas. TBPG proposes amendments to 22 TAC §§850.10, 850.61, 850.62, 850.63, and 850.65 regarding definitions, organization, and responsibilities.

BACKGROUND, PURPOSE, AND SUMMARY OF CHANGES

TBPG recently reviewed its rules for its four-year rule review, pursuant to Government Code §2001.039, and now proposes amendments to its rules to add acronyms and to correct wording and grammar for consistency. The proposed amendment to 22 TAC §850.10 clarifies the definition of "Licensee" in subsection 1, adding the terms, "P.G.," "Geoscientist-in-Training (GIT)," and "Geoscience Firm (Firm)" to list out the acronyms that are used throughout the rules. The proposed amendment in 22 TAC §850.61 removes the words "in order" from subsection (d) to eliminate redundancy and for consistency. The proposed amendment in 22 TAC §850.62 capitalizes the word "Firm" in two instances when referring to a registered geoscience firm.

The proposed amendment in 22 TAC §850.63 adds the word "in" for clarity and consistency in subsection (a). The proposed amendment in 22 TAC §850.65 replaces the word "as" with "at" to correct and clarify the sentence.

FISCAL NOTE - STATE AND LOCAL GOVERNMENT

Rene D. Truan, Executive Director of the Texas Board of Professional Geoscientists, has determined that for each fiscal year of the first five years the rules are in effect these proposals have no foreseeable implications relating to cost or revenues of the state or of local governments caused by enforcing or administering the proposed rules.

PUBLIC BENEFIT AND COST

Mr. Truan has also determined that for each year of the first five years the section is in effect, the public will benefit from adoption of the sections. The public benefit anticipated as a result of enforcing or administering the sections includes ensuring that TBPG rules are clear and consistent as they relate to geoscience licensure in Texas. There will be no anticipated economic cost to individuals who are required to comply with the proposed sections.

SMALL, MICRO-BUSINESS, LOCAL ECONOMY, AND RURAL COMMUNITIES ECONOMIC IMPACT ANALYSIS

Mr. Truan has determined that the proposed rule will not have an adverse effect on small businesses, micro-businesses, local economy, or rural communities. Consequently, neither an economic impact statement, a local employment impact statement, nor a regulatory flexibility analysis is required.

GOVERNMENT GROWTH IMPACT STATEMENT

During the first five years that the rule would be in effect:

(1) the proposed rules do not create or eliminate a government program;

(2) implementation of the proposed rules does not require the creation of new employee positions or the elimination of existing employee positions;

(3) implementation of the proposed rules does not require an increase or decrease in future legislative appropriations to the agency;

(4) the proposed rules do not require an increase or decrease in fees paid to the agency;

(5) the proposed rules do not create a new regulation;

(6) the proposed rules do not expand, limit, or repeal an existing regulation;

(7) the proposed rules do not increase or decrease the number of individuals that are subject to the rules' applicability; and

(8) the proposed rules do not positively or adversely affect this state's economy.

REGULATORY ANALYSIS OF MAJOR ENVIRONMENTAL RULES

Mr. Truan has determined that this proposal is not a "major environmental rule" as defined by Government Code, §2001.0225. "Major environmental rule" is defined to mean a rule the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. Although Professional Geoscientists and Registered Geoscience Firms play a key role in environmental protection for the state of Texas, this proposal is not specifically intended to protect the environment nor reduce risks to human health from environmental exposure.

TAKINGS IMPACT ASSESSMENT

Mr. Truan has determined that the proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, do not constitute a taking under Texas Government Code, §2007.043.

PUBLIC COMMENT

Comments on the proposed amendments and new rules may be submitted in writing to Rene D. Truan, Executive Director, Texas Board of Professional Geoscientists, 333 Guadalupe Street, Tower I-530, Austin, Texas 78701 or by mail to P.O. Box 13225, Austin, Texas 78711 or by e-mail to rtruan@tbpg.texas.gov. Please indicate "Comments on Proposed Rules" in the subject line of all e-mails submitted. Please submit comments within 30 days following publication of the proposal in the Texas Register.

SUBCHAPTER A. AUTHORITY AND DEFINITIONS

22 TAC §850.10

STATUTORY AUTHORITY

This section is proposed under the Texas Geoscience Practice Act, Occupations Code §1002.151, which authorizes the Board to adopt and enforce all rules consistent with the Act as necessary for the performance of its duties.

This section affects the Texas Geoscience Practice Act, Occupations Code §§1002.002.

§850.10.Definitions.

The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:

(1) Advisory opinion--An interpretation of the Act or an application of the Act to a person with respect to a specified existing or hypothetical factual situation prepared by the Appointed Board on its own initiative or at the request of any interested person.

(2) The Act--Texas Occupations Code, Chapter 1002, cited as the Texas Geoscience Practice Act.

(3) APA--The Administrative Procedure Act (TEX. GOV'T. CODE, Chapter 2001).

(4) Appointed Board--Those persons who are appointed by the Governor and confirmed by the Senate and qualify for office who may deliberate, vote, and be counted as a member in attendance of the Texas Board of Professional Geoscientists.

(5) Board staff--The Executive Director and all other staff employed by the Texas Board of Professional Geoscientists (administrative, investigative, and other support staff, etc.).

(6) Contested case or proceeding--A proceeding in which the legal rights, duties, or privileges of a party are to be determined by the Appointed Board after an opportunity for adjudicative hearing.

(7) Executive Director--The individual appointed by the Appointed Board who shall be responsible for managing the day to day affairs of the board, in accordance with the Act.

(8) License--The whole or part of any TBPG registration, license, certificate of authority, approval, permit, endorsement, title or similar form of permission required or permitted by the Act.

(9) Licensee--An individual holding a current Professional Geoscientist (P.G.) license, Geoscientist-in-Training (GIT) [GIT] certificate, or Geoscience Firm (Firm) [firm] registration.

(10) Rule or Board Rule--State agency rules adopted by the Appointed Board and as published in the Texas Administrative Code Title 22; Part 39; Chapters 850 and 851.

(11) Sanction--A penalty imposed in a disciplinary process. An imposed disciplinary action is a sanction.

(12) TBPG--The Texas Board of Professional Geoscientists, as used in this Chapter, is a reference to the whole or any part of the entity that is the Texas Board of Professional Geoscientists.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 7, 2021.

TRD-202103977

Rene Truan

Executive Director

Texas Board of Professional Geoscientists

Earliest possible date of adoption: November 21, 2021

For further information, please call: (512) 936-4408


SUBCHAPTER B. ORGANIZATION AND RESPONSIBILITIES

22 TAC §§850.61 - 850.63, 850.65

STATUTORY AUTHORITY

This section is proposed under the Texas Geoscience Practice Act, Occupations Code §1002.151, which authorizes the Board to adopt and enforce all rules consistent with the Act as necessary for the performance of its duties.

This section affects the Texas Administrative Procedure Act, Government Code § 2001.021, regarding petition for adoption of rules.

§850.61.Responsibilities of the Board - Meetings.

(a) Meetings will be conducted under Robert's Rules of Order.

(b) Unless the Act provides another standard, when a quorum (a majority of the members) is present, a motion before the Appointed Board is carried by an affirmative vote of the majority of the members of the Appointed Board present.

(c) Meetings will be conducted as public meetings under the Government Code, Chapter 551, Subchapter A, Open Meetings.

(d) The Appointed Board will determine on a case by case basis, the number of and the location of cameras and recording devices [in order] to maintain order during Appointed Board meetings.

(e) The Appointed Board shall provide the public a reasonable opportunity to appear before the Appointed Board at its meetings and to speak on any issue under the jurisdiction of the TBPG. Subject to the statutory requirement of a "reasonable opportunity," the Appointed Board may limit the amount of time that each speaker may speak on a given subject under the jurisdiction of the TBPG.

§850.62.General Powers and Duties of the TBPG.

(a) Unless exempted by the Act, the TBPG ensures that a person may not engage in the public practice of geoscience unless the person holds a license issued by the TBPG.

(b) The TBPG ensures that a person does not take responsible charge of a geoscientific report or a geoscientific portion of a report required by municipal or county ordinance, state or federal law, state agency rule, or federal regulation that incorporates or is based on a geoscientific study or geoscientific data unless the person is licensed under the authority provided to the TBPG under the Act.

(c) The Act and Rules adopted by the Appointed Board under the authority of the Act apply to every licensee, registered Firm [firm], Geoscientist-in-Training, and unlicensed individual or unregistered firm providing or offering to provide professional geoscience services.

(d) Unless an exemption in the Act applies, the TBPG ensures that all Firms [firms] offering to engage or engaging in the public practice of professional geoscience in Texas are registered as a Geoscience Firm.

(e) Citizens who do not speak English or who have a physical, mental, or developmental disability will be provided reasonable access to the TBPG meetings and programs.

(f) The TBPG welcomes appropriate citizen input and communications at TBPG meetings and upon prior reasonable notice to the TBPG, the TBPG will provide interpreters and/or sign language specialists to assist the public in presenting their input to the TBPG.

(g) The TBPG works with each state agency that uses the services of a person licensed by the TBPG and other state agencies as determined by the Appointed Board, including a state agency with which the Appointed Board has entered into a Memorandum of Understanding that addresses the coordination of activities or complaints, to educate the agencies' employees regarding the procedures by which complaints are filed with and resolved by the TBPG.

§850.63.Responsibilities of the Appointed Board.

(a) The Appointed Board may take the disciplinary actions described in and set forth in the Act on the grounds described in and set forth in the Act, and may issue orders accordingly.

(b) The Appointed Board may deny a license on the grounds described in and set forth in the Act.

(c) The Appointed Board may reinstate a license by the procedures and on the conditions set forth in the Act.

(d) The Appointed Board may impose an administrative penalty based on the factors and subject to the limitations set forth in the Act.

(e) The Appointed Board, through its Executive Director, shall give notice of its order imposing a sanction or penalty to all parties. The notice must include:

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

(2) the specific disciplinary action to be taken and the amount of any penalty assessed, if applicable;

(3) whether or not a motion for rehearing is required as a prerequisite for appeal; and

(4) the motion for rehearing time table.

(f) Licensees will be notified at least 60 days in advance of impending expiration of the license and what the fee will be.

(g) Special accommodation exams will be made available as required by the Americans with Disabilities Act of 1990, Public Law 101-336.

§850.65.Petition for Adoption of Rules.

Any interested party may request adoption of a rule(s) by submitting a letter of request to the TBPG with a draft of the rule(s) attached. At [As] a minimum the request should contain:

(1) items to be deleted should be bracketed or lined through;

(2) items added should be underlined; and

(3) the rationale for the requested rule change.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 7, 2021.

TRD-202103978

Rene Truan

Executive Director

Texas Board of Professional Geoscientists

Earliest possible date of adoption: November 21, 2021

For further information, please call: (512) 936-4408


CHAPTER 851. TEXAS BOARD OF PROFESSIONAL GEOSCIENTISTS LICENSING AND ENFORCEMENT RULES

The Texas Board of Professional Geoscientists (TBPG) proposes amendments to rules and repeals concerning the licensure and regulation of Professional Geoscientists in Texas. TBPG proposes amendments to 22 TAC §§851.10, 851.20 - 851.22, 851.28 - 851.32, 851.40, 851.43, 851.85, 851.101 - 851.106, 851.108, 851.109, 851.111 - 851.113, 851.151 - 851.153, 851.156 - 851.159, 851.203, 851.204, 851.220 regarding TBPG licensing and enforcement rules. TBPG also proposes to repeal 22 TAC §851.83 regarding temporary exemption of certain licensees from continuing education requirements, and 22 TAC §851.154 regarding student loan default being ground for nonrenewal of license.

BACKGROUND, PURPOSE, AND SUMMARY OF CHANGES

TBPG recently reviewed its rules for its four-year rule review, pursuant to Government Code §2001.039, and is now proposing amendments and repeals to its rules to make clarifications and changes and to correct wording and grammar.

The proposed amendments clarify definitions regarding geoscience firms, remove a definition for a sole proprietor, and add a definition for a sole practitioner. The proposed amendment to 851.30 modifies the application process for geoscience firms to now require a federal employer identification number (EIN) instead of the previous requirement for a certificate of authority from the Office of the Secretary of State. The modification to this rule will assist in streamlining the process for registrants and it will be more consistent with other licensing agencies in the state of Texas. The proposed amendments add TBPG's new examination waiver policy for P.G. applicants in the Soil Science discipline. The proposed amendments make changes throughout the rules to remove the name "National Association of State Board of Geology (ASBOG®)" where it appears and replace it with the shortened name "ASBOG®" when referring to the provider of the Geology Fundamentals and Practice exams. Other proposed changes throughout the rules capitalize the word "Firm" when it refers to a registered geoscience firm, change the phrase "public health, safety, and welfare" for consistency, add acronyms where possible, and correct wording and grammar for accuracy.

In subchapter A, proposed amendment to 851.10 clarifies the definition of "Geoscience Firm," removes the definition of "Sole Proprietor," and adds a definition for "Sole Practitioner." Other proposed changes to the definitions include adding acronyms for "P.G." and "GIT," removing unnecessary words, and correcting wording and grammar for consistency.

In subchapter B, proposed changes to 851.20 remove a reference to NAFTA and change it to refer to "the U.S.-Mexico-Canada Agreement (USMCA) in subsection (h). Proposed amendment to 851.21 revises the name "National Association of State Boards of Geology (ASBOG®)" to be "ASBOG®" to reflect ASBOG's shortened name. Proposed amendment to 851.22 removes unnecessary wording in subsection (a), modifies the name for "Form VI-Request for Waiver of Licensing Requirement - Board Policy and Procedures," and renumbers the section. Other changes include adding TBPG's new examination waiver policy for P.G. applicants in the Soil Science discipline and revising the name "National Association of State Boards of Geology (ASBOG®)" to be "ASBOG®" to reflect ASBOG's shortened name. Proposed amendment to 851.28 adds wording in subsection (a) to indicate that renewal notices that are sent to licensees will be sent via mail "or email" at least 60 days prior to the license expiration date. Proposed amendment to 851.29 removes the term "in order" in multiple instances and clarifies subsection (b)(3) regarding licensure in another jurisdiction or country that is issued either "without exam or with a similar exam" for clarity. Proposed amendment to 851.30 streamlines the application process for firm registration so as to now require a federal employer identification number (EIN) instead of a certificate of authority from the Office of the Secretary of State; the amendment capitalizes the word "Firm" when referring to a registered geoscience firm; it makes changes to the name "ASBOG®" to reflect ASBOG's shortened name; removes unnecessary definition for "certificant;" it clarifies the definition for Council of Soil Scientist Examiners; and renumbers the section accordingly. Proposed amendment to 851.31 renames the section to be: "Temporary P.G. License and Temporary Firm Registration" and adds language for a firm that wishes to temporarily engage in the public practice of geoscience in this state to be able to apply for temporary firm registration in Texas if it meets certain requirements. Proposed amendment to 851.32 revises the name "National Association of State Boards of Geology (ASBOG®)" to be "ASBOG®" to reflect ASBOG's shortened name in subsection (b) (4) (A). Proposed amendment to 851.43 revises subsection (c) to show that "A GIT is exempt from the continuing education requirement during the first renewal period. The continuing education requirement must be met in subsequent renewals." Rule 851.83 is proposed for repeal. Proposed amendment to 851.85 rephrases the term "public health, safety, and welfare" for consistency, and it replaces the word "waive" in subsection (b) (2) with the term "temporarily suspend" for accuracy.

In subchapter C, proposed amendment to 851.101 replaces the term "Professional Geoscientist" with the acronym "P.G." and replaces the term "Geoscientist-in-Training" with the term "GIT" in multiple places. The proposed amendment also replaces the term "Geoscience Firm" with the word "Firm." Other changes include removing the phrase "or is providing such service on behalf of themselves or some other organization for which their services are provided at no cost," when referring to professional geoscience services rendered. Proposed amendment to 851.102 cleans up the language in subsection (c) so that it reads, "A Professional Geoscientist or a Geoscience Firm shall not engage in conduct or perform professional geoscience services characterized by Gross Incompetence including work that evidenced an inability or lack of skill or knowledge necessary to discharge the duty and responsibility required of a Professional Geoscientist or Geoscience Firm; or evidenced by an extreme lack of knowledge of, or an inability or unwillingness to apply, the principles or skills generally expected of a reasonably prudent Professional Geoscientist or Geoscience Firm." Proposed amendment to 851.103 cleans up the language in subsection (a) so that it reads, "A Professional Geoscientist or Geoscience Firm shall not practice geoscience in any manner that, when measured by generally accepted geoscience standards or procedures, does or is reasonably likely to result in the endangerment of public health, safety, or welfare. Such practice is deem to be 'reckless.'" Proposed changes to subsection (b) (3) revise the sentence so that it reads, "Action which demonstrates a conscious disregard for compliance with a statute, regulation, code, ordinance, or recognized standard applicable to a particular project when such disregard jeopardizes or has the potential to jeopardize public health, safety, or welfare." Proposed amendment to 851.104 removes the phrase "an act" in subsection (a), and replaces the term "government funded" with "government-funded" for accuracy. Proposed changes also rephrase the term "public health, safety, and welfare" in subsections (f) and (h) for consistency. Proposed amendment to 851.105 replaces the word "which" with "that" for accuracy, removes the phrase, "of the Professional Geoscientist, the Geoscientist-in-Training, or Geoscience Firm" because it is unnecessary in the sentence, and replaces the terms "Professional Geoscientist, Geoscientist-in-Training, or Geoscience Firm" with the acronyms "P.G., GIT, or Firm." Proposed amendment to 851.106 removes the word "which" in subsection (b) (3) and replaces it with the word "that," and removes the term "in order" in subsection (g). Proposed amendment to 851.108 removes the words "Texas Board of Professional Geologists (TBPG)" and replaces it with the acronym "TBPG." Proposed amendment to 851.109 removes the phrase "it is found by" in subsection (a), and replaces it with the word "finds." Proposed changes in subsection (a) also remove the terms "Act or the rules of the TBPG" and replace it with "TBPG Act or rules." Proposed changes also rephrase the term "public health, safety, and welfare" in subsection (b), and remove the term "In order to" and replace with "To" in subsection (c) for accuracy and consistency. Proposed amendment to 851.111 rephrases the term "public health, safety, and welfare" in subsection (a), and adds the term "GIT" in subsection (c), when referring to "A Professional Geoscientist, GIT, or Geoscience Firm shall exercise reasonable care to prevent unauthorized disclosure or use of private information or confidences concerning a client or employer by the Professional Geoscientist's or Geoscience Firm's employees and associates." Proposed amendment to 851.112 simply rewords the rule.

In subchapter D, proposed amendment to 851.151 revises subsection (a)(2)(B) to show that unless a person is licensed by TBPG, a person may not otherwise represent to the public that the person is qualified to: "Engage in the practice of geoscience for the public, including individuals, corporations, governments or courts." It also corrects punctuation. Proposed amendment to 851.152 capitalizes the word "Firm" in several places, removes the entire subsection (b) because this information is already included in 22 TAC 851.10 under the definition of a Geoscience Firm, and renumbers the subsection. The amendment also removes the term "sole proprietor" in previous subsection (d), replacing it with the term "sole practitioner," and it removes the term "non-exempt" when referring to the public practice of geoscience. Proposed amendment to 851.153 adds the phrase "including GITs" in the statement that "Professional Geoscientists shall perform or directly supervise the geoscience services of any subordinates, including GITs." Rule 851.154 is proposed for repeal to be consistent with a statutory change that no longer supports the board taking disciplinary action against a person on the basis that the person defaulted on a student loan. Proposed amendment to 851.156 revises a sentence in subsection (c) to read, "A Professional Geoscientist shall seal only documents that contain geoscience services performed by or under the Professional Geoscientist's direct supervision." In subsection (d), changes are made to rephrase the term "public health, safety, and welfare" for consistency. In subsection (g)(1)(B), the term "his/her" is replaced with the term "the Professional Geoscientist's." In subsection (j), the term "insure" is replaced with the term "ensure" for accuracy, and the term "his/her" is replaced with "the Professional Geoscientist's." Previous subsection (k) has been separated into two sections, existing subsection (k) and new subsection (l), and changes are made so that the word "their" is replaced with the term "a P.G.'s," when referring to documents released from a P.G.'s control, and the section is renumbered. Newly re-sequenced subsection (o) rephrases the term "Professional Geoscientist(s)," and newly re-sequenced subsection (u) adds the word "subsequently." Proposed amendment to 851.157 rephrases a sentence in subsection (e)(2) regarding the two types of complaints and investigations to read: "Complaints and investigations that are initiated by the Board staff or an Appointed Board Member as a result of information that may indicate a violation that becomes known to the Board staff or an Appointed Board Member." Proposed amendment to 851.158 rephrases subsection (1)(I) to read that staff have the option to: "Dismiss, with or without advisement, complaints that are meritless, non-jurisdictional, or that do not involve a threat or potential threat to public health, safety, and welfare, with the exception of complaints that involve violations of the continuing education requirement." Proposed changes also remove the word "and" in subsection (3)(B)(ii). Proposed amendment to 851.159 adds commas in subsection (a)(5) for accuracy, replaces the word "corporation" with the word "firm" throughout the rule, removes the word "or" in subsection (b)(10) and (c)(8), and rephrases "public health, safety, and welfare" throughout the rule for consistency.

In subchapter E, proposed amendment to 851.203 removes the word "the" before "TBPG" in subsection (f)(3). Proposed amendment to 851.204 adds a comma in subsection (e) before the word, "if any." Proposed amendment to 851.220 removes the term "the Board" in two places and replaces it with "TBPG."

FISCAL NOTE - STATE AND LOCAL GOVERNMENT

Rene D. Truan, Executive Director of the Texas Board of Professional Geoscientists, has determined that for each fiscal year of the first five years the rules are in effect these proposals have no foreseeable implications relating to cost or revenues of the state or of local governments caused by enforcing or administering the proposed rules.

PUBLIC BENEFIT AND COST

Mr. Truan has also determined that for each year of the first five years the section is in effect, the public will benefit from adoption of the section. The public benefit anticipated as a result of enforcing or administering the sections includes ensuring that TBPG rules are clear and consistent as they relate to geoscience licensure in Texas. There will be no anticipated economic cost to individuals who are required to comply with the proposed sections.

SMALL, MICRO-BUSINESS, LOCAL ECONOMY, AND RURAL COMMUNITIES ECONOMIC IMPACT ANALYSIS

Mr. Truan has determined that the proposed rule will not have an adverse effect on small businesses, micro-businesses, local economy, or rural communities. Consequently, neither an economic impact statement, a local employment impact statement, nor a regulatory flexibility analysis is required.

GOVERNMENT GROWTH IMPACT STATEMENT

During the first five years that the rule would be in effect:

(1) the proposed rules do not create or eliminate a government program;

(2) implementation of the proposed rules does not require the creation of new employee positions or the elimination of existing employee positions;

(3) implementation of the proposed rules does not require an increase or decrease in future legislative appropriations to the agency;

(4) the proposed rules do not require an increase or decrease in fees paid to the agency;

(5) the proposed rules do not create a new regulation;

(6) the proposed rules do not expand, limit, or repeal an existing regulation;

(7) the proposed rules do not increase or decrease the number of individuals that are subject to the rules' applicability; and

(8) the proposed rules do not positively or adversely affect this state's economy.

REGULATORY ANALYSIS OF MAJOR ENVIRONMENTAL RULES

Mr. Truan has determined that this proposal is not a "major environmental rule" as defined by Government Code, §2001.0225. "Major environmental rule" is defined to mean a rule the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. Although Professional Geoscientists and Registered Geoscience Firms play a key role in environmental protection for the state of Texas, this proposal is not specifically intended to protect the environment nor reduce risks to human health from environmental exposure.

TAKINGS IMPACT ASSESSMENT

Mr. Truan has determined that the proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, do not constitute a taking under Texas Government Code, §2007.043.

PUBLIC COMMENT

Comments on the proposed amendments and new rules may be submitted in writing to Rene D. Truan, Executive Director, Texas Board of Professional Geoscientists, 333 Guadalupe Street, Tower I-530, Austin, Texas 78701 or by mail to P.O. Box 13225, Austin, Texas 78711 or by e-mail to rtruan@tbpg.texas.gov. Please indicate "Comments on Proposed Rules" in the subject line of all e-mails submitted. Please submit comments within 30 days following publication of the proposal in the Texas Register.

SUBCHAPTER A. DEFINITIONS

22 TAC §851.10

STATUTORY AUTHORITY

This section is proposed under the Texas Geoscience Practice Act, Occupations Code §1002.151, which authorizes the Board to adopt and enforce all rules consistent with the Act as necessary for the performance of its duties.

This section affects the Texas Geoscience Practice Act, Occupations Code §§1002.002 and 1002.151.

§851.10.Definitions.

The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:

(1) Act--Texas Occupations Code, Chapter 1002, cited as the Texas Geoscience Practice Act.

(2) Accredited institutions or programs--An institution or program which holds accreditation or candidacy status from an accreditation organization recognized by the Council for Higher Education Accreditation (CHEA) or other appropriate accrediting entity accepted by the Appointed Board.

(3) Address of record--In the case of an individual or Firm [firm] licensed, certified, or registered by the Texas Board of Professional Geoscientists (TBPG), the address which is filed by the licensee with the TBPG.

(4) Advertising or Advertisement--Any non-commercial or commercial message, including, but not limited, to verbal statements, bids, web pages, signage, provider listings, and paid advertisement that [which] promotes geoscience services.

(5) Applicant--An individual making application for a Professional Geoscientist (P.G.) [geoscience] license or a Geoscientist-in-Training (GIT) certification or [;] a firm and/or the Authorized Official of a Firm making application for a Geoscience Firm (Firm) registration.

(6) Application--The forms, information, attachments, and fees necessary to obtain a license as a Professional Geoscientist, the registration of a Firm, or a certification as a Geoscientist-in-Training (GIT).

(7) Appointed Board--Those persons who are appointed by the Governor and confirmed by the Senate and qualify for office who may deliberate, vote, and be counted as a member in attendance of the Texas Board of Professional Geoscientists.

(8) ASBOG®--[National] Association of State Boards of Geology. ASBOG® serves as a connective link among the individual state geology regulatory [geologic registration licensing] boards for the planning and preparation of uniform procedures and the coordination of geologic protective measures for the general public. One of ASBOG®'s principal services is to develop standardized written examinations for determining qualifications of applicants seeking licensure as professional geologists. State boards of registration are provided with uniform examinations that are valid measures of competency related to the practice of the profession.

(9) Authorized Official of a Firm (AOF)--The individual designated by a Geoscience Firm to be responsible for [the process of] submitting the application to TBPG for the initial registration of the Firm [firm with the TBPG]; ensuring that the Firm [firm] maintains compliance with the registration requirements [of registration with the TBPG]; ensuring that the Firm [firm] renews its registration status for as long as the Firm [firm] offers or provides professional geoscience services; ensuring that the designated geoscientist is a currently licensed P.G.; and communicating with the TBPG regarding any matter.

(10) Board staff--The Executive Director and all other staff employed by the Texas Board of Professional Geoscientists (administrative, investigative, and other support staff, etc.).

[(11) Certificant--An individual holding a certificate as a Geoscientist-in-Training.]

(11) [(12)] Cheating--Attempting to obtain, obtaining, providing, or using answers to examination questions by deceit, fraud, dishonesty, or deception.

(12) [(13)] Complainant--Any individual who has submitted a complaint to the TBPG, as provided in this chapter.

(13) [(14)] Complaint--An allegation or allegations of wrongful activity related to the practice or offering of professional geoscience services in Texas. A complaint is within the TBPG's jurisdiction if the complaint alleges a violation of statutes or rules applicable to the public practice of geoscience or the requirements of licensure of a Professional Geoscientist (P.G.) or registration by an individual, firm, or other legal entity.

(14) [(15)] Council of Soil Scientist Examiners (CSSE)--The [purpose of the] Council of Soil Science Examiners is a national organization that creates, scores and maintains [is to create, score and maintain] examinations for State Soil Scientists regulatory [licensing ] programs. CSSE develops professional criteria to confirm that individuals meet and exceed minimum qualifications to practice the profession.

(15) [(16)] Default--The failure of the Respondent to respond in writing to a notice or appear in person or by legal representative on the day and at the time set for hearing in a contested case or informal conference, or the failure to appear by telephone, e-mail, fax or other electronic media in accordance with the notice of hearing or notice of informal conference. Default results in the actions being taken that were described in the notice of the hearing for a contested case or informal conference in the event of a failure to appear.

(16) [(17)] Direct supervision--Critical watching, evaluating, and directing of geoscience activities with the authority to review, enforce, and control compliance with all geoscience criteria, specifications, and procedures as the work progresses. Direct supervision will consist of an acceptable combination of: exertion of significant control over the geoscience work, regular personal presence, reasonable geographic proximity to the location of the performance of the work, and an acceptable employment relationship with the supervised individual(s).

(17) [(18)] Discipline--One of three recognized courses of study under which an individual may qualify for a license as a Professional Geoscientist. Geoscience is comprised of the following disciplines: geology, geophysics, and soil science.

(18) [(19)] Executive Director--The individual appointed by the Appointed Board who shall be responsible for managing the day to day affairs of the board, in accordance with the Act.

(19) [(20)] Filed date--The date that the document has been received by the TBPG or, if the document has been mailed to the TBPG, the postmark date of the document.

(20) [(21)] Geology--The discipline of geoscience that addresses the science of the origin, composition, structure, and history of the Earth and its constituent soils, rocks, minerals, fossil fuels, solids, fluids and gases [gasses], and the study of the natural and introduced agents, forces, and processes that cause changes in and on the Earth, and is applied with judgment to develop ways to utilize, economically, those natural and introduced agents, forces, and processes for the benefit of mankind. There are many subdivisions of geology, which include, but are not limited to, the following: historical geology, physical geology, economic geology, mineralogy, paleontology, structural geology, mining geology, petroleum geology, physiography, geomorphology, geochemistry, hydrogeology, petrography, petrology, volcanology, stratigraphy, engineering geology, and environmental geology.

(21) [(22)] Geophysics--Refers to that science which involves the study of the physical Earth by means of measuring its natural and induced fields of force, and its responses to natural and induced energy or forces, the interpretation of these measurements, applied with judgment to benefit or protect the public.

(22) [(23)] Geoscience--The science of the Earth and its origin and history, the investigation of the Earth's environment and its constituent soils, rocks, minerals, fossil fuels, solids, and fluids, and the study of the natural and introduced agents, forces, and processes that cause changes in and on the Earth as applied with professional judgment to develop ways to utilize, [economically,] those natural and introduced agents, forces, and processes for the benefit of the public.

(23) [(24)] Geoscience Firm (Firm) --A firm, corporation, or other business entity that engages in or offers to engage in the practice of professional geoscience before the public in the State of Texas and that is registered by the board to engage in the public practice of geoscience. [Any entity that engages in or offers to engage in the practice of professional geoscience before the public in the State of Texas This term includes a sole practitioner registered with TBPG as a Geoscience Firm, a sole proprietor registered as a Geoscience Firm, co-partnership, corporation, partnership, limited liability company, joint stock association, or other business organization.]

(24) [(25)] Geoscience services (also professional geoscience services, and professional geoscience)--Services that [which] must be performed by or under the direct supervision of a Professional Geoscientist and that [which ] meet the definition of the practice of geoscience as defined in the Texas Occupations Code, §1002.002(3). A service shall be conclusively considered a professional geoscience service if it is delineated in that section; other services requiring a Professional Geoscientist by contract, or services where the adequate performance of that service requires a geoscience education, training, or experience in the application of special knowledge or judgment of the geological, geophysical or soil sciences to that service shall also be conclusively considered a professional geoscience service. These services may include consulting, investigating, evaluating, analyzing, planning, mapping, and inspecting geoscientific work, and the responsible supervision of those tasks.

(25) [(26)] License--The legal authority granted the holder to actively practice geoscience upon meeting the requirements as set out in the Act and this chapter.

(26) [(27)] License certificate--Any certificate issued by the TBPG showing that a license, registration, or certificate has been granted by the TBPG. A certificate is not valid unless it is accompanied by a card issued by the TBPG that [which] shows the expiration date of the license, registration or certification.

(27) [(28)] License status--The status of a Professional Geoscientist license, Geoscience Firm registration, or GIT certification is one of the following:

(A) Current license--A license, registration, or certification that has not expired.

(B) Expired license--A Professional Geoscientist license that has been expired for less than three years and is therefore renewable, or a Geoscience Firm registration or GIT certification that has been expired for less than one year and is therefore renewable.

(C) Permanently expired license--A license, registration, or certification that is no longer renewable.

(28) [(29)] Licensee--An individual or other entity holding a current Professional Geoscientist license, GIT certificate, or Firm [firm] registration.

(29) [(30)] Meritless complaint--a complaint in which the allegations are unfounded or groundless (no legitimate basis for the allegation) or the allegations are unsubstantiated or unverified (no determination could be made as to whether there was any basis for the allegation).

(30) [(31)] Non-jurisdictional complaint--a complaint in which the TBPG has no jurisdiction over the alleged conduct.

(31) [(32)] Person--Any individual, firm, partnership, corporation, association, or other legal public or private entity, including a state agency or governmental subdivision.

(32) [(33)] Professional Geoscientist or P.G.--An individual who holds a license as a Professional Geoscientist issued by the TBPG.

(33) [(34)]Practice for the public--

(A) Providing professional geoscience services:

(i) For a governmental entity in Texas;

(ii) To comply with a rule established by the State of Texas or a political subdivision of the State of Texas; or

(iii) For the public or a firm or corporation in the State of Texas if the practitioner accepts ultimate liability for the work product; and

(B) Does not include services provided for the express use of a firm or corporation by an employee or consultant if the firm or corporation assumes the ultimate liability for the work product.

(34) [(35)]The Public--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 or be impacted by professional geoscience services.

(35) [(36)] Registered Firm [firm]--A firm that is currently registered with the TBPG.

(36) [(37)] Registrant--An individual whose sole-proprietorship is currently registered with the TBPG or a firm that is currently registered with the TBPG.

(37) [(38)] Respondent--Any individual or firm, licensed or unlicensed, who has been charged with violating any provision of the Act or a rule or order issued by the Appointed Board.

(38) [(39)] Responsible charge--The independent control and direction of geoscience services or the supervision of geoscience services by the use of initiative, skill, and independent judgment.

(39) [(40)] Rule or Board Rule--State agency rules adopted by the Appointed Board and as published in the Texas Administrative Code, Title 22, Part 39, Chapters 850 and 851.

(40) [(41)] Soil Science--Soil science means the science of soils, their classification, origin and history, the investigation and interpretation of physical, chemical, morphological, and biological characteristics of the soil including, among other things, their ability to produce vegetation and the fate and movement of physical, chemical, and biological contaminants.

(41) [(42)] Sole practitioner [Sole-proprietorship]--An individual Professional Geoscientist who operates a geoscience business and who is in responsible charge of all geoscience work performed by or for the business. [A single owned Professional Geoscientist's geoscience business that has no separate legal existence from its owner].

(42) [(43)] TBPG--The Texas Board of Professional Geoscientists, as used in this chapter, is a reference to the whole or any part of the entity that is the Texas Board of Professional Geoscientists.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 7, 2021.

TRD-202103979

Rene Truan

Executive Director

Texas Board of Professional Geoscientists

Earliest possible date of adoption: November 21, 2021

For further information, please call: (512) 230-5576


SUBCHAPTER B. P.G. LICENSING, FIRM REGISTRATION, AND GIT CERTIFICATION

22 TAC §§851.20 - 851.22, 851.28 - 851.32, 851.40, 851.43, 851.85

STATUTORY AUTHORITY

These sections are proposed under the Texas Geoscience Practice Act, Occupations Code §1002.151, which authorizes the Board to adopt and enforce all rules consistent with the Act as necessary for the performance of its duties; §1002.255, which authorizes the Board to establish license eligibility requirements; §1002.259, which authorizes the Board to waive certain requirements for licensure; §1002.261, which authorizes the Board to issue a license to applicants who meet the requirements of licensure; §1002.351, which authorizes the Board to regulate the public practice of geoscience by a firm or corporation; and §1002.352, which authorizes the Board to establish criteria for geoscientists-in-training.

These sections affect the Texas Geoscience Practice Act, Occupations Code §§1002.151, 1002.154, 1002.253, 1002.254, 1002.255, 1002.256, 1002.257, 1002.258, 1002.259, 1002.261, 1002.262, 1002.301, 1002.302, 1002.351, and 1002.352.

§851.20.Professional Geoscientist Licensing Requirements and Application Procedure.

(a) Requirements for licensure:

(1) Passing score on an examination or examinations required by the Texas Board of Professional Geoscientists (TBPG) covering the fundamentals and practice of the appropriate discipline of geoscience documented as specified in §851.21 of this chapter;

(2) Has a documented record of at least five years of qualifying work experience during which the applicant has demonstrated being qualified to assume responsible charge of geoscience services as specified in §851.23 of this chapter and Texas Occupations Code (TOC) §1002.256:

(A) A total of one year of qualifying work experience credit may be granted for each full-time year of graduate study in a discipline of geoscience, not to exceed two years;

(B) The Appointed Board may accept qualifying work experience in lieu of the education requirement as provided in TOC §1002.255;

(3) Academic requirements for licensure as specified in TOC §1002.255 and §851.25 of this chapter; and

(4) Supporting documentation of any license requirement, as determined by Board staff or the Appointed Board, relating to criminal convictions as specified in §851.108 of this chapter; relating to substance abuse issues as specified in §851.109 of this chapter; and relating to issues surrounding reasons the Appointed Board may deny a license as specified in the Geoscience Practice Act at TOC §1002.401 and §1002.402.

(b) An applicant may request a waiver of any licensure requirement by submitting a Waiver Request (Form VI) and any additional information needed to substantiate the request for waiver with the application. If the Appointed Board determines that the applicant meets all the other requirements, the Appointed Board may waive any licensure requirement except for the payment of required fees.

(c) An application is active for one year including the date that it is filed with the Appointed Board.

(d) Professional Geoscientist application procedure. To be eligible for a Professional Geoscientist license under this chapter, an applicant must submit or ensure the transmission (as applicable) of the following to the TBPG:

(1) A completed, signed application for licensure as a Professional Geoscientist;

(2) Documentation of having passed an examination as specified in §851.21 of this chapter;

(3) Documentation of having met the experience requirements as specified in §851.23 of this chapter;

(4) Official transcript(s), as specified in §851.25 of this chapter;

(5) The application/first year licensing fee as specified in §851.80(b) of this chapter;

(6) Verification of every license, current or expired, in any regulated profession related to the public practice of geoscience in any jurisdiction (for example, Professional Engineer, licensed Water Well Driller, etc.); and

(7) Any written explanation and other documentation as required by instructions on the application or as communicated by Board staff, if applicable.

(e) Any transcripts, evaluations, experience records or other similar documents submitted to the TBPG in previous applications may be included in a current application provided the applicant requests its use in writing at the time the application is filed and the Executive Director authorizes its use.

(f) An application may be forwarded to the Appointed Board at the Executive Director's discretion.

(g) Obtaining or attempting to obtain a license by fraud or false misrepresentation is grounds for an administrative sanction and/or penalty.

(h) An applicant who is a citizen of another country and is physically present in this country shall show sufficient documentation to the TBPG 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. In most cases, a copy of a current visa or something equivalent will be sufficient. For applicants from countries that have a standing trade agreement with the US that specifically and adequately addresses professional licensure, such as the U.S.-Mexico-Canada Agreement (USMCA) [NAFTA] or AUSFTA, a copy of a visa is not required; however, the applicant must identify the trade agreement under which the applicant would be working in the US, and must establish the applicant has the required legal status to work in Texas.

(i) Applications are not reviewed until the application and fee have been received in the TBPG office. Applicants are initially notified of any deficiencies in the application within approximately thirty (30) days after the receipt of the application and fee.

(j) An applicant should respond to a deficiency notice within forty-five (45) days from the date of notification for applicants to correct deficiencies. If an applicant does not respond to a deficiency notice or does not ensure that necessary documents are provided to the TBPG office, the application will expire as scheduled one year after the date it became active.

(k) Upon receipt of all required materials and fees and satisfying all requirements in this section, the applicant shall be licensed and a unique Professional Geoscientist license number shall be assigned to the license. A new license shall be set to expire at the end of the calendar month occurring one year after the license is issued. Board staff shall send a new license certificate, license certificate expiration card, and a wallet license expiration card as provided in subsection (p) of this section.

(l) A new license is valid for a period of one year from the date it is issued. Upon the first timely renewal of a license, the renewal period shall be from the date the license is renewed until the last day of the next birth month for the licensee. A license that is renewed late (one day after the expiration date of the license through the end of the 36th month past the expiration date of the license) is renewed in accordance to the rules set forth in §851.28 of this chapter.

(m) A license number is not transferable.

(n) Any violation of the law or the rules and regulations resulting in disciplinary action for one license may result in disciplinary action for any other license.

(o) Altering a license wall certificate, license certificate expiration card, or wallet license expiration card in any way is prohibited and is grounds for a sanction and/or penalty.

(p) The Professional Geoscientist license is the legal authority granted the holder to actively practice geoscience upon meeting the requirements as set out in the Act and this chapter. When a license is issued, a license wall certificate, the first license certificate expiration card, and the first wallet license expiration card are provided to the new licensee.

(1) The license wall certificate shall bear the name of the licensee, the licensee's unique Professional Geoscientist license number, the discipline in which the individual is licensed, and the date the license was originally issued.

(2) The license wall certificate is not valid proof of licensure unless the license certificate expiration card is accompanying the license certificate and the date on the license certificate card is not expired.

(3) The license certificate expiration card shall bear the name of the licensee, the licensee's unique Professional Geoscientist license number, and the date the license will expire, unless it is renewed.

(4) The wallet license expiration card shall bear the name of the licensee, the licensee's unique Professional Geoscientist license number, the discipline in which the individual is licensed, and the date the license will expire, unless it is renewed.

(q) Once the requirements for licensure have been satisfied and the new license and license certificate have been issued, within sixty (60) days of notification the new licensee must then:

(1) Obtain a seal and submit TBPG Seal Submission (Form X) to the TBPG; and

(2) Register as a Geoscience Firm, if appropriate, as described in §851.30 of this chapter.

(r) An applicant who is a military service member, military veteran or a military spouse is directed to TBPG rule §851.26 of this chapter for additional licensing provisions.

§851.21.Licensing Requirements-Examinations.

(a) Qualifying examinations:

(1) An applicant for the Geology discipline must pass both parts of the ASBOG® [National Association of State Boards of Geology (ASBOG®)] examination. Applicants taking the ASBOG® examinations must also abide by the rules and regulations of ASBOG®.

(2) An applicant for the Soil Science discipline must pass both parts of the Council of Soil Science Examiners (CSSE) examination. Applicants taking the CSSE examinations must also abide by the rules and regulations of CSSE.

(3) An applicant for the Geophysics discipline must pass the Texas Geophysics Examination (TGE).

(b) An applicant may request an accommodation in accordance with the Americans with Disabilities Act. Proof of disability may be required.

(c) An applicant who does not timely arrive at and complete a scheduled examination will forfeit the examination fee.

(d) Cheating on an examination is grounds for denial, suspension, or revocation of a license and/or an administrative penalty.

(e) An applicant who has passed an examination may not retake that type of examination.

(f) Exam Waiver. Applicants requesting a waiver from any examination(s) shall complete a Waiver Request (Form VI) and shall comply with §851.22 regarding Waivers and Substitutions.

(g) Examination requirements and examination procedure: A qualified individual who has not passed qualifying licensing examination(s) may access and abide by all relevant components of one of the following procedures to sit for a qualifying examination(s) in the appropriate discipline:

(1) Licensure in the discipline of geology (part I)/ASBOG® Fundamentals of Geology examination:

(A) Requirements: Completion of the education qualifications for licensure as specified in Texas Occupations Code §1002.255 and §851.25 of this chapter or currently enrolled in a course of study that meets the education requirements for licensure and within two regular semesters of completion of the qualifying course of study.

(B) Procedure:

(i) The applicant shall complete and submit an Exam Request (Form E) and any required documents to the TBPG, along with the appropriate fee by the deadline posted on the TBPG website for the examination date desired by the applicant.

(ii) The Board staff will review the application and inform the applicant of any deficiencies in the application. Upon determination that the requirements have been met, the Board staff will mail an ASBOG® Examination Candidate Request Form to the applicant.

(iii) The applicant shall submit the ASBOG® Examination Candidate Request Form and send the form, along with the examination fee to ASBOG®. A courtesy copy of the ASBOG® Candidate Request Form shall be provided to the TBPG.

(iv) The applicant shall follow all examination administration procedures and take the examination.

(v) The Board staff shall notify the applicant of the results of the examination after receiving the results from ASBOG®.

(2) Licensure in the discipline of geology (part II)/ASBOG® Practice of Geology examination:

(A) Requirements:

(i) Under application for licensure as a Professional Geoscientist with the TBPG.

(ii) Meet all other qualifications for licensure in subsection (a) of this section, and be within six months of meeting the qualifying experience requirement.

(B) Procedure:

(i) The applicant shall complete and submit both the Application for P.G. Licensure (Form A), in accordance with the application procedures specified in subsection (d) of this section, along with the appropriate fee and an Exam Request (Form E) along with the appropriate fee and any required documents to the TBPG, by the deadline posted on the TBPG website for the examination date desired by the applicant.

(ii) The Board staff will review the application and inform the applicant of any deficiencies in the application. Upon determination that the requirements have been met, the Board staff will mail an ASBOG® Examination Candidate Request Form to the applicant.

(iii) The applicant shall submit the ASBOG® Examination Candidate Request Form and send the form, along with the examination fee to ASBOG®. A courtesy copy of the ASBOG® Examination Candidate Request Form shall be provided to the TBPG.

(iv) The applicant shall follow all examination administration procedures and take the examination.

(v) The Board staff shall notify the applicant of the results of the examination after receiving the results from ASBOG®.

(3) Licensure in the discipline of geophysics/TGE:

(A) Requirements:

(i) Under application for licensure as a Professional Geoscientist with the TBPG and meet all qualifications for licensure in subsection (a) of this section, with the exception of the examination requirement; or

(ii) Under application for certification as a Geoscientist-in-Training with the TBPG and meet all qualifications for certification as a Geoscientist-in-Training in §851.41 of this chapter with the exception of having passed the TGE.

(B) Procedure:

(i) The applicant shall complete and submit an Application for Professional Geoscientist (Form A), in accordance with the application procedures specified in subsection (d) of this section, along with the appropriate fee and Examination Request Form (Form E) along with the appropriate fee and any required documents to the TBPG.

(ii) The Board staff will review the application and inform the applicant of any deficiencies in the application. Upon determination that the requirements have been met, the Board staff will provide TGE scheduling and examination payment information to the applicant.

(iii) The applicant shall submit the required information, along with the examination fee to the TBPG.

(iv) The applicant shall follow all examination administration procedures and take the examination.

(v) The Board staff shall notify the applicant of the results of the examination.

(4) Licensure in the discipline of soil science/Council of Soil Science Examiners (CSSE) Fundamentals of Soil Science and Practice of Soil Science Examinations: An applicant must meet the examination requirements of the CSSE; apply to take the required examinations directly with the CSSE and submit the required fees; follow all examination procedures of the CSSE; take and pass both parts of the examination; and follow CSSE procedures to ensure that the passing scores are forwarded to the TBPG

§851.22.Waivers and Substitutions: Policy, Procedures, and Criteria.

a) Introduction: The Texas Board of Professional Geoscientists is charged with the responsibility of issuing a license to engage in the public practice of geoscience in the state of Texas only to those individuals who meet the qualifications for licensure, as provided by Texas law. The successful completion of the required examination for the specific discipline is an essential element in the Professional Geoscientist licensure process [and, to date, the Board has found extremely limited circumstances that would cause the Board to consider waiving this requirement].

[(1)] The Texas Geoscience Practice Act (TGPA) (Texas Occupations Code, Chapter 1002[)], §1002.259) provides that "Except for the payment of required fees, the board may waive any of the requirements for licensure by a two-thirds vote of the entire board if the applicant makes a written request and shows good cause and the board determines that the applicant is otherwise qualified for a license."

(1) [(2)] An applicant for licensure as a Professional Geoscientist may request a waiver by submitting a copy of Form VI -"Request for Waiver of Licensing Requirement - Board Policy and Procedures," ["REQUEST FOR WAIVER OF LICENSING REQUIREMENT-BOARD POLICY AND PROCEDURES"], along with supporting documentation. Only an applicant for licensure may request a waiver. An applicant must have submitted a complete application, supporting documentation (such as transcripts and qualifying experience record), and applicable fees [in order] for a waiver request to be considered.

(2) [(3)] Once a request for a waiver and all relevant documents and information supporting the request have been received, subject to scheduling logistics, the request will be placed on the next available meeting of the TBPG's Application Review and Continuing Education Committee.

(b) Guidance Policy: The following policy was developed by the TBPG Board and is intended to be guidance for the Application Review and Continuing Education Committee and the Board in consideration of a request for waiver. In accordance with TOC §1002.259, an approval of a waiver request requires a vote of two-thirds [2/3] of the TBPG Appointed Board (6 affirmative votes), regardless of the number of Board members in attendance. A request for the substitution of experience for education (provided by TOC §1002.255(b)) requires a simple majority vote of a quorum of the TBPG Appointed Board to be approved.

(c) TBPG's Application Review and [And] Continuing Education Committee Review: TBPG's Application Review and Continuing Education Committee will review the request and supporting documentation and recommend to the full TBPG Board to grant [whether] or not [to] grant the requested waiver. An applicant should provide a written justification, along with supporting documentation. An applicant may also appear before the Committee and the full Board to provide testimony to support the request. All requests the Committee recommends for approval will be scheduled for review by the full Board. Requests the Committee does not recommend for approval will not be submitted to the full Board [board] for review, unless the applicant requests review by the full Board.

(d) TBPG's Board Initial Review: TBPG Appointed Board will review requests the Committee recommends for approval and supporting documentation and will determine whether or not to approve the request (grant the requested waiver). An applicant whose request for a waiver or substitution was denied and who believes that there is additional information that was not available to the Board when it reviewed the request, may submit additional information to staff regarding the current application, along with a written request that the Board reconsider the request. If staff determines that new information has been submitted that may be relevant to the Board's review of an application/request, then staff will schedule the application/waiver request for reconsideration. In the review of a request to reconsider its decision on an application/waiver request, because new information has been submitted, the Board will first determine by a simple majority vote whether to reconsider the application/waiver request, based on whether relevant new information has been submitted. If the Board determines [were to determine] by vote that the new information warrants reconsideration of an application/waiver request, the Board will [would then] reconsider the waiver request, including all of the new information available at that time. An applicant may appear before the Board and present information related to the request. The Board will reconsider its decision on a waiver request only once.

(e) Examination Waiver Requirements and Criteria.

(1) For TBPG's Appointed Board to waive an examination, an applicant must:

(A) Meet all other qualifications for licensure (qualifying work experience, education, documentation relating to criminal, disciplinary, and civil litigation history);

(B) Meet the criteria in the policy for the specific examination that is the subject of the waiver request; and

(C) Have not failed the examination that is the subject of the waiver request.

(2) Work experience an applicant submits pursuant to the following examination waiver policies must meet the criteria for qualifying work experience under TBPG rule §851.23 regarding qualifying experience record.

(3) ASBOG® Fundamentals of Geology Examination Waiver. An applicant must have acquired one of the following combinations of education and work experience:

(A) B.S. and 15 years qualifying work experience;

(B) M.S. and 13 years qualifying work experience; [and]

(C) Ph.D. and 10 years qualifying work experience.

(4) ASBOG® Practice of Geology Examination Waiver. An applicant must meet minimum criteria in [Minimum Criteria (a person may qualify for a waiver by meeting] either ["]Generalized["] Practice Experience or ["]Specialized["] Practice Experience. [):]

(A) Generalized practice experience (must meet all four criteria):

(i) Twenty (20) years of geosciences work experience;

(ii) Ten (10) years of supervisory experience (three or more individuals under supervision);

(iii) Coursework in six of the eight following ASBOG® task domains:

(I) Field geology;

(II) Mineralogy, petrology, and geochemistry;

(III) Sedimentology, stratigraphy, and paleontology [palentology];

(IV) Geomorphology, surficial processes, and quaternary geology;

(V) Structure, tectonics, and seismology;

(VI) Hydrogeology;

(VII) Engineering geology; [and]

(VIII) Economic geology and energy resources.

(iv) Demonstrate the ability to plan and conduct geosciences investigations considering public health, safety, and welfare [human health and safety].

(B) Specialized practice experience: The applicant demonstrates twenty years or more of specialized work history in only one or two of the ASBOG® task domains. One factor TBPG will consider is whether the examination is irrelevant or largely beyond the scope of the applicant's specialized experience and the applicant's intended field of practice.

(5) Council of Soil Science Examination (CSSE) - Fundamentals of Soil Science Waiver. An applicant must have acquired one of the following combinations of education and work experience:

(A) B.S. and 15 years qualified work experience;

(B) M.S. and 13 years of qualified work experience; and

(C) Ph.D. and 10 years of qualified work experience.

(6) Council of Soil Science Examination (CSSE) - Professional Practice examination. An applicant must meet minimum criteria in either Generalized practice experience or Specialized practice experience:[. No waiver is available.]

(A) Generalized practice experience (must meet all four criteria):

(i) Twenty (20) years of soil science work experience;

(ii) Ten (10) years of supervisory experience;

(iii) Coursework in six of the eight following CSSE Professional Practice Performance Objective (PPPO) domains:

(I) Soil chemistry;

(II) Soil mineralogy;

(III) Soil fertility and nutrient management;

(IV) Soil physics;

(V) Soil genesis and classification;

(VI) Soil morphology;

(VII) Soil biology and soil ecology; and

(VIII) Soil and land use management.

(iv) Demonstrate the ability to plan and conduct soil science investigations considering human health and safety.

(B) Specialized practice experience: The applicant demonstrates twenty years or more of specialized work history in only one or two of the CSSE PPPO domains. One factor TBPG will consider is whether the examination is irrelevant or largely beyond the scope of the applicant's specialized experience and the applicant's intended field of practice.

(7) Texas Geophysics Examination (TGE). No Waiver is available.

(f) Substitution of Work Experience for Educational Requirements. Before the Appointed Board considers an application for substitution of work experience for an education requirement, the applicant seeking approval of the substitution must meet all of the following minimum criteria:

(1) The applicant must pass, within three (3) attempts, the appropriate qualifying licensing examination (or a substantially similar examination), depending on the discipline in which the applicant seeks to be licensed, as follows:

(A) Geology discipline: both the Fundamentals and Practice of Geology examinations administered by ASBOG® [National Association of State Boards of Geology (ASBOG®)];

(B) Geophysics discipline: the Texas Geophysics Examination (TGE); or

(C) Soil Science discipline: both the Fundamentals and Practice examinations administered by the Council of Soil Science Examiners (CSSE);

(2) The applicant must have at least 15 years of qualifying work experience;

(3) The applicant must demonstrate the following:

(A) Ability to work with others;

(B) Ability to apply scientific methods;

(C) Ability to solve problems;

(D) Honest and ethical behavior;

(E) Ability to communicate effectively; and

(F) Relevant continuing education activities that advance knowledge throughout the applicant's professional career.

(4) The applicant is highly encouraged to appear before the Application Review and Continuing Education Committee for presentation of qualifications.

(g) Waiver of Education Requirement - Generally. Before the Appointed Board considers an application for education waiver, the applicant seeking a waiver of the education requirement must demonstrate mastery of a minimum required knowledge base in geoscience by meeting the following criteria:

(1) The applicant must demonstrate both of the following:

(A) A four-year degree in a field of basic or applied science that includes at least 15 hours of courses in geosciences from an accredited institution of higher education or the equivalent of a total of at least 15 hours of courses in geoscience from an accredited institution of higher education and/or other educational sources, as determined by the Appointed Board;

(B) An established record of continuing education and workshop participation in geoscience fields; and

(C) The Appointed Board may also determine that an individual applicant has satisfactorily completed other equivalent educational requirements after reviewing the applicant's educational credentials.

(2) The applicant must have at least eight years of qualifying geoscience work experience;

(3) The applicant must pass the appropriate qualifying examination, depending on the discipline in which the applicant seeks to be licensed, as follows:

(A) Geology discipline: both the Fundamentals and Practice examinations administered by ASBOG® [National Association of State Boards of Geology (ASBOG®)];

(B) Geophysics discipline: the Texas Geophysics Examination (TGE); or

(C) Soil Science discipline: both the Fundamentals and Practice examinations administered by the Council of Soil Science Examiners (CSSE).

(h) Education Waiver for License in Geology Discipline - Fundamentals. An individual who plans to apply for licensure as a Professional Geoscientist in the discipline of geology who does not fully meet the education requirement for licensure may take the ASBOG® Fundamentals of Geology examination as long as the applicant:

(1) Has submitted any other necessary forms, documents, and fees; and

(2) Has acknowledged that the Appointed Board must approve an education waiver request or approve the substitution of experience for education before the applicant may be licensed as a Professional Geoscientist and that the Appointed Board will not consider an education waiver or a request to substitute experience for education until after both the ASBOG® Fundamentals of Geology and Practice of Geology examinations have been passed.

(i) Education Waiver for License in Geology Discipline - Practice. An applicant for licensure as a Professional Geoscientist in the discipline of geology who does not fully meet the education requirement for licensure may take the ASBOG® Practice of Geology examination as long as the applicant:

(1) Meets or is within six months of meeting the qualifying experience requirement for licensure;

(2) Submits the qualifying work experience claimed (or has verified qualifying work experience claimed through an alternate means, as provided by TBPG rules);

(3) Has submitted a request for an education waiver or a substitution of experience for education;

(4) Has submitted any other necessary forms, documents, and fees; and

(5) Has acknowledged that the Appointed Board must approve the education waiver request or a request to substitute experience for education before the applicant may be licensed as a Professional Geoscientist and that the Appointed Board will not consider an education waiver or a request for substitution of experience for education until after both the ASBOG® Fundamentals of Geology and Practice of Geology examinations have been passed.

(j) Education Waiver for License in Geophysics Discipline. An applicant for licensure as a Professional Geoscientist in the discipline of geophysics who does not fully meet the education requirement for licensure may take the Texas Geophysics Examination as long as the applicant:

(1) Meets or is within six months of meeting the qualifying experience requirement for licensure;

(2) Submits the qualifying work experience claimed (or has verified qualifying work experience claimed through an alternate means, as provided by TBPG rules);

(3) Has submitted a request for an education waiver or a substitution of experience for education;

(4) Has submitted any other necessary forms, documents, and fees; and

(5) Has acknowledged that the Appointed Board must approve the education waiver request or a request to substitute experience for education before the applicant may be licensed as a Professional Geoscientist and that the Appointed Board will not consider an education waiver or a request for substitution of experience for education until after the Texas Geophysics Examination has been passed.

§851.28.Professional Geoscientist License Renewal and Reinstatement.

(a) The Board staff will mail or e-mail a renewal notice to the last recorded address of each licensee, at least sixty (60) days prior to the date the license is about to expire. Regardless of whether the renewal notice is received, it is the sole responsibility of the licensee to pay the required renewal fee together with any applicable penalty at the time of payment. A licensee may renew a current license up to sixty (60) days in advance of its expiration. An expired license may be renewed within three years of the license expiration date.

(b) Upon the first renewal of a license, the licensure period will be prorated so that the new expiration date will be the last day of the licensee's birth month. The prorated renewal period will be for a minimum of four months and a maximum of fifteen months. Every subsequent expiration date shall be set for one year past the previous renewal date.

(c) A late penalty fee of $50 will be charged for a complete renewal application and fee received or postmarked sixty-one (61) days after the licensee's expiration date.

(d) The Appointed Board may refuse to renew a license if the licensee is the subject of a lawsuit regarding his/her practice of geoscience or is found censurable for a violation of TBPG laws or rules that would warrant such disciplinary action under §851.157 of this chapter.

(e) A license that has been expired for sixty (60) days or less may be renewed by submitting a P.G. Renewal Application (Form B) and the annual renewal fee to the TBPG. The renewal fee for a license that is renewed within sixty (60) days of expiration is the fee that was in place at the time the license expired. The licensee must also submit a signed Statement of Affirmation (Form VII) indicating whether the licensee practiced as a P.G. when their license was expired. Information regarding unlicensed non-exempt public geoscience practice received under this section shall be referred to the enforcement division for appropriate action that could include the initiation of a complaint by the Board staff.

(f) A license that has been expired for more than sixty (60) days and less than ten months from the license expiration date may be renewed by submitting to the TBPG a P.G. Renewal Application (Form B), the annual renewal fee, and the late penalty fee. The renewal fee for a license that is renewed for more than sixty (60) days and less than ten months of expiration is the fee that was in place at the time the license expired. The licensee must also submit a signed Statement of Affirmation (Form VII) indicating whether the licensee practiced as a P.G. when their license was expired. Information regarding unlicensed non-exempt public geoscience practice received under this section shall be referred to the enforcement division for appropriate action that could include the initiation of a complaint by the Board staff.

(g) A license that has expired for ten months or more but less than three years after the license expiration date may be renewed by submitting to the TBPG a P.G. Renewal Application (Form B), the annual renewal fee for each year missed plus the current year's renewal fee, and the late penalty fee. The licensee must also submit a signed Statement of Affirmation (Form VII), indicating whether the licensee practiced as a P.G. when the license was expired. If an applicant for renewal who has met the requirements for renewal has practiced as a P.G. with the license expired, the license shall be renewed. Information regarding unlicensed practice received under this section shall be referred to the enforcement division for appropriate action that could include the initiation of a complaint by the Board staff.

(h) A license that is allowed to expire for a period of three years after the license expiration date is permanently expired and may not be renewed. The former licensee may re-apply for a new license as provided by the Act and applicable TBPG rules and will have to meet all licensure requirements in said Act and rules at the time of re-application.

(i) As per §1002.403 of the Act, the Appointed Board may suspend or revoke a license as disciplinary action against a licensee who is found censurable for a violation of the Act or rules.

(1) A license that has been suspended can be reinstated by the Board staff only if the suspended licensee complies with all conditions of the suspension, which may include payment of fines, continuing education requirements, participation in a peer review program or any other disciplinary action outlined in the Board Order that suspended the license.

(2) A license that has been revoked can be re-instated only if, by a majority vote, the Appointed Board approves reinstatement, given the applicant:

(A) Re-applies and submits all required application materials and fees;

(B) Successfully completes an examination in the required discipline of geoscience being sought for reinstatement if the applicant has not previously passed said examination; and

(C) Provides evidence to demonstrate competency and that future non-compliance with the statute and rules of the TBPG will not occur.

(j) Pursuant to Texas Occupations Code §55.002, a licensee 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 licensee provides adequate documentation, including copies of orders, to establish to the satisfaction of the Executive Director that the licensee failed to renew in a timely manner because the licensee was serving on active duty in the United States armed forces outside of Texas.

(k) The application fee is non-refundable.

§851.29.Endorsement and Reciprocal Licensure.

(a) Endorsement.

(1) Endorsement is the process whereby TBPG, based on review of evidence of having completed a requirement for licensure for an equivalent license in another jurisdiction, determines that the applicant has met a requirement for licensure as a Professional Geoscientist.

(2) An applicant for a Professional Geoscientist license who is currently or has been licensed or registered in the last ten years to practice a discipline of geoscience in Texas or another United States jurisdiction (state, commonwealth, or territory, including the District of Columbia) or another country may be eligible to demonstrate having met all or some of the qualifications for licensure through endorsement.

(3) The Board staff will only consider documentation provided to the TBPG directly from a licensing authority that has issued a license to the applicant. It is the responsibility of the applicant to ensure that the licensing authority provides information to the TBPG and pays any associated costs.

(4) For [In order for] the Board staff to consider evidence supporting the endorsement of a licensing qualification, the applicant must ensure that his or her licensing authority provides:

(A) Verification that the license is current or was held in the past ten years from the date of application; and

(B) Verification of the specific requirements that were met [in order] to become licensed.

(5) Verification may be in the form of:

(A) A document signed by an authorized agent of the jurisdiction indicating the specific qualifications that were met [in order] to become licensed; and/or

(B) Copies of specific documents that were submitted to the licensing authority to document having met a specific requirement.

(6) The TBPG may accept, deny or grant partial credit for requirements completed in a different jurisdiction.

(b) Reciprocal Licensure.

(1) Licensure by reciprocity agreement.

(A) Licensure by reciprocity agreement is the process whereby an applicant for licensure as a Professional Geoscientist in Texas who is currently licensed as a Professional Geoscientist (or equivalent license) in another United States jurisdiction (state, commonwealth or territory, including the District of Columbia) or another country becomes licensed in Texas and the process whereby an applicant currently licensed as a Professional Geoscientist in Texas applying for licensure as a Professional Geoscientist (or equivalent license) in the other jurisdiction becomes licensed in the other jurisdiction under the terms of a formal reciprocity agreement between the two jurisdictions.

(B) An applicant who holds a current license in a jurisdiction with which the TBPG has a reciprocity agreement may apply for licensure under the terms of the specific reciprocity agreement between the two jurisdictions.

(C) The TBPG shall maintain a list of each jurisdiction in which the requirements and qualifications for licensure or registration are comparable to those established in this state and with which a reciprocity agreement exists.

(2) Licensure by similar examination. An individual who is licensed or registered to practice a discipline of geoscience in another United States jurisdiction (state, commonwealth, or territory, including the District of Columbia) or another country who has applied for licensure as a Professional Geoscientist under this subsection may meet the licensing examination requirement by submitting proof of passage of examination(s) that is/are substantially similar to the applicable examination(s) as specified in §851.21 of this chapter.

(3) Licensure by recognition of licensed experience in another jurisdiction. An applicant for a Professional Geoscientist license who is currently licensed or registered to practice a discipline of geoscience in another United States jurisdiction (state, commonwealth, or territory, including the District of Columbia) or another country who was licensed without examination, i.e. "grandfathered"[, with regard to a licensing examination or who was licensed based on a licensing examination that is not recognized as substantially similar to the current licensing examination required for licensure under paragraph (2) of this subsection] shall be deemed to have met the examination requirement upon verification of the following:

(A) Verification of a valid licensure in the other jurisdiction. The applicant requesting licensure under this subsection must be in good standing with the jurisdiction in which that individual holds their current license as a professional geologist or geoscientist;

(B) Verification of at least five (5) years of responsible professional geoscience work experience since the date of their initial licensure;

(C) Verification that licensure was maintained continuously (including sequential licensure, if a license was held in more than one jurisdiction) during the five (5) years prior to application with the TBPG;

(D) Verification of having met the education requirement for licensure; and

(E) Verification that no complaint is pending against the applicant, that no complaint against the applicant has been substantiated, and no disciplinary action has ever been taken against the applicant.

(4) The applicant seeking licensure under this subsection shall be responsible for contacting the jurisdiction(s) in which the applicant is currently licensed and all jurisdictions in which the applicant has ever been licensed and cause to have verification of information in subparagraphs (A) - (E) of paragraph (3) of this subsection submitted to TBPG.

§851.30.Firm Registration.

(a) Registration required. Unless an exemption applies, as outlined in Texas Occupations Code §1002.351(b), a firm [or corporation] may engage in the public practice of geoscience only if the firm is currently registered with the TBPG; and

(1) The geoscience services are performed by, or under the supervision of, a Professional Geoscientist who is in responsible charge of the work and who signs and seals all geoscientific reports, documents, and other records as required by this chapter; or

(2) The business of the firm includes the public practice of geoscience as determined by TBPG rule, and a principal of the firm or an officer or director of the corporation is a Professional Geoscientist and has overall supervision and control of the geoscience services performed in this state. As provided in §851.10(23) [§851.10(24)] of this chapter, the term Geoscience Firm (Firm) [firm] includes a sole practitioner registered with TBPG as a Geoscience Firm, a [sole proprietor registered as a Geoscience Firm,] co-partnership, corporation, partnership, limited liability company, joint stock association, or other business organization that is registered with the TBPG as a Geoscience Firm. For the purposes of this section, the term "public" includes, but is not limited to, political subdivisions of the state, business entities, and individuals. This section does not apply to an engineering firm that performs service or work that is both engineering and geoscience.

(b) Unless registered by the TBPG or exempt from registration under Texas Occupations Code §1002.351 or elsewhere in this section, an individual or firm may not represent to the public that the individual or firm is a Professional Geoscientist or is able to perform geoscience services or prepare a geoscientific report, document, or other record that requires the signature and seal of a license holder under Texas Occupations Code §1002.263(b).

(c) A currently licensed P.G. who offers services as a sole practitioner--either unincorporated or incorporated-- [an unincorporated sole proprietor] is exempt from the firm registration requirements in [under] this section provided that the sole practitioner does not employ, contract or subcontract with another person (full-time or part-time) to perform geoscience work for the sole practitioner. A P.G. who is exempt from the firm registration requirements under this section and who offers services under an assumed name must report the assumed name to the TBPG. A P.G. who is otherwise exempt from the firm registration requirements under this section may choose to register as a Geoscience Firm and pay the current Geoscience Firm registration fee.

(d) Registration requirements. To [In order to] be eligible to register as a Geoscience Firm, the firm must:

[(1) Affirm and demonstrate that the firm is an unincorporated sole-proprietorship or another business entity that offers or performs work that includes the public practice of geoscience;]

(1) [(2)] Identify Authorized Official of a Firm who shall be responsible for submitting the application for the initial registration of the Firm [firm] with the TBPG; ensuring that the Firm [firm] maintains compliance with the requirements of registration; ensuring that the Firm [firm] renews its registration status as long as the Firm [firm] offers or provides professional geoscience services; ensuring that each geoscientist in the firm's employment who performs or supervises geoscience work maintains a current P.G. license [that the geoscientist is a currently licensed P.G.]; and communicating with the TBPG regarding any other necessary matter;

(2) [(3)] Operate under a business model such that:

(A) The geoscience services are performed by, or under the supervision of, a licensed Professional Geoscientist who is in responsible charge of the work and who ensures that the Geoscience Firm [firm] complies with all laws, codes, rules, and standards applicable to the public practice of geoscience and who signs and seals all geoscientific reports, documents, and other records as required by this chapter and ensures that all geoscientific reports, documents, and other records are signed and sealed by a licensed Professional Geoscientist; or

(B) The principal business of the Geoscience Firm [firm] is the public practice of geoscience as determined by TBPG rule and a principal of the Geoscience Firm [firm] or an officer or director of the corporation is a licensed Professional Geoscientist and has overall supervision and control of the geoscience services the Geoscience Firm performs [performed] in this state;

(3) [(4)] Identify the firm's business model and the Professional Geoscientist who fulfills the role of the licensed Professional Geoscientist in paragraph (2) [(3)] of this subsection;

[(5) Unless the firm is an unincorporated sole-proprietorship, a firm seeking registration with the TBPG must register the firm with the Office of the Secretary of State (SOS) and obtain a certificate of authority. If the firm operates under a name other than that which is filed with the SOS, an Assumed Name Certificate must be filed with the County Clerk. A firm's SOS certificate of authority number and all Assumed Name Certificate instrument numbers must be provided to the TBPG upon initial application. If the firm is a sole-proprietorship and the firm operates under a name that does not include the last name of the individual sole proprietor, the firm shall file an Assumed Name Certificate with the County Clerk;]

(4) [(6)] Submit a Firm Registration Application (Form C), in accordance to the procedures outlined in subsection (e) of this section;

(5) [(7)] Upon initial application, affirm that the licensed Professional Geoscientist performing or supervising the geoscience services for the firm [a Geoscience Firm] is an employee, or affirm that the applicant is a sole proprietor who is a P.G. with no employees. A Geoscience Firm shall provide evidence of employment status upon request of the Board staff or an Appointed Board Member.

(e) Firm Registration Application Process.

(1) The Authorized Official of a firm shall complete and submit, along with the required application fee, the form furnished by the TBPG that [which] includes, but is not limited to, the following information listed in subparagraphs (A) - (F) [(E)] of this paragraph:

(A) The name, address, and phone number of the firm offering to engage or engaging in the practice of professional geoscience for the public in Texas;

(B) The name, position, address, and phone numbers of each officer or director;

(C) The name, address and current active Texas Professional Geoscientist license number of each employee performing geoscience services for the public in Texas on behalf of the firm;

(D) The name, location, and phone numbers of each subsidiary or branch office offering to engage or engaging in the practice of professional geoscience for the public in Texas, if any;

(E) The federal employer identification number (EIN) for the firm, unless the firm is an unincorporated sole-practitioner; and

(F) [(E)] A signed statement attesting to the correctness and completeness of the application.

(2) After receiving [Upon receipt of] all of the required materials and fees, and after the firm has [having] satisfied the requirements in this section, TBPG will register the firm and will assign to the firm [the firm shall be registered and] a unique Geoscience Firm registration number [shall be assigned to the firm registration]. The new firm registration shall expire at the end of the calendar month occurring one year after the firm registration is issued.

(3) An application is active for one year after the date that it is filed with the TBPG. An application expires on the one-year anniversary of the date it was filed with TBPG. [After one year an application expires.]

(4) Obtaining or attempting to obtain a firm registration by fraud or false misrepresentation is grounds for an administrative sanction and/or penalty.

(5) An application is [Applications are] not reviewed until the application and fee have been received in the TBPG office. TBPG will notify an applicant [Applicants are initially notified] of any deficiencies in the application.

(6) The applicant [Applicants] should respond, within forty-five (45) days, to a deficiency notice it receives from TBPG and should correct deficiencies within that time, if possible [within forty-five (45) days from the date of notification for applicants to correct deficiencies. If an applicant does not respond to a deficiency notice or does not ensure that necessary documents are provided to the TBPG office, the application will expire, as scheduled, one year after the date it became active.

(f) The initial certificate of registration shall be valid for a period of one year from the date it is issued, plus any days remaining through the end of that month. A renewed firm registration is valid for a period of one year from the expiration date of the firm registration being renewed.

(g) A Geoscience Firm's completed and approved registration is the legal authority granted the holder to actively offer or practice professional geoscience upon meeting the requirements as set out in the Act and TBPG Rules. When a firm registration is issued, a firm registration wall certificate, the first firm registration certificate expiration card, and the first portable firm registration expiration card is provided to the new Geoscience Firm. The firm registration wall certificate shall bear the name of the Geoscience Firm [firm], the firm's unique Geoscience Firm registration number, and the date the firm registration was originally issued. The firm registration wall certificate is not valid proof of current registration as a firm, unless it is accompanied by the firm registration certificate expiration card and the date on the firm registration certificate card is not expired. The firm registration certificate expiration card shall bear the name of the firm, the firm's unique firm registration license number, and the date the firm registration will expire, unless it is renewed. The portable firm registration expiration card shall bear the name of the firm, the [firm's] unique Geoscience Firm registration number, and the date the registration will expire, unless it is renewed.

(h) At least sixty (60) days in advance of the date of the expiration, the Board staff shall notify each Geoscience Firm of the date of the expiration and the amount of the fee that shall be required for its annual renewal. The registration may be renewed by completing the renewal application and paying the annual registration renewal fee set by the Appointed Board. It is the sole responsibility of the Geoscience Firm to pay the required renewal fee prior to the expiration date, regardless of whether the renewal notice is received.

(i) A certificate of registration which has been expired for less than one (1) year may be renewed by completing a Firm Registration Renewal Application (Form D), along with an affirmation signed by the Authorized Official of a Geoscience Firm indicating whether professional geoscience services were offered, pending, or performed for the public in Texas when the Firm's [firm's ] registration was expired, and payment of a $50 late renewal penalty. If a Geoscience Firm [firm] under application for late Firm [firm] registration renewal has met the requirements for renewal and has indicated that the geoscience services were offered, pending, or performed for the public in Texas while the Firm's [firm's] registration was expired, the Firm's [firm's] registration shall be renewed. An application for late renewal of a firm registration will not be rejected solely on the basis that the firm engaged in geoscience activity while the license was expired. Information regarding unregistered geoscience practice received under this section shall be referred to the enforcement division for appropriate action that could include the initiation of a complaint by the Board staff. A Firm [firm] registration that has been expired for more than one year is permanently expired and may not be renewed; a new application is required.

§851.31.Temporary P.G. License and Temporary Firm Registration.

(a) Temporary P.G. License. The TBPG may issue a temporary license to an applicant as described in §1002.258(a) of the Act.

(b) Temporary Firm Registration.

(1) The Board may issue a temporary license to a firm that is licensed or registered in another state or foreign country and wishes to engage temporarily in the public practice of geoscience in this state and that does not have an established place of business in this state.

(2) An applicant for a temporary firm registration must:

(A) Apply to the Board for a temporary firm registration;

(B) Provide proof of firm licensure or registration in another state or foreign country;

(C) Pay the appropriate fee listed in §851.80

(D) Include in the application the name and P.G. license number of the Professional Geoscientist licensed in Texas who will take Responsible Charge of the firm's geoscience work;

(E) Affirm and acknowledge that all signed and sealed work products must include the seal of the firm for the non-Texas jurisdiction in which the firm is licensed or registered, the temporary Texas firm registration number, and the expiration date of the temporary registration; and

(F) Affirm and acknowledge that the firm must submit or deliver the work product on or before the date the temporary registration expires.

(c) A temporary firm registration issued under subsection (b) of this section expires on the 90th day after the date of issuance.

§851.32.Continuing Education Program.

(a) Each licensee 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 a discipline of geoscience or other related technical elective of the discipline.

(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 licensee's field of practice.

(c) Every P.G. licensee is required to obtain 15 continuing education hours (PDH units) during a standard renewal period year (one year). The continuing education requirement for a license that is renewed for a period less than one year per §851.28(b) of this chapter shall be prorated.

(d) A minimum of 1 PDH per renewal period must be in the area of professional ethics, roles and responsibilities of Professional Geoscientists, or review of the Texas Geoscientist Practice Act and TBPG rules.

(e) If a licensee exceeds the annual requirement in any renewal period, a maximum of 30 PDH units may be carried forward into the subsequent renewal periods.

(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) - (4) of this subsection.

(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; or

(C) Serving in other official positions.

(8) Patents issued.

(9) Engaging in self-directed course work.

(10) Software programs published.

(g) All activities described in subsection (f) of this section shall be relevant to the practice of a discipline of geoscience and may include technical, ethical, or managerial content.

(h) The conversion of other units of credit to PDH units is as follows and subject to subsection (g) of this section:

(1) 1 College or unit semester hour--15 PDH.

(2) 1 College or unit quarter hour--10 PDH.

(3) 1 Continuing Education Unit (CEU)--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 course study (Not to exceed 5 PDH)--1 PDH.

(6) Each published paper or article--10 PDH and book--45 PDH.

(7) Active participation, as defined in subsection (f)(7) of this section, in professional or technical society, association, agency, or organization (Not to exceed 5 PDH per year)--1 PDH.

(8) Each patent issued--15 PDH.

(9) Each software program published--15 PDH.

(10) Teaching or instructing as described in subsection (f)(5) of this section--3 times the PDH credit earned.

(i) Determination of Credit:

(1) The Appointed Board shall be the final authority with respect to whether a course or activity meets the requirements of this chapter.

(2) The Board staff shall not pre-approve or endorse any CEP activities. It is the responsibility of each licensee to use his/her best professional judgment by reading and utilizing the rules and regulations to determine whether all PDH credits claimed and activities being considered meet the continuing education requirement. However, a course provider may contact the Board staff for an opinion for whether or not a course or technical presentation would meet the 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 course work 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 course work is the responsibility of the licensee.

(6) Credit determination for activities described in subsection (h)(6) of this section is the responsibility of the licensee.

(7) Credit for activity described in subsection (h)(7) of this section requires that a licensee 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, as defined in subsection (f)(5) of this section, is valid for teaching a course or seminar for the first time only.

(j) The licensee 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, receipts, attendance roster, or other documents supporting evidence of attendance.

(k) The licensee must submit CEP certification on the log and a list of each activity, date, and hours claimed that satisfy the CEP requirement for that renewal year when audited. A percentage of the licenses will be randomly audited each year.

(l) CEP records for each licensee must be maintained for a period of three years by the licensee.

(m) CEP records for each licensee are subject to audit by the Board staff.

(1) Copies must be furnished, if requested, to the Board staff for audit verification purposes.

(2) If upon auditing a licensee, the Board staff finds that the activities cited do not fall within the bounds of educational, technical, ethical, or professional management activities related to the practice of geoscience, the Board staff shall determine that the continuing education audit was not passed and refer the issue to the Enforcement Coordinator for appropriate action, which may include opening a complaint against the licensee for potential violations.

(n) A licensee may be exempt from the professional development educational requirements for a specific renewal period or periods for one of the following reasons listed in paragraphs (1) - (4) of this subsection:

(1) New licensees that were licensed by passage of any part of the required licensing examinations shall be exempt for their first renewal period.

(2) A licensee 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) A licensee employed outside the United States, its possessions and territories, actively engaged in the practice of geoscience for a period of time exceeding three hundred (300) consecutive days in a year shall be exempt from obtaining the professional development hours required during that year except for five (5) hours of self-directed course work.

(4) A licensee who is impacted by a long term physical disability or illness (of the licensee or a family member or other person) may be exempt.

(5) Supporting documentation must be furnished to the TBPG. The Executive Director shall review circumstances and documentation and make a decision. A licensee may appeal a decision of the Executive Director to an appropriate Committee or the full Appointed Board, as appropriate.

(o) A licensee may bring an expired license to active status by obtaining all delinquent PDH units. However, if the total number required to become current exceeds 30 PDHs, including 2 PDHs of professional ethics, roles and responsibilities of Professional Geoscientists, then 30 PDHs (including 2 PDHs of ethics) shall be the maximum number of PDHs required.

(p) Noncompliance:

(1) If a licensee 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 licensee must submit the CEP certification log and supporting records for credits claimed not later than 30 days after the Board sends [by certified mail] an audit notification and request for a log and supporting documentation to the licensee's last known address as shown by the Board's records. Failure to timely submit a CEP certification log and supporting records for credits claimed is grounds for disciplinary action.

(3) A licensee must satisfy CEP requirements. Failure to satisfy CEP requirements during the applicable period is grounds for disciplinary action.

(4) Falsely reporting that CEP requirements have been met for a renewal period is misconduct and will subject the licensee to disciplinary action.

§851.40.Geoscientist-in-Training (GIT).

(a) The GIT certification is intended for individuals who wish to express the intent to become a Professional Geoscientist while they are gaining qualifying geoscience work experience. Individuals who meet the educational requirements of §1002.255(a)(2)(A) of the Act and have successfully passed an examination as specified in §851.21 of this chapter are eligible to apply for GIT certification. This certification does not entitle an individual to practice as a licensed Professional Geoscientist.

(b) Upon accruing 5 years of post graduate geoscience work experience, individuals who are GIT certified and in good standing with the TBPG may apply for licensure as a Professional Geoscientist by submitting the following:

(1) TBPG Application for P.G. Licensure (Form A);

(2) The application fee as detailed in §851.80 of this chapter;

(3) The required evidence of qualifying work experience as described in §851.23 of this chapter; and

(4) Proof of having passed one of the following discipline specific examinations:

(A) ASBOG® [National Association of State Boards of Geology (ASBOG®)] Practice of Geology;

(B) Council of Soil Science Examiners (CSSE) Soil Science Practice Examination; or

(C) Texas Geophysics Examination.

§851.43.GIT Certification Period and Renewal.

(a) An initial GIT certification is valid for one year and may be renewed annually for a period of up to eight years. Renewals after the eighth year of certification will be granted at the discretion of the Appointed Board.

(b) A GIT certificate expires at the end of the month one year from the date of issuance, and can be renewed annually if the individual:

(1) Submits a GIT Certification Renewal Application (Form J) and pays the fee established by the Appointed Board;

(2) Accumulates eight or more Professional Development Hours (PDH) as described in §851.32 of this chapter throughout the prior certification year to include one hour of ethics training; and

(3) Remains in good standing with the TBPG.

(c) A GIT is exempt from the continuing education requirement during the first renewal period. The continuing education requirement must be met in subsequent renewals. [Upon the first renewal of a GIT certification, a GIT is exempt from the continuing education requirement.]

§851.85.Contingent Emergency/Disaster Response Actions.

(a) In the event of a declared emergency or disaster, the Executive Director may implement one or more temporary measures, as provided in this section, if the following conditions exist:

(1) The Governor of the State of Texas declares a disaster under Government Code, §418.014, or if the Executive Director determines that there is an emergency affecting the public health, safety, and welfare [health, safety, or welfare of the public]; and

(2) the Executive Director, in consultation with the TBPG Board Chairman, determines that enacting available temporary measures is necessary in the specified disaster or emergency area.

(b) Emergency Response Actions.

(1) Expiration dates for some or all license types may be extended. TBPG may extend the expiration date of a license as a Professional Geoscientist, a certification as a Geoscientist-in-Training, or a registration for a Geoscience Firm.

(2) Temporary suspension of certain fees. TBPG may temporarily suspend [waive] the regular fees for duplicate license certificates, duplicate wall or wallet license expiration cards, or certain license verifications during the period of time that TBPG deems appropriate to address the emergency or disaster.

(3) Continuing education requirements for the renewal of a license or certification may be temporarily suspended or deadlines extended.

(4) The issuance of an emergency license as a Professional Geoscientist, valid for one year and is not renewable. To be eligible for an emergency license as a Professional Geoscientist under this section, an applicant must:

(A) submit a completed application on the appropriate TBPG form;

(B) provide proof of licensure in good standing as a Professional Geoscientist or Professional Geologist in another U.S. state jurisdiction;

(C) follow all of the laws and rules applicable to the non-exempt public practice of geoscience in Texas, including the registration of a Geoscience Firm; and

(D) pay the application and one-year license fee for the license for which the applicant has applied and any other applicable fee.

(c) The Executive Director, in consultation with the TBPG Board Chairman, may implement all or some contingent emergency response actions available under this section, depending on the circumstances and overall needs of the State of Texas and TBPG's licensees.

(d) The Executive Director may take other reasonable administrative actions warranted by the circumstances including, but not limited to, suspension of certain complaint investigations and complaint case adjudication actions, extension of deadlines in certain Board orders, suspension of certain continuing education audits, or expedition of certain Professional Geoscientist license or Geoscience Firm applications.

(e) The Executive Director shall ensure that notifications of emergency measures taken are communicated to all members of the Appointed Board, all affected license holders, and the general public, to the extent that it is feasible and as soon as it is feasible. The Executive Director may use various methods including, but not limited to, posting notices to the agency website and sending e-mails, letters, or postcards.

(f) Actions taken by the Executive Director under this section are effective only until the next regular or special meeting of the Appointed Board. The Appointed Board shall review all actions taken by the Executive Director under this section at the next regular or special meeting of the Appointed Board. The Appointed Board shall take action to either continue the actions taken by the Executive Director under this section for a specified amount of time, with or without modifications; or to discontinue the actions taken by the Executive Director under this section.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 7, 2021.

TRD-202103980

Rene Truan

Executive Director

Texas Board of Professional Geoscientists

Earliest possible date of adoption: November 21, 2021

For further information, please call: (512) 230-5576


22 TAC §851.83

STATUTORY AUTHORITY

These sections are proposed under the Texas Geoscience Practice Act, Occupations Code §1002.151, which authorizes the Board to adopt and enforce all rules consistent with the Act as necessary for the performance of its duties; §1002.255, which authorizes the Board to establish license eligibility requirements; §1002.259, which authorizes the Board to waive certain requirements for licensure; §1002.261, which authorizes the Board to issue a license to applicants who meet the requirements of licensure; §1002.351, which authorizes the Board to regulate the public practice of geoscience by a firm or corporation; and §1002.352, which authorizes the Board to establish criteria for geoscientists-in-training.

These sections affect the Texas Geoscience Practice Act, Occupations Code §§1002.151, 1002.154, 1002.253, 1002.254, 1002.255, 1002.256, 1002.257, 1002.258, 1002.259, 1002.261, 1002.262, 1002.301, 1002.302, 1002.351, and 1002.352.

§851.83.Certain Licensees Temporarily Exempt from Continuing Education Requirements.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 7, 2021.

TRD-202103981

Rene Truan

Executive Director

Texas Board of Professional Geoscientists

Earliest possible date of adoption: November 21, 2021

For further information, please call: (512) 230-5576


SUBCHAPTER C. CODE OF PROFESSIONAL CONDUCT

22 TAC §§851.101 - 851.106, 851.108, 851.109, 851.111 - 851.113

STATUTORY AUTHORITY

This section is proposed under the Texas Geoscience Practice Act, Occupations Code §1002.151, which authorizes the Board to adopt and enforce all rules and regulations consistent with the Act as necessary for the performance of its duties, and §1005.153, which authorizes the Board to adopt a code of professional conduct that is binding on all license holders under this chapter.

This section affects the Texas Geoscience Practice Act, Occupations Code §§1002.151and 1002.153.

§851.101.General.

(a) This subchapter is promulgated pursuant to the Act, Texas Occupations Code (TOC), §1002.153, which directs the Appointed Board to adopt a code of professional conduct that is binding on all license holders under the Act and provides that the Appointed Board may enforce the code by imposing sanctions, as provided by the Act or this chapter. Except as otherwise noted, this subchapter applies only to situations which are related to the practice of professional geoscience.

(b) Any person who holds a Professional Geoscientist (P.G.) license, is a Geoscience Firm, or who holds a certificate as a Geoscientist-in-Training (GIT) is responsible for understanding and complying with the Act, rules adopted by the Appointed Board, and any other law or rule pertaining to the practice of professional geoscience. Any person under application for, currently holding, or eligible to renew a license, registration, or certification issued by the Texas Board of Professional Geoscientists (TBPG) is bound by the provisions of the Act and this chapter. The TBPG maintains jurisdiction over a license, registration, or certification it issues as long as the license, registration, or certification is current or renewable.

(c) A P.G. [Professional Geoscientist], a [Geoscience] Firm, or a person who holds a certificate as a GIT [Geoscientist-in-Training] having knowledge of any alleged violation of the Act and/or TBPG rules shall cooperate with the TBPG in furnishing such information as may be required.

(d) A P.G. [Professional Geoscientist], a [Geoscience] Firm, or a person who holds a certificate as a GIT [Geoscientist-in-Training] shall timely answer all inquiries concerning matters under the jurisdiction of the TBPG and shall fully comply with final decisions and orders of the Appointed Board. Failure to comply with these matters shall constitute a separate offense of misconduct subject to the penalties provided under the Act or this Chapter.

(e) The Appointed Board may take disciplinary actions as provided in §1002.403 of the Act for reasons stated in §1002.402 of the Act.

(f) This subchapter is not intended to suggest or define standards of care in civil actions against P.G.s [Professional Geoscientists], GIT [Geoscientists-in-Training], or [Geoscience] Firms involving their professional conduct.

(g) A P.G. [Professional Geoscientist] or a [Geoscience] Firm may donate professional geoscience services to charitable causes but must adhere to all provisions of the TBPG Act and [the] rules for [of the TBPG in the provision of] all geoscience services rendered, regardless of whether the P.G. [Professional Geoscientist ] or [Geoscience] Firm is paid for the geoscience services.

(h) A P.G. [Professional Geoscientist] or a GIT [Geoscientist-in-Training] who is presenting geoscientific fact testimony, including geoscientific interpretation, analysis, or conclusions, or recommending geoscientific work before any public body or court of law, whether under sworn oath or not, must adhere to all provisions of the Act and the rules of the TBPG in the provision of all professional geoscience services rendered, regardless of whether the P.G. [Professional Geoscientist ] is paid for the service [or is providing such service on behalf of themselves or some other organization for which their services are provided at no cost].

§851.102.Competence/Negligence.

(a) A Professional Geoscientist or a Geoscience Firm shall undertake to perform a professional service only when the Professional Geoscientist or Geoscience Firm, together with those whom the Professional Geoscientist or Geoscience Firm shall engage as consultants, are qualified by education and/or experience in the specific technical areas involved. During delivery of a professional service, a Professional Geoscientist or Geoscience Firm shall act with reasonable care and competence and shall apply the technical knowledge and skill, which is ordinarily applied by reasonably prudent Professional Geoscientists practicing under similar circumstances and conditions.

(b) A Professional Geoscientist shall not affix his/her signature or seal to any document dealing with subject matter in which he/she is not qualified by education and/or experience to form a reasonable judgment.

(c) A Professional Geoscientist or a Geoscience Firm shall not engage in conduct or perform professional geoscience services characterized by Gross Incompetence including [. Conduct or professional geoscience services characterized by Gross Incompetence includes] work that evidenced an inability or lack of skill or knowledge necessary to discharge the duty and responsibility required of a Professional Geoscientist or Geoscience Firm;[,] or evidenced [by] an extreme lack of knowledge of, or an inability or unwillingness to apply, the principles or skills generally expected of[,] a reasonably prudent Professional Geoscientist or Geoscience Firm.

(d) A Professional Geoscientist who has been adjudicated mentally incompetent by a court may not renew a license or engage in activities requiring a license under the Act.

§851.103.Recklessness.

(a) A Professional Geoscientist or Geoscience Firm shall not practice geoscience in any manner that [which], when measured by generally accepted geoscience standards or procedures, does or is reasonably likely to result [or does result] in the endangerment of public health, [the] safety, [health,] or welfare [of the public]. Such practice is deemed to be "reckless."

(b) "Recklessness" shall include the following practices:

(1) Conduct that indicates that the Professional Geoscientist or Geoscience Firm is aware of yet consciously disregards a substantial risk of such a nature that its disregard constitutes a significant deviation from the standard of care that a reasonably prudent Professional Geoscientist or Geoscience Firm would exercise under the circumstances;

(2) Knowing failure to exercise ordinary care and attention toward the intended result when a procedure, technique, material, or system is employed as a result of a decision made by the Professional Geoscientist or Geoscience Firm and such failure jeopardizes or has the potential to jeopardize public health, safety, or welfare; or

(3) Action which demonstrates a conscious disregard for compliance with a statute, regulation, code, ordinance, or recognized standard applicable to [the design or construction of] a particular project when such disregard jeopardizes or has the potential to jeopardize public health, safety, or welfare.

§851.104.Dishonest Practice.

(a) A Professional Geoscientist, a Geoscientist-in-Training, or Geoscience Firm shall not directly or indirectly perform an act, omit [an act] or allow an omission, make an assertion, or otherwise engage in a practice in such a manner as to:

(1) Defraud;

(2) Deceive; or

(3) Create a misleading impression.

(b) A Professional Geoscientist, a Geoscientist-in-Training, or Geoscience Firm shall not advertise publicly or individually to a client or prospective client in a manner that is false, deceptive, misleading, inaccurate, incomplete, out of context, or not verifiable.

(c) A Professional Geoscientist, a Geoscientist-in-Training, or Geoscience Firm shall not directly or indirectly solicit, offer, give, or receive anything or any service of significant value as an inducement or reward to secure any specific government-funded [government funded] geoscience services.

(d) A Professional Geoscientist, a Geoscientist-in-Training, or Geoscience Firm shall not make any false, misleading, deceptive, fraudulent or exaggerated claims or statements about the services of an individual or organization, including, but not limited to, the effectiveness of geoscience services, qualifications, or products.

(e) If a Professional Geoscientist, a Geoscientist-in-Training, or Geoscience Firm learns that any false, misleading, deceptive, fraudulent or exaggerated claims or statement about the geoscience services, qualifications or products have been made, the licensee shall take reasonable steps to correct the inappropriate claims. As appropriate, the Professional Geoscientist, a Geoscientist-in-Training, or Geoscience Firm may notify the TBPG in writing about these claims.

(f) Professional Geoscientists and Geoscience Firms shall issue statements in an objective and truthful manner. Professional Geoscientists, Geoscientist-in-Training, and Geoscience Firms must make reasonable efforts to make affected parties aware of the concerns regarding particular actions or projects, and of the public health, safety, and welfare [potential economic, environmental, and public safety] consequences of geoscientific decisions or judgments that are overruled or disregarded.

(g) A Geoscience Firm that retains or hires others to advertise or promote the firm's practice remains responsible for the statements and representations made.

(h) A Geoscience Firm shall maintain a work environment that uses standard operating procedures and quality assurance/quality control standards related to the Geoscience Firm's practice to ensure that the Geoscience Firm protects the public health, safety, and welfare [health, safety, property, and welfare of the public].

§851.105.Conflicts of Interest.

(a) If a Professional Geoscientist, a Geoscientist-in-Training, or Geoscience Firm has any business association or financial interest that [which] might reasonably appear to influence the judgment of the Professional Geoscientist, Geoscientist-in-Training, or Geoscience Firm in connection with the performance of a professional geoscience service, and thereby jeopardize an interest of a client or employer [of the Professional Geoscientist, the Geoscientist-in-Training, or Geoscience Firm], the P.G., GIT, or Firm [Professional Geoscientist, Geoscientist-in-Training, or Geoscience Firm] shall promptly inform the client or employer in writing of the circumstances of the business association or financial interest. Unless the client or employer provides written consent after full disclosure regarding the circumstances of the business association or financial interest, the Professional Geoscientist, Geoscientist-in-Training, or Geoscience Firm shall either terminate the business association or financial interest or forego the project or employment.

(b) A Professional Geoscientist, Geoscientist-in-Training, or Geoscience Firm shall not solicit or accept, directly or indirectly, any financial or other valuable consideration, material favor, or other benefit of any substantial nature, financial or otherwise, from more than one party in connection with a single project or assignment unless the circumstances are fully disclosed in writing to all parties.

(c) A Professional Geoscientist, Geoscientist-in-Training, or Geoscience Firm shall not solicit or accept, directly or indirectly, any financial or other valuable consideration, material favor, or other benefit of any substantial nature from any supplier of materials or equipment or from any contractor or any consultant in connection with any project on which the Professional Geoscientist, Geoscientist-in-Training, or Geoscience Firm is performing or has contracted to perform geoscience services.

§851.106.Responsibility to the Regulation of the Geoscience Profession and Public Protection.

(a) Professional Geoscientists, Geoscientists-in-Training, and Geoscience Firms shall be entrusted to protect the public in the practice of their profession.

(b) A Professional Geoscientist, a Geoscientist-in-Training, or Geoscience Firm shall not:

(1) Knowingly participate, directly or indirectly, in any plan, scheme, or arrangement having as its purpose the violation of any provision of the Act or the rules of the TBPG;

(2) Aid or abet, directly or indirectly:

(A) Any unlicensed person in connection with the unauthorized practice of professional geoscience;

(B) Any business entity in the practice of professional geoscience unless carried on in accordance with the Act and this chapter; or

(C) Any person or any business entity in the use of a professional seal or other professional identification so as to create the opportunity for the unauthorized practice of geoscience by any person or any business entity.

(3) Fail to exercise reasonable care or diligence to prevent his/her partners, associates, shareholders, and employees from engaging in conduct that [which], if done by a Professional Geoscientist, a Geoscientist-in-Training, or Geoscience Firm, would violate any provision of the Act or the rules of the TBPG.

(c) A Professional Geoscientist or a Geoscientist-in-Training possessing knowledge of an Applicant's qualifications for licensure shall cooperate with the TBPG by timely responding in writing to the TBPG regarding those qualifications when requested to do so by the TBPG.

(d) A Professional Geoscientist shall be responsible and accountable for the care, custody, control, and use of his/her Professional Geoscientist seal, professional signature, and other professional identification. A Professional Geoscientist whose seal has been lost, stolen, or otherwise misused shall report the loss, theft, or misuse to the TBPG immediately upon discovery of the loss, theft, or misuse. The Executive Director may invalidate the license number of the lost, stolen, or misused seal upon the request of the Professional Geoscientist if the Executive Director deems it necessary.

(e) A Professional Geoscientist, a Geoscientist-in-Training, or an Authorized Official of a Firm shall remain mindful of his/her obligation to the profession and to protect public health, safety, and welfare and shall report to the TBPG known or suspected violations of the Act or the rules of the TBPG.

(f) A Professional Geoscientist or Geoscience Firm shall keep adequate records of geoscience services provided to the public for no less than five (5) years following the completion and final delivery of the service. Adequate records shall include, but not be limited to:

(1) Documents that have been signed and sealed or would require a signature and a seal;

(2) Relevant documentation that supports geoscientific interpretations, conclusions, and recommendations;

(3) Descriptions of offered geoscience services;

(4) Billing, payment, and financial communications; and

(5) Other relevant records.

(g) Professional Geoscientists, a Geoscientists-in-Training, and Geoscience Firms must 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.

§851.108.Criminal Convictions.

(a) The TBPG [Texas Board of Professional Geologists (TBPG)] will adhere to the provisions of Texas Occupation Code (TOC) Chapter 53 regarding the review of criminal convictions and certain deferred adjudications in regard to actions taken against an Applicant for a license or a license holder as a consequence of criminal conviction or certain deferred adjudications, as specified in TOC Chapter 53.

(b) Crimes directly related to the duties and responsibilities of a Professional Geoscientist include any crime that reflects a lack of fitness for professional licensure or a disregard of the standards commonly upheld for the practice of professional geoscience, such as the following:

(1) Criminal negligence;

(2) Soliciting, offering, giving, or receiving any form of bribe;

(3) The unauthorized use of property, funds, or proprietary information belonging to a client or employer;

(4) Acts relating to the malicious acquisition, use, or dissemination of confidential information related to geoscience; and

(5) Any intentional violation as an individual or as a consenting person of any provision of the Act.

(c) Any license holder whose license has been revoked under the provisions of TOC 53 due to incarceration may apply for a new license upon release from incarceration.

§851.109.Substance Abuse.

(a) If in the course of a disciplinary proceeding, [it is found by] the Appointed Board finds that a Professional Geoscientist's abuse of alcohol or a controlled substance, as defined by the Texas Controlled Substances Act, Chapter 481, Texas Health and Safety Code, contributed to a violation of the TBPG Act or rules [Act or the rules of the TBPG], the Appointed Board may condition its disposition of the disciplinary matter on the Professional Geoscientist's completion of a rehabilitation program approved by the Department of State Health Services.

(b) A Professional Geoscientist's abuse of alcohol or a controlled substance that results in the impairment of the Professional Geoscientist's professional skill so as to cause or potentially cause a threat to the public health, safety, and welfare [property, safety, health, or welfare of the public] may be deemed "Gross Incompetency" and may be grounds for revocation or suspension of a Professional Geoscientist's license or other appropriate disciplinary actions provided by the Act.

(c) To [In order to] determine whether abuse of alcohol or a controlled substance contributed to a violation or whether the continued professional practice of a licensee is a threat to the public safety the Appointed Board may order an examination by one or more licensed health care providers authorized to provide diagnosis or treatment of substance abuse.

§851.111.Professional Geoscientists Shall Maintain Confidentiality of Clients.

(a) A Professional Geoscientist, Geoscientist-in-Training, or Geoscience Firm may reveal confidences and private information only with a fully informed client's or employer's consent, or when required by law, rule or court order; or when those confidences, if left undisclosed, would constitute a threat or potential threat to public health, safety, and welfare [the health, safety or welfare of the public].

(b) A Professional Geoscientist, Geoscientist-in-Training, or Geoscience Firm 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 another person.

(c) A Professional Geoscientist, GIT or Geoscience Firm shall exercise reasonable care to prevent unauthorized disclosure or use of private information or confidences concerning a client or employer by the Professional Geoscientist's or Geoscience Firm's employees and associates.

§851.112.Required Reports to the TBPG.

(a) A Professional Geoscientist (P.G.), Geoscientist-in-Training (GIT), or a Geoscience Firm (Firm) shall make written reports to the TBPG office of changes to any of the following within thirty (30) days of the following, as applicable:

(1) A description of and the effective date of the change;

(2) Physical or mailing address of record, electronic mail address, telephone or facsimile number, or other contact information (include P.G. license number and/or Firm number or GIT certificate number as applicable);

(3) Changes to a P.G. or GIT's employment (e.g. leaving a firm or starting employment with a new firm, etc.);

(4) Any changes in a firm's name (legal trade name or business entity name), the Authorized Official of the Firm (AOF), the firm's owners, officers, or directors, changes in operation including firm type, dissolution of the firm, branches or subsidiary offices of the firm that no longer offers to provide or is not providing professional geoscience services to the public in Texas;

(5) Professional Geoscientist(s) employed by the firm or leaving the firm;

(6) Professional Geoscientist(s) who serve as the P.G. in Responsible Charge for the firm or any branch offices;

(7) Employment status of the P.G.s of the firm;

(A) Operation including dissolution of the firm or that the firm no longer offers to provide or is not providing professional geoscience services to the public in Texas; or

(B) Operation including addition or dissolution of branch and/or subsidiary offices.

(8) Notice as provided in subsection (d) of this section shall include, as applicable, the:

(A) Full legal trade or business name entity;

(B) The firm registration number;

(C) Telephone number of the business office;

(D) Name and license number of the license holder employed by or leaving the entity;

(E) Description of the change; and

(F) Effective date of this change.

(9) A criminal conviction, other than a Class C misdemeanor traffic offense, of the licensee or Geoscientist-in-Training;

(10) The settlement of or judgment rendered in a civil or criminal lawsuit filed against the licensee or Firm relating to the P.G.'s or Firm's professional geoscience services; or

(11) Final disciplinary or enforcement actions against the P.G., GIT, or Firm taken by a licensing or certification body related to the practice of professional geoscience when known by the licensee.

(b) The information received under subsection (a) of this section may be used by the TBPG to determine whether a possible violation may have occurred.

(c) Failure to make a report as required by subsection (a) of this section is grounds for disciplinary action by the Appointed Board.

(d) A Firm that obtains a new certificate of authority from the Office of the Secretary of State or that files a new Assumed Name Certificate with the County Clerk or the Office of the Secretary of State must provide the new instrument number to the TBPG within thirty (30) days of the action.

[(a) A Professional Geoscientist, Geoscientist-in-Training, or a Geoscience Firm shall make written reports to the TBPG office within thirty (30) days of the following, as applicable:]

[(1) Any changes in a firm's name, the Authorized Official of the Firm (AOF), the firm's owners, officers, or directors, Professional Geoscientist(s) employed by the firm, Professional Geoscientist(s) who serve as the P.G. in Responsible Charge for the firm or any branch offices, communication phone number(s) of the Authorized Official of the Firm or P.G.s, and any other changes as identified in §851.152 of this chapter;]

[(2) Any changes in an individual P.G.'s or Geoscientist-in-Training's (GIT's) mailing address or other contact information and any changes in employment status with a firm (e.g. leaving or starting employment with a current firm, any new additional place(s) of employment, etc.);]

[(3) The initiation of practice as any other type of firm, corporation, partnership (whether or not the partnership is an incorporated entity), or other business entity that requires registration by the TBPG to engage in the public practice of geoscience;]

[(4) The notification in paragraphs (1) - (3) of this subsection shall include full legal trade or business name of the association or employment, physical location and mailing address of the business, status of business (corporation, assumed name, partnership, or self-employment through use of own name), legal relationship and position of responsibility within the business, telephone number of the business office, effective date of this change, and reason for this notification (changed employment or retired, firm went out of business or changed its name or location, etc.) and information regarding areas of practice within each employment or independent sole practitioner practice setting;]

[(5) A change of business phone number, an additional business phone number, or a change in the home phone number;]

[(6) A criminal conviction, other than a Class C misdemeanor traffic offense, of the licensee or Geoscientist-in-Training;]

[(7) The settlement of or judgment rendered in a civil lawsuit filed against the licensee or Geoscience Firm relating to the Professional Geoscientist's or Geoscience Firm's professional geoscience services; or]

[(8) Final disciplinary or enforcement actions against the Professional Geoscientist, Geoscientist-in-Training, or Geoscience Firm taken by a licensing or certification body related to the practice of professional geoscience when known by the licensee.]

[(b) The information received under subsection (a) of this section may be used by the TBPG to determine whether a possible violation may have occurred.]

[(c) Failure to make a report as required by subsection (a) of this section is grounds for disciplinary action by the Appointed Board.]

[(d) A Geoscience Firm shall notify the TBPG in writing no later than thirty (30) days after a change in the business entity's:]

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

[(2) Officers or directors if they are the only Professional Geoscientists of the firm;]

[(3) Employment status of the Professional Geoscientists of the firm;]

[(4) Operation including dissolution of the firm or that the firm no longer offers to provide or is not providing professional geoscience services to the public in Texas; or]

[(5) Operation including addition or dissolution of branch and/or subsidiary offices.]

[(e) Notice as provided in subsection (d) of this section 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 by or leaving the entity;]

[(5) Description of the change; and]

[(6) Effective date of this change.]

[(f) A Geoscience Firm that obtains a new certificate of authority from the Office of the Secretary of State or files a new Assumed Name Certificate with the County Clerk or the Office of the Secretary of State must provide the new instrument number to the TBPG within thirty (30) days of the action.]

§851.113.Duty to abide by Board Order and timely pay administrative penalty.

(a) All persons who are the subject of a Board order shall abide by the terms of that order. Failure to abide by the terms of a Board order is grounds for disciplinary action.

(b) All persons who are assessed an administrative penalty must pay the administrative penalty not later than the 30th day after the date the Board's order becomes final or they must timely satisfy section 1002.454(b) of the Texas Occupations Code.

(c) Failure to timely pay an administrative penalty is grounds for disciplinary action. This subsection does not apply if a person timely complies with section 1002.454(b) of the Texas Occupations Code regarding staying the enforcement of the administrative penalty at issue.

(d) The Appointed Board may deny a person's request for a license, registration or certification, or the renewal of a license, registration, or certification if the person has failed to timely pay an administrative penalty.

(e) When a person pays money to the TBPG, the TBPG may first apply that money to outstanding administrative penalties owed by that person before applying it to any other fee or cost.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 7, 2021.

TRD-202103982

Rene Truan

Executive Director

Texas Board of Professional Geoscientists

Earliest possible date of adoption: November 21, 2021

For further information, please call: (512) 230-5576


SUBCHAPTER D. COMPLIANCE AND ENFORCEMENT

22 TAC §§851.151 - 851.153, 851.156 - 851.159

STATUTORY AUTHORITY

This section is proposed under the Texas Geoscience Practice Act, Occupations Code §1002.151, which authorizes the Board to adopt and enforce all rules consistent with the Act as necessary for the performance of its duties; under 1002.154, which authorizes the Board to enforce this chapter; under 1002.202, which authorizes the Board to accept or initiate a complaint; 1002.351, which authorizes the public practice of geoscience by a firm or corporation; 1002.402, which authorizes the Board to impose appropriate sanctions; 1002.403, which authorizes the Board to take certain disciplinary actions.

This section affects the Texas Geoscience Practice Act, Occupations Code §§1002.151, 1002.154, 1002.202, 1002.351, 1002.402, 1002.403; 1002.454; and Texas Occupations Code, Chapter 53.

§851.151.General.

(a) The Appointed Board is charged with the responsibility of enforcing the Act. Through the TBPG, the Appointed Board enforces the requirement of licensure as specified in the Act, the requirement of Geoscience Firm registration as specified in the Act, and all other requirements in the Act, the Code of Professional Conduct and other TBPG rules under the authority of the Act. Unless the person is licensed by the TBPG, a person may not:

(1) Use the term "Licensed Professional Geoscientist, "[,] "Professional Geoscientist,"[,] or the initials "P.G." as part of a professional, business, or commercial identification or title; or

(2) Otherwise represent to the public that the person is qualified to:

(A) Practice as a geoscientist; or

(B) Engage in the [public] practice of geoscience for the public, including individuals, corporations, governments or courts.

(b) When the TBPG discovers or is provided information that may indicate a violation of the Act or TBPG rules, the Board staff may initiate a complaint, as provided by TOC §1002.154. A member of the public may also submit a complaint, as provided by TOC §1002.154. For [In order for] a complaint to be initiated by the agency or for information received from the public to be considered a complaint, the information initiated by Board staff or provided by the public must meet the criteria for a complaint provided in TOC §1002.202.

(c) Before the Appointed Board suspends or revokes a license, the TBPG shall provide to the Respondent a notice of the proposed action, an opportunity to show compliance, and an opportunity for a hearing.

(d) When a contested action is taken by the Appointed Board, the Respondent shall be informed of the Respondent's rights in regard to filing for judicial review, as provided in the Administrative Procedure Act (Government Code, Chapter 2001).

§851.152.Firm Compliance.

(a) Unless registered with the TBPG or exempt from Firm [firm] registration requirements under TOC §1002.351, an individual, firm, or corporation may not represent to the public that the individual, firm, or corporation is a licensed geoscientist or able to perform geoscience services or prepare a geoscientific report, document, or other record that requires the seal of a Professional Geoscientist.

[(b) A business entity or sole proprietor that offers or is engaged in the non-exempt public practice of professional geoscience in Texas must register with the TBPG pursuant to the requirements of §851.30 of this chapter.]

(b) [(c)] The Appointed Board may revoke a certificate of registration that was obtained in violation of the Act and/or TBPG rules including, but not limited to, fraudulent or misleading information submitted in the application.

(c) [(d)] A business entity or sole practitioner [sole proprietor] that is not registered with the TBPG 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 [non-exempt] public practice of geoscience by using the terms:

(1) "Professional Geoscientist;"

(2) "licensed geoscientist;"

(3) "registered geoscientist;"

(4) "licensed Professional Geoscientist;"

(5) "registered Professional Geoscientist;" or

(6) any abbreviation or variation of those terms listed in paragraphs (1) - (5) of this subsection, or directly or indirectly use or cause to be used any of those terms in combination with other words.

(d) [(e)] The Appointed Board may revoke or suspend a [Geoscience] Firm's registration, place on probation a Firm [firm] whose registration has been suspended, reprimand a Geoscience Firm, or assess an administrative penalty against a Geoscience Firm for a violation of any provision of TBPG rules or the Act by the Firm [firm] or any employee of the Firm [firm]. The Appointed Board also may take action against an Applicant pursuant to §851.110 of this chapter.

§851.153.Professional Geoscientist Compliance.

Any Professional Geoscientist 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 §851.152 of this chapter shall be subject to legal and disciplinary actions available to the Appointed Board. Professional Geoscientists shall perform or directly supervise the geoscience services of any subordinates, including GITs.

§851.156.Professional Geoscientist Seals and Geoscience Firm Identification.

(a) The purpose of the Professional Geoscientist's seal is to show that professional geoscience services were performed by a qualified licensed Professional Geoscientist and to identify the Professional Geoscientist who performed the geoscience services.

(b) The Professional Geoscientist seal shall be of the design shown in this subsection. Physical seals of two different sizes will be acceptable: a pocket seal (the size commercially designated as 1-5/8-inch seal) or desk seal (commercially designated as a two-inch seal). Computer-applied seals may be of a reduced size provided that the Professional Geoscientist's full name and license number are clearly legible. The Professional Geoscientist's name on the seal shall be the same name on the license certificate issued by the TBPG.

Figure: 22 TAC §851.156(b) (No change.)

(c) A Professional Geoscientist shall [only] seal only documents that contain geoscience services performed by or under the Professional Geoscientist's [his/her] direct supervision. Upon sealing, the Professional Geoscientist takes full professional responsibility for geoscience services that are provided through the sealed document.

(d) It shall be misconduct to knowingly sign or seal any geoscience document if its use or implementation may endanger the public health, safety, and welfare [health, safety, or welfare of the public].

(e) It shall be unlawful for a license holder whose license has been revoked, suspended, or has expired to sign or affix a seal on any document.

(f) All seals utilized by a license holder shall be capable of leaving a permanent ink or impression on the document.

(g) Electronically conveyed geoscience documents requiring a seal must contain an electronic seal and electronic signature. Such seals should conform to the design requirements set forth in this section.

(1) A Professional Geoscientist must employ reasonable security measures to make the document unalterable. The Professional Geoscientist shall maintain the security of his/her electronic seal and electronic signature. The following methods are allowed:

(A) The Professional Geoscientist may electronically copy the original hard copy of the document that bears his/her seal, original signature, and date and transmit this document in a secure electronic format.

(B) The Professional Geoscientist may create an electronic seal and electronic signature for use in transmitting geoscientific documents by making a secure electronic graphic of the Professional Geoscientist's [his/her] original seal and signature.

(2) The use of an electronically-generated signature is not allowed by changing the word processing font from a "normal text" to a signature/handwriting font.

(A) Shown below is a sample of an unauthorized electronically-generated signature using the Lucida Handwriting font.

Figure: 22 TAC §851.156(g)(2)(A) (No change.)

(B) Shown below is a sample of a digital image of a geoscientist's seal and original signature saved as a digital image (JPEG Format, for example).

Figures: 22 TAC 851.156(g)(2)(B) (No change.)

(h) Preprinting of blank forms with a Professional Geoscientist's seal is prohibited.

(i) Signature reproductions, including but not limited to, rubber stamps, decals or other replicas, and electronically-generated signatures shall not be used in lieu of the Professional Geoscientist's actual signature or a true digital graphic copy of the actual signature.

(j) A Professional Geoscientist shall take reasonable steps to ensure [insure] the security of the Professional Geoscientist's [his/her] physical or electronically-generated seals at all times. In the event of loss of a seal, the Professional Geoscientist will immediately give written notification of the facts concerning the loss to the Executive Director.

(k) Professional Geoscientists shall affix an unobscured seal, original signature, and date of signature to the originals of all documents containing the final version of any geoscience document as outlined in subsection (l) of this section before such document is released from their control.

(l) Preliminary documents released from a P.G.'s [their] control shall identify the purpose of the document, the Professional Geoscientist(s) of record and the Professional Geoscientist 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.G. 0112) on (date). It is not to be used for (Examples: construction, bidding, permit) purposes."

(m) [(l)] The Professional Geoscientist shall sign, seal, and date the original title sheet or a signature page of geoscience documents, specifications, details, calculations, or estimates, and each sheet of maps, drawings, cross sections, or other figures representing geoscientific services carried out under the supervision of the geoscientist, regardless of size or binding.

(n) All unbound geoscience documents, including but not limited to, research reports, opinions, recommendations, evaluations, addenda, and geoscience software shall bear the Professional Geoscientist's printed name, date, signature, and the designation "P.G." or other terms allowed under §1002.251 of the Act, unless the geoscience service is exempt under §1002.252 of the Texas Occupations Code. Electronic correspondence of this type shall include an electronic signature as described in subsection (f) of this section or be followed by a hard copy containing the Professional Geoscientist's printed name, date, signature, and the designation "P.G." or other terms allowed under §1002.251 of the Act.

(o) [(m)] Geoscience services performed by more than one Professional Geoscientist shall be sealed in a manner such that all geoscience can be clearly attributed to the responsible Professional Geoscientist(s) [Geoscientist or Professional Geoscientists]. When sealing plans or documents on which two or more Professional Geoscientists have worked, the seal of each Professional Geoscientist shall be placed on the plan or document with a notation describing the geoscience services done under each Professional Geoscientist's responsible charge.

(p) [(n)] Licensed employees of the state, its political subdivisions, or other public entities are responsible for sealing their original geoscience documents; however, such licensed employees engaged in review and evaluation for compliance with applicable law or regulation of documents containing geoscience services 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.

(q) [(o)] When a Professional Geoscientist 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 Professional Geoscientist; or

(2) Specified on an integral design/title/contents sheet that bears the Professional Geoscientist's seal, signature, and date with a statement authorizing its use.

(r) [(p)] Alteration of a sealed document without proper notification to the responsible Professional Geoscientist is misconduct or an offense under the Act.

(s) [(q)] A license holder is not required to use a seal for a document for which the license holder is not required to hold a license under Texas Occupations Code, Chapter 1002.

(t) [(r)] All geoscience documents released, issued, or submitted by a licensee shall clearly indicate the Geoscience Firm name and registration number by which the Professional Geoscientist is employed. If the Professional Geoscientist is employed by a local, State, or Federal Government agency or a firm that is exempt from the requirement of registration under Texas Occupations Code, Chapter 1002, Subchapter H, then only the name of the agency or firm shall be required.

(u) [(s)] TBPG also considers a document to meet the sealing requirement if a reader or user of the document can determine that the original document is complete and unaltered from that which was subsequently placed under seal.

§851.157.Complaints and Confidentiality.

(a) Who may file a complaint. A complaint may be filed with the TBPG by a member of the public, a member of the Appointed Board, or by Board staff. Also, a state agency that becomes aware of a potential violation of the Act or a rule adopted by the Appointed Board may fulfill the requirements of the Act in Texas Occupations Code, §1002.207, by filing a formal complaint with the TBPG or providing the information relating to the potential violation in writing to Board staff.

(b) How to file a complaint. Complaints should be filed with the Secretary-Treasurer of the Appointed Board at the office of the TBPG or electronically through the TBPG's website. The TBPG provides a complaint form that should be used to file a complaint.

(c) Whom complaints may be filed against. A complaint may be filed against any person or entity who: holds a Professional Geoscientist license issued by the TBPG, is a registered Geoscience Firm, or holds a certificate as a Geoscientist-in-Training issued by the TBPG. A complaint may also be filed against a person or firm that is not licensed or registered with the TBPG alleging that the person or firm has engaged in the unlicensed or unregistered public practice or offering of geoscience services in Texas.

(d) A complaint must be filed within two (2) years of the event giving rise to the complaint. The event giving rise to the complaint is an event from which a concern with geoscience work completed becomes apparent. Complaints filed after the above stated period will not be acted upon by the TBPG unless the Complainant can show good cause for the late filing.

(e) Complaints and investigations under this chapter are of two types:

(1) Complaints received from a member of the public; and

(2) Complaints and investigations that are initiated by the Board staff or an Appointed Board Member as a result of information that may indicate a violation that becomes known to the Board staff or an Appointed Board Member [and that may indicate a violation].

(f) A complaint from a member of the public must be:

(1) In writing;

(2) Sworn to by the person making the complaint; and

(3) Submitted to the authorized staff deputy to the Secretary-Treasurer or electronically through the TBPG's internet website.

(4) The Board staff shall accept a complaint regardless of whether the complaint is notarized.

(g) A complaint that is initiated by a member of the Board staff or an Appointed Board Member must be:

(1) Made in writing; and

(2) Signed by the person who became aware of information that may indicate a violation.

(h) Confidentiality.

(1) The TBPG shall maintain the confidentiality of a complaint from the time of receipt through the conclusion of the investigation of the complaint. Complaint information is not confidential after the date formal charges are filed, which is the date that a notice of alleged violation (NOV) is issued.

(2) Information submitted to the TBPG that has not been filed as a complaint, and the identity of the person who submits the information, are not confidential.

(3) Confidential information from other state agency. The TBPG maintains confidentiality or privilege of any confidential information submitted by a state agency under Texas Occupations Code, §1002.207. A state agency will inform the TBPG of the confidentiality or privilege provisions applicable to the information in accordance with procedures agreed upon between the agencies. If Board staff opens a complaint based on information it has received, the information becomes a part of the complaint record and is subject to the confidentiality provisions in Texas Occupations Code, §1002.202, in addition to any other confidentiality provisions that may apply.

(4) If a complaint is determined to be frivolous or without merit, the complaint and other information related to the complaint are confidential. The information is not subject to discovery, subpoena, or other disclosure. A complaint is considered to be frivolous if the Executive Director and investigator, with Appointed Board approval, determine that the complaint:

(A) Was made for the likely purpose of harassment; and

(B) Does not demonstrate apparent harm to any person.

§851.158.Procedures.

Procedures generally. Except for a suspension under TOC §1002.403(3), the procedures for investigation and dispensation of complaints are as follows:

(1) Staff action.

(A) Verify that the complaint meets legal requirements;

(B) Verify the identity of the complainant (if complaint is not notarized);

(C) Open complaint and set up complaint record;

(D) Review complaint for TBPG jurisdiction;

(E) Review for imminent danger to the public health, safety, or welfare;

(F) Prioritize complaint as required by TOC §1002.154;

(G) Provide acknowledgement and notification to complainant;

(H) Investigate complaint and complete confidential investigation report; and

(I) Dismiss [May dismiss], with or without advisement, complaints that are meritless, non-jurisdictional, or that do not involve a threat or potential threat to public health, safety, and welfare [public health or safety], with the exception of complaints that involve violations of the continuing education requirement.

(2) Complaint review team. Review complaint and investigation with the possible outcomes of:

(A) Recommend to the Appointed Board that the complaint be dismissed (with or without non-disciplinary advisory or warning);

(B) Refer the complaint back to staff for further investigation; or

(C) Issue notice of alleged violation-proposed finding of violation and proposed disciplinary action.

(3) Notice of alleged violation.

(A) The notice of alleged violation will state the authority of the TBPG to enforce the Act and take disciplinary action, the facts or conduct alleged to warrant disciplinary action, identify the proposed disciplinary action, provide the opportunity for an informal conference to show compliance with all requirements of law, and provide the opportunity for a contested-case hearing.

(B) The notice of alleged violation will provide three options:

(i) Accept the proposed findings and proposed disciplinary action, and waive the right to an informal conference, contested-case hearing, and judicial review, by signing and returning the enclosed proposed Board order;

(ii) Request an informal conference and a contested-case hearing; [and]

(iii) Request a contested-case hearing.

(C) Waiver and default.

(i) To proceed to issue a default order, the notice of alleged violation must state the following in capital letters in at least 12-point bold-face type: FAILURE TO TIMELY RESPOND TO THIS NOTICE BY TIMELY REQUESTING EITHER AN INFORMAL CONFERENCE AND A CONTESTED-CASE HEARING OR A CONTESTED-CASE HEARING WILL RESULT IN THE ALLEGATIONS BEING ADMITTED AS TRUE AND THE RECOMMENDED SANCTION BEING GRANTED BY DEFAULT. YOU MUST RESPOND AND REQUEST A HEARING IN WRITING WITHIN 30 DAYS OF RECEIPT OF THIS NOTICE OR YOU WAIVE YOUR RIGHT TO A HEARING.

(ii) Additionally, to proceed to issue a default order, the notice of alleged violation must also state the following: If you fail to request a hearing in writing within 30 days of receipt of this notice you will be deemed to have admitted the factual allegations in this notice, waived the opportunity to show compliance with the law, waived the right to a hearing, and waived objection to the recommended sanction.

(iii) If a person fails to file a written request for a contested-case hearing within 30 days of receipt of the notice of alleged violation, the person will be deemed to have admitted the factual allegations in the notice of alleged violation, waived the opportunity to show compliance with the law, waived the right to a hearing, and waived objection to the recommended sanction.

(iv) If a person responds and waives the right to an informal conference and a contested-case hearing or fails to file a written request for either an informal conference and a contested-case hearing or a contested-case hearing within 30 days of receipt of the notice of alleged violation, the Board shall proceed to resolve the matter on an informal basis by issuing a default order.

(D) The TBPG may serve the notice of alleged violation by sending it to the person's last known address as shown by the TBPG's records.

(E) The notice of alleged violation shall be sent by first class or certified mail to the person's last known address as shown by the TBPG's records, and in addition should also be sent to the person's email address as shown by the TBPG's records.

(4) Informal conference.

(A) The informal conference will be informal and will not follow procedures for contested cases.

(B) The informal conference panel may be composed of Board staff and Appointed Board members. The panel may limit attendance and the time allotted for the informal conference.

(C) The informal conference is an opportunity for a person to show compliance with law. The person may speak and provide documents for the panel's consideration.

(D) The informal conference panel may recommend proposed action to be taken by the Appointed Board. The proposed action may be different from that stated in the notice of alleged violation.

(5) Contested-case hearing. If a person timely and properly requests a contested-case hearing, one shall be set at the State Office of Administrative Hearings.

(6) Board order. Except for dismissals, the Appointed Board should resolve complaints by order. The Board may accept or reject any proposed order. If a proposed order is rejected, the Appointed Board may among other things dismiss the complaint, direct Board staff to modify an order and propose the modified order for later consideration, or direct that the matter be set for a contested-case hearing.

(7) All disciplinary actions shall be permanently recorded. Except for private reprimands, all disciplinary actions shall be placed on the TBPG's website and made available upon request as public information.

§851.159.Sanctions.

(a) The Appointed Board may impose appropriate sanctions against a Professional Geoscientist, Geoscientist-in-Training, or Geoscience Firm, as applicable, for:

(1) The practice of fraud or deceit in obtaining a Professional Geoscientist license, Geoscientist-in-Training certification, or Geoscience Firm registration;

(2) Incompetence, misconduct, fraud, gross negligence, or repeated incidents of negligence in the public practice of geoscience;

(3) Conviction of a license holder or GIT of a crime involving moral turpitude or a felony;

(4) The imposition of an administrative or civil penalty or a criminal fine, or imprisonment or probation instead of a fine, for a misdemeanor relating to or arising out of the public practice of geoscience;

(5) The issuance of a cease and desist order or a similar sanction relating to, or arising out of, the public practice of geoscience;

(6) Using the seal of another license holder, or using or allowing the use of the license holder's seal on geoscientific work not performed by or under the supervision of the license holder;

(7) Aiding or abetting a person or firm in a violation of this chapter;

(8) The revocation or suspension of a license or firm registration, the denial of renewal of a license or registration, or other disciplinary action taken by a state agency, Board of registration, or similar licensing agency for Professional Geoscientists, Geoscientists-in-Training, Geoscience Firms, or a profession or occupation related to the public practice of geoscience;

(9) Practicing or offering to practice geoscience or representing to the public that the person or the person's firm or corporation is licensed or registered or qualified to practice geoscience if the person or firm is not licensed or registered under the Act or the person's firm or corporation does not employ a Professional Geoscientist as required under the Act; [or]

(10) Violating the Act, a rule adopted under the Act, including the Code of Professional Conduct, or a comparable provision of the laws or rules regulating the practice of geoscience in another state or country.

(b) The Appointed Board may take the following disciplinary actions:

(1) Refuse to issue or renew a license;

(2) Permanently revoke a license;

(3) Suspend a license for a specified time, not to exceed three years, to take effect immediately notwithstanding an appeal if the Appointed Board determines that the license holder's continued practice constitutes an imminent danger to the public health, safety, or welfare;

(4) Issue a public or private reprimand to an applicant, a license holder, or an individual, or firm[, or corporation ] practicing geoscience under this chapter;

(5) Impose limitations, conditions, or restrictions on the practice of an applicant, a license holder, or an individual, or firm[, or corporation] practicing geoscience under this chapter;

(6) Require that a license holder participate in a peer review program under rules adopted by the Appointed Board;

(7) Require that a license holder obtain remedial education and training prescribed by the Appointed Board;

(8) Impose probation on a license holder requiring regular reporting to the Appointed Board;

(9) Require restitution, in whole or in part, of compensation or fees earned by a license holder, individual, or firm[, or corporation] practicing geoscience under the Act;

(10) Impose an appropriate administrative penalty as provided by TOC Chapter 1002, Subchapter J for a violation of this chapter or a rule adopted under this chapter on a license holder or a person who is not licensed and is not exempt from licensure under the Act; [or]

(11) Issue a cease and desist order.

(c) Allegations and disciplinary actions will be set forth in the final order and the severity of the disciplinary action will be based on the factors listed in paragraphs (1) - (9) of this subsection:

(1) The seriousness of the acts or omissions;

(2) The number of prior disciplinary actions taken against the respondent;

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

(4) Efforts or resistance to correct the violations;

(5) Any hazard to the public health, safety, and welfare [health, safety, property or welfare of the public];

(6) Any actual damage, physical or otherwise, caused by the violations;

(7) Any economic benefit gained through the violations;

(8) The economic harm to property or the environment caused by the violation; [or]

(9) Any other matters impacting justice and public welfare.

(d) The Appointed Board shall consider the following factors in determining the amount of an administrative penalty assessed by the Appointed Board:

(1) An administrative penalty shall not exceed the dollar amount specified in the Act for each violation. Each day a violation continues is a separate violation for the purposes of imposing a penalty.

(2) The amount of an administrative penalty shall be based on:

(A) The seriousness of the violation, including:

(i) The nature, circumstances, extent, and gravity of any prohibited acts; and

(ii) The hazard or potential hazard created to the public health, safety, and welfare [health, safety, or economic welfare of the public];

(B) The economic harm to property or the environment caused by the violation;

(C) The history of previous violations;

(D) The disciplinary action or amount of administrative penalty necessary to deter a future violation;

(E) Efforts or resistance to correct the violation; and

(F) Any other matter that justice may require.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 7, 2021.

TRD-202103983

Rene Truan

Executive Director

Texas Board of Professional Geoscientists

Earliest possible date of adoption: November 21, 2021

For further information, please call: (512) 230-5576


22 TAC §851.154

STATUTORY AUTHORITY

This section is proposed under the Texas Geoscience Practice Act, Occupations Code §1002.151, which authorizes the Board to adopt and enforce all rules consistent with the Act as necessary for the performance of its duties; under 1002.154, which authorizes the Board to enforce this chapter; under 1002.202, which authorizes the Board to accept or initiate a complaint; 1002.351, which authorizes the public practice of geoscience by a firm or corporation; 1002.402, which authorizes the Board to impose appropriate sanctions; 1002.403, which authorizes the Board to take certain disciplinary actions.

This section affects the Texas Geoscience Practice Act, Occupations Code §§1002.151, 1002.154, 1002.202, 1002.351, 1002.402, 1002.403; 1002.454; and Texas Occupations Code, Chapter 53.

§851.154.Loan Default Ground for Nonrenewal of License.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 7, 2021.

TRD-202103984

Rene Truan

Executive Director

Texas Board of Professional Geoscientists

Earliest possible date of adoption: November 21, 2021

For further information, please call: (512) 230-5576


SUBCHAPTER E. HEARINGS--CONTESTED CASES AND JUDICIAL REVIEW

22 TAC §§851.203, 851.204, 851.220

STATUTORY AUTHORITY

This section is proposed under the Texas Geoscience Practice Act, Occupations Code §1002.151, which authorizes the Board to adopt and enforce all rules consistent with the Act as necessary for the performance of its duties, and the regulation of the practice of geoscience in this state; 1002.404, which authorizes a person's right to a hearing.

This section affects the Texas Geoscience Practice Act, Occupations Code §§1002.151 and1002.404.

§851.203.Defaults.

(a) The Appointed Board may serve the notice of hearing on the respondent by sending it to his or her last known address as shown by the TBPG's records.

(b) Default. If the party who does not have the burden of proof fails to appear at a contested-case hearing at the State Office of Administrative Hearings, the administrative law judge may issue a default proposal for decision that can be adopted by the Appointed Board.

(c) Failure to issue default proposal for decision. If the administrative law judge grants a default but does not issue a default proposal for decision and instead issues an order dismissing the case or remanding the case back to TBPG and returning the file to the TBPG for informal disposition on a default basis in accordance with section 2001.056 of the Texas Government Code, the allegations in the notice of hearing will be deemed as true and proven, and the Appointed Board will issue a final order imposing a sanction requested in the notice of hearing.

(d) Failure to prosecute. If an applicant for licensure fails to appear at a contested case hearing at the State Office of Administrative Hearings, the administrative law judge must dismiss the case for want of prosecution, any relevant application will be withdrawn, and the TBPG may not consider a subsequent application from the party until the first anniversary of the date of dismissal of the case at the State Office of Administrative Hearings. If the administrative law judge dismisses the case and returns the file to the Appointed Board for informal disposition on a default basis in accordance with §2001.056 of the Texas Government Code, the Appointed Board will issue a final order referring to this rule and advising the applicant that the application was withdrawn and the applicant may reapply for licensure one year after the date the Appointed Board signs the final order.

(e) Applicants for licensure bear the burden to prove fitness for licensure.

(f) Contesting a final order issued following a default or dismissal for failure to prosecute. In the event that the respondent or applicant wishes to contest a final order issued following a default or dismissal for failure to prosecute, the respondent or applicant must timely file a motion for rehearing as provided by Chapter 2001 of the Texas Government Code, and the motion for rehearing must show the following:

(1) the default was neither intentional nor the result of conscious indifference;

(2) the respondent or applicant has a meritorious case or defense;

(3) a new hearing will not harm [the] TBPG; and

(4) the motion for rehearing must be supported by affidavits and documentary evidence of the above and show a prima facie case in the movant's favor.

§851.204.Costs of Administrative Hearings.

(a) If a person files a suit for judicial review of an agency decision in a contested case, the TBPG shall request that the contested-case hearing be transcribed.

(b) Costs. The costs of transcribing the contested-case hearing and preparing the record for appeal in a suit for judicial review shall be paid by the party who appeals to district court.

(c) Documentation of costs. Documentation supporting the costs of transcribing the testimony in a contested-case proceeding and preparing the record for appeal shall be included in the administrative record or filed with the court.

(d) Recovery as court costs. The costs of transcribing the testimony in a contested-case proceeding and preparing the record for appeal in a suit for judicial review may be recovered as court costs.

(e) Additionally and alternatively, failure to timely pay the cost of transcribing the contested-case hearing is grounds for disciplinary action, and payment of the cost of transcribing the contested-case hearing is due no later than 60 days after the TBPG sends a request for payment and copy of the documentation of costs to the respondent's last known address as shown by the TBPG's records or to the respondent's attorney, if any.

(f) The TBPG may deny a person's request to issue or renew a license, registration, or certification if the person has failed to pay the cost of transcribing the contested-case hearing.

(g) When a person pays money to the TBPG, the TBPG may first apply that money to outstanding transcript costs owed by that person before applying it to any other fee or cost.

§851.220.Judicial Review Procedures.

(a) A timely motion for rehearing is a prerequisite to judicial review and must be filed in accordance with chapter 2001 of the Texas Government Code.

(b) The motion for rehearing may be filed by mail to the Board's mailing address, in person at the Board's street address, or by fax to the Board's fax number.

(c) Standard for rehearing following a default dismissal. In the event that the respondent wishes to contest a final order issued following a default, the respondent must timely file a motion for rehearing as provided by Chapter 2001 of the Texas Government Code, and the motion for rehearing must show the following:

(1) the default was neither intentional nor the result of conscious indifference;

(2) the respondent has a meritorious defense;

(3) a new hearing will not harm TBPG [the Board]; and

(4) the motion for rehearing must be supported by affidavits and documentary evidence of the above and show a prima facie case for a meritorious defense.

(d) Standard for rehearing following a dismissal for failure to prosecute. In the event that the applicant wishes to contest a final order issued following a dismissal for failure to prosecute, the respondent must timely file a motion for rehearing as provided by Chapter 2001 of the Texas Government Code, and the motion for rehearing must show the following:

(1) the dismissal for failure to prosecute was neither intentional nor the result of conscious indifference;

(2) the applicant has a meritorious application;

(3) a new hearing will not harm TBPG [the Board]; and

(4) the motion for rehearing must be supported by affidavits and documentary evidence of the above and show a prima facie case for a meritorious application.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 7, 2021.

TRD-202103985

Rene Truan

Executive Director

Texas Board of Professional Geoscientists

Earliest possible date of adoption: November 21, 2021

For further information, please call: (512) 230-5576