CHAPTER 1958. MOLD ASSESSORS AND REMEDIATORS
OCCUPATIONS CODE
TITLE 12. PRACTICES AND TRADES RELATED TO WATER, HEALTH, AND
SAFETY
SUBTITLE B. PRACTICES RELATED TO HEALTH AND SAFETY
CHAPTER 1958. MOLD ASSESSORS AND REMEDIATORS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 1958.001. DEFINITIONS. In this chapter:
(1) "Board" means the Texas Board of Health.
(2) "Commissioner" means the commissioner of public health.
(3) "Department" means the Texas Department of Health.
(4) "License" means a license issued under this chapter.
(5) "Mold" means any living or dead fungi or related products or
parts, including spores, hyphae, and mycotoxins.
(6) "Mold assessment" means:
(A) an inspection, investigation, or survey of a dwelling or
other structure to provide the owner or occupant with information
regarding the presence, identification, or evaluation of mold;
(B) the development of a mold management plan or remediation
protocol; or
(C) the collection or analysis of a mold sample.
(7) "Mold remediation" means the removal, cleaning, sanitizing,
demolition, or other treatment, including preventive activities,
of mold or mold-contaminated matter that was not purposely grown
at that location.
Added by Acts 2003, 78th Leg., ch. 205, Sec. 1, eff. Sept. 1,
2003.
Sec. 1958.002. SCOPE OF AUTHORITY. (a) This chapter applies
only to the regulation of mold-related activities that affect
indoor air quality, including a mold-related activity performed
by a third party for compensation at a property owned or operated
by a governmental entity.
(b) This chapter does not apply to:
(1) the following activities when not conducted for the purpose
of mold assessment or mold remediation:
(A) routine cleaning;
(B) the diagnosis, repair, cleaning, or replacement of plumbing,
heating, ventilation, air conditioning, electrical, or air duct
systems or appliances;
(C) commercial or residential real estate inspections; and
(D) the incidental discovery or emergency containment of
potential mold contamination during the conduct or performance of
services listed in this subsection;
(2) the repair, replacement, or cleaning of construction
materials during the building phase of the construction of a
structure;
(3) the standard performance of custodial activities for,
preventive maintenance of, and the routine assessment of property
owned or operated by a governmental entity; or
(4) a pest control inspection conducted by a person regulated
under Chapter 1951.
Added by Acts 2003, 78th Leg., ch. 205, Sec. 1, eff. Sept. 1,
2003.
SUBCHAPTER B. POWERS AND DUTIES
Sec. 1958.051. GENERAL POWERS AND DUTIES OF DEPARTMENT; SCOPE OF
AUTHORITY. The department shall administer this chapter to
protect the public from the adverse health effects of mold.
Added by Acts 2003, 78th Leg., ch. 205, Sec. 1, eff. Sept. 1,
2003.
Sec. 1958.052. PUBLIC EDUCATION PROGRAM. (a) The department
shall conduct a statewide education and outreach program
regarding the importance of, and ways to improve, air quality in
buildings, including the importance of, and the ways to
recognize, prevent, control, and mitigate, mold occurrence and
other indoor air quality factors that adversely affect human
health.
(b) The program may include:
(1) the development and distribution of information to the
public concerning indoor air quality and mold;
(2) educational programs;
(3) informational or educational exhibits; and
(4) any other methods of education or communication that the
department considers appropriate.
(c) The department may contract with governmental entities or
other persons to provide the program.
Added by Acts 2003, 78th Leg., ch. 205, Sec. 1, eff. Sept. 1,
2003.
Sec. 1958.053. GENERAL RULEMAKING AUTHORITY. The board shall
adopt substantive and procedural rules as necessary or desirable
for the board, department, and commissioner to discharge their
powers and duties under this chapter.
Added by Acts 2003, 78th Leg., ch. 205, Sec. 1, eff. Sept. 1,
2003.
Sec. 1958.054. RULES REGARDING PERFORMANCE STANDARDS AND WORK
PRACTICES. The board by rule shall establish minimum performance
standards and work practices for conducting a mold assessment or
mold remediation in this state.
Added by Acts 2003, 78th Leg., ch. 205, Sec. 1, eff. Sept. 1,
2003.
Sec. 1958.055. FEES. (a) The board shall establish reasonable
and necessary fees to administer this chapter, including fees for
licenses, registrations, and examinations. The board shall set
the fees in an amount sufficient to recover the costs of
administering this chapter, not to exceed the caps established
under Subsection (b).
(b) A fee set under this section may not exceed:
(1) $400 for a license issued to an individual;
(2) $750 for a license issued to a person who is not an
individual; and
(3) $60 for a registration issued to an employee of a license
holder.
Added by Acts 2003, 78th Leg., ch. 205, Sec. 1, eff. Sept. 1,
2003.
Sec. 1958.056. INSPECTIONS. (a) The department shall conduct
inspections as necessary to ensure compliance with this chapter.
(b) The board shall adopt rules regarding compliance
investigations.
Added by Acts 2003, 78th Leg., ch. 205, Sec. 1, eff. Sept. 1,
2003.
Sec. 1958.057. COMPLAINTS. The department shall investigate any
complaint regarding mold-related activities.
Added by Acts 2003, 78th Leg., ch. 205, Sec. 1, eff. Sept. 1,
2003.
Sec. 1958.058. SAFETY STANDARDS. The board may develop and
establish mold safety standards for license holders if
appropriate scientific information exists regarding the effect of
mold.
Added by Acts 2003, 78th Leg., ch. 205, Sec. 1, eff. Sept. 1,
2003.
Sec. 1958.059. CODE OF ETHICS. The board by rule shall adopt a
code of ethics for license holders that promotes the education of
mold assessors and mold remediators concerning the ethical,
legal, and business principles that should govern their conduct.
Added by Acts 2003, 78th Leg., ch. 205, Sec. 1, eff. Sept. 1,
2003.
SUBCHAPTER C. LICENSE AND REGISTRATION REQUIREMENTS
Sec. 1958.101. LICENSE REQUIRED; RULES. (a) A person may not
engage in:
(1) mold assessment unless the person holds a mold assessment
license; or
(2) mold remediation unless the person holds a mold remediation
license.
(b) The board shall adopt rules regarding:
(1) the scope of mold-related work for which a license is
required, including the supervision of employees or other persons
by license holders; and
(2) renewal requirements for a license issued under this
chapter.
Added by Acts 2003, 78th Leg., ch. 205, Sec. 1, eff. Sept. 1,
2003.
Sec. 1958.102. EXEMPTIONS. (a) An owner or tenant, or a
managing agent or employee of an owner or tenant, is not required
to be licensed under this chapter to perform mold assessment or
mold remediation on property owned or leased by the owner or
tenant. This exemption does not apply:
(1) if the managing agent or employee engages in the business of
performing mold assessment or mold remediation for the public;
(2) if the mold remediation is performed in an area in which the
mold contamination affects a total surface area of 25 contiguous
square feet or more; or
(3) to a person who is exempt under Subsection (e).
(b) An employee of a license holder is not required to be
licensed under this chapter to perform mold assessment or mold
remediation while supervised by the license holder, as provided
by rules adopted under Section 1958.101.
(c) A person is not required to be licensed under this chapter
to perform mold remediation in an area in which the mold
contamination affects a total surface area for the project of
less than 25 contiguous square feet.
(d) A person is not required to be licensed under this chapter
to perform mold assessment or mold remediation in a one-family or
two-family dwelling that the person constructed or improved if
the person performs the mold assessment or mold remediation at
the same time the person performs the construction or improvement
or at the same time the person performs repair work on the
construction or improvement. This exemption does not apply if the
person engages in the business of performing mold assessment or
mold remediation for the public.
(e) An owner, or a managing agent or employee of an owner, is
not required to be licensed under this chapter to perform mold
assessment or mold remediation on a residential property owned by
that person with fewer than 10 dwelling units. This exemption
does not apply if the managing agent or employee engages in the
business of performing mold assessment or mold remediation for
the public.
Added by Acts 2003, 78th Leg., ch. 205, Sec. 1, eff. Sept. 1,
2003.
Sec. 1958.103. REGISTRATION REQUIREMENTS FOR EMPLOYEES. The
board may adopt rules to require the registration of employees
supervised by license holders.
Added by Acts 2003, 78th Leg., ch. 205, Sec. 1, eff. Sept. 1,
2003.
Sec. 1958.104. RULES REGARDING LICENSE APPLICATION. The board
shall adopt rules regarding a license application. The board
shall adopt rules that establish minimum requirements for a
license, including:
(1) the type of license;
(2) the term of the license;
(3) the qualifications for the license, including any previous
training required under Section 1958.106;
(4) renewal requirements for the license, including ongoing
continuing education required under Section 1958.106; and
(5) liability insurance requirements for the license.
Added by Acts 2003, 78th Leg., ch. 205, Sec. 1, eff. Sept. 1,
2003.
Sec. 1958.105. EXAMINATION. (a) The department may require
that an applicant for a license pass a competency examination to
qualify for the license.
(b) If the department requires an examination, the applicant
must pass the examination with a score of 70 percent or more.
Added by Acts 2003, 78th Leg., ch. 205, Sec. 1, eff. Sept. 1,
2003.
Amended by:
Acts 2005, 79th Leg., Ch.
642, Sec. 1, eff. September 1, 2005.
Sec. 1958.106. TRAINING; CONTINUING EDUCATION. (a) The board
shall adopt rules regarding training required under this chapter
and continuing education required for a license holder under this
chapter.
(b) The rules may include requirements regarding training and
continuing education providers, including rules establishing:
(1) accreditation by the department;
(2) curriculum requirements; and
(3) qualifications.
Added by Acts 2003, 78th Leg., ch. 205, Sec. 1, eff. Sept. 1,
2003.
Sec. 1958.107. RECIPROCITY. The board may adopt rules that
facilitate reciprocity and communication with other states that
have a similar licensing program.
Added by Acts 2003, 78th Leg., ch. 205, Sec. 1, eff. Sept. 1,
2003.
SUBCHAPTER D. PRACTICE BY LICENSE HOLDER
Sec. 1958.151. SCOPE OF WORK ANALYSIS. (a) A license holder
who intends to perform mold assessment on a mold remediation
project shall prepare a work analysis for the project. The
license holder shall provide the analysis to the client before
the mold remediation begins.
(b) The work analysis must specify:
(1) the rooms or areas where the work will be performed;
(2) the quantities of materials to be removed or cleaned at the
project;
(3) the proposed methods for each type of remediation in each
type of area in the project; and
(4) the proposed clearance criteria for each type of remediation
in each type of area in the project.
Added by Acts 2003, 78th Leg., ch. 205, Sec. 1, eff. Sept. 1,
2003.
Sec. 1958.152. REMEDIATION WORK PLAN. (a) A license holder who
intends to perform mold remediation shall prepare a work plan
providing instructions for the remediation efforts to be
performed for the mold remediation project. The license holder
shall provide the work plan to the client before the mold
remediation begins.
(b) The license holder shall maintain a copy of the work plan at
the job site where the remediation is being performed.
Added by Acts 2003, 78th Leg., ch. 205, Sec. 1, eff. Sept. 1,
2003.
Sec. 1958.153. NOTICE OF PROJECT. (a) Except as provided by
Subsection (b), not later than the fifth day before the date on
which a license holder starts mold remediation at a property, the
license holder shall notify the department in writing about the
project.
(b) In an emergency, notice to the department under Subsection
(a) may be made verbally but must be made not later than the next
business day after the license holder identifies the emergency.
For purposes of this subsection, an emergency exists if a delay
in mold remediation services in response to a water damage
occurrence would increase mold contamination.
(c) The board shall adopt rules to implement this section,
including rules:
(1) describing the information that must be provided in the
notice; and
(2) authorizing verbal notification to the department in an
emergency.
Added by Acts 2003, 78th Leg., ch. 205, Sec. 1, eff. Sept. 1,
2003.
Sec. 1958.154. CERTIFICATE OF MOLD REMEDIATION; DUTY OF PROPERTY
OWNER. (a) Not later than the 10th day after the date on which
a license holder completes mold remediation at a property, the
license holder shall provide a certificate of mold remediation to
the property owner. The certificate must include a statement by a
mold assessment license holder that, based on visual, procedural,
and analytical evaluation, the mold contamination identified for
the project has been remediated as outlined in the mold
management plan or remediation protocol. If the mold assessment
license holder determines that the underlying cause of the mold
has been remediated so that it is reasonably certain that the
mold will not return from that remediated cause, the mold
assessment license holder shall indicate on the certificate that
the underlying cause of the mold has been remediated.
(b) If a property owner sells property, the property owner shall
provide to the buyer a copy of each certificate issued for the
property under this section during the five years preceding the
date the property owner sells the property.
(c) The board shall adopt rules to implement this section, other
than rules described by Subsection (d).
(d) The commissioner of insurance shall adopt rules describing
the information that must be provided in the certificate of mold
remediation. In adopting the rules, the commissioner shall
design the certificate as necessary to comply with any
requirements imposed under Subchapter G, Chapter 544, Insurance
Code.
Added by Acts 2003, 78th Leg., ch. 205, Sec. 1, eff. Sept. 1,
2003.
Amended by:
Acts 2005, 79th Leg., Ch.
149, Sec. 2, eff. May 24, 2005.
Acts 2005, 79th Leg., Ch.
728, Sec. 11.153, eff. September 1, 2005.
Sec. 1958.155. CONFLICT OF INTEREST; DISCLOSURE REQUIRED. (a)
A license holder may not perform both mold assessment and mold
remediation on the same project.
(b) A person may not own an interest in both the entity that
performs assessment services and an entity that performs
remediation services on the same project.
(c) A license holder who is not an individual shall disclose to
the department the name, address, and occupation of each person
that has an ownership interest in the license holder. The license
holder shall report any changes in ownership to the department.
The board shall adopt rules to implement this section, including
rules regarding the form of the disclosure and the time required
to make disclosures or to report a change in ownership.
(d) This section does not apply to a license holder employed by
a school district working on a project for that school district.
Added by Acts 2003, 78th Leg., ch. 205, Sec. 1, eff. Sept. 1,
2003.
Amended by:
Acts 2005, 79th Leg., Ch.
126, Sec. 1, eff. May 24, 2005.
Sec. 1958.156. RECORD REQUIREMENTS; DUTIES OF MOLD REMEDIATORS.
(a) A mold remediator shall maintain a record regarding each
mold remediation performed for at least three years after the
date of completion of the mold remediation on a property.
(b) The mold remediator shall make the record available for
inspection by the department or any law enforcement entity.
(c) The record must contain:
(1) photographs of the scene of the mold remediation taken
before and after the remediation;
(2) the written contract between the mold remediator or any
other party regarding the mold remediation;
(3) all invoices issued regarding the mold remediation; and
(4) any other material required by the department.
(d) Not later than one week after completion of a mold
remediation, the mold remediator license holder shall provide the
property owner with copies of all photographs required by this
section.
Added by Acts 2003, 78th Leg., ch. 205, Sec. 1, eff. Sept. 1,
2003.
Sec. 1958.157. OFFICE LOCATION. A license holder shall maintain
an office in this state.
Added by Acts 2003, 78th Leg., ch. 205, Sec. 1, eff. Sept. 1,
2003.
SUBCHAPTER E. DISCIPLINARY PROCEDURES
Sec. 1958.201. DISCIPLINARY ACTION. If a license holder
violates this chapter or an order or rule adopted under this
chapter, the department, after providing the person with notice
and an opportunity for a hearing, shall take one or more of the
following actions:
(1) revoke, suspend, or refuse to renew the license;
(2) impose an administrative penalty;
(3) bring an action to collect a civil penalty; or
(4) reprimand the person.
Added by Acts 2003, 78th Leg., ch. 205, Sec. 1, eff. Sept. 1,
2003.
SUBCHAPTER F. ADMINISTRATIVE PENALTY
Sec. 1958.251. IMPOSITION OF ADMINISTRATIVE PENALTY. The
commissioner may impose an administrative penalty on a person who
violates this chapter or a rule adopted or order issued under
this chapter.
Added by Acts 2003, 78th Leg., ch. 205, Sec. 1, eff. Sept. 1,
2003.
Sec. 1958.252. AMOUNT OF PENALTY. (a) The amount of an
administrative penalty may not exceed $5,000 for each violation.
Each day a violation continues under Section 1958.101 or 1958.155
may be considered a separate violation for purposes of imposing a
penalty.
(b) In determining the amount of the penalty, the commissioner
shall consider:
(1) whether the violation was committed knowingly,
intentionally, or fraudulently;
(2) the seriousness of the violation;
(3) any hazard created to the health and safety of the public;
(4) the person's history of previous violations; and
(5) any other matter that justice may require.
Added by Acts 2003, 78th Leg., ch. 205, Sec. 1, eff. Sept. 1,
2003.
Sec. 1958.253. EXCEPTION TO ADMINISTRATIVE PENALTY. (a) The
commissioner may choose not to impose an administrative penalty
under this subchapter if, not later than the 10th day after the
date of written notice of the violation under Section 1958.254,
the person provides conclusive evidence that the circumstances
giving rise to the violation have been corrected and all actual
damages are paid.
(b) This section does not apply to a violation alleged under
Section 1958.101 or 1958.155.
Added by Acts 2003, 78th Leg., ch. 205, Sec. 1, eff. Sept. 1,
2003.
Sec. 1958.254. NOTICE; OPPORTUNITY FOR HEARING; ORDER. (a) The
commissioner may impose an administrative penalty under this
subchapter only after the person charged with a violation is
given a written notice and the opportunity for a hearing.
(b) The written notice must state the facts that constitute the
alleged violation and the law or rule on which the violation is
based.
(c) If a hearing is held, the commissioner shall make findings
of fact and issue a written decision as to:
(1) the occurrence of the violation; and
(2) the amount of any penalty that is warranted.
(d) If the person charged with a violation fails to exercise the
opportunity for a hearing, the commissioner, after determining
that a violation occurred and the amount of the penalty that is
warranted, may impose a penalty and shall issue an order
requiring the person to pay any penalty imposed.
(e) Not later than the 30th day after the date the commissioner
issues an order after determining that a violation occurred, the
commissioner shall inform the person charged with the violation
of the amount of any penalty imposed.
(f) The commissioner may consolidate a hearing under this
section with another proceeding.
Added by Acts 2003, 78th Leg., ch. 205, Sec. 1, eff. Sept. 1,
2003.
Sec. 1958.255. OPTIONS FOLLOWING DECISION: PAY OR APPEAL. (a)
Not later than the 30th day after the date the commissioner's
decision or order becomes final as provided by Section 2001.144,
Government Code, the person shall:
(1) pay the administrative penalty; or
(2) file a petition for judicial review contesting the fact of
the violation, the amount of the penalty, or both.
(b) Within the 30-day period, a person who acts under Subsection
(a)(2) may stay enforcement of the penalty by:
(1) paying the penalty to the commissioner for placement in an
escrow account; or
(2) giving the commissioner a bond in a form approved by the
commissioner that:
(A) is for the amount of the penalty; and
(B) is effective until judicial review of the commissioner's
decision or order is final.
Added by Acts 2003, 78th Leg., ch. 205, Sec. 1, eff. Sept. 1,
2003.
Sec. 1958.256. COLLECTION OF PENALTY. At the request of the
commissioner, the attorney general may bring a civil action to
recover an administrative penalty imposed under this subchapter.
Added by Acts 2003, 78th Leg., ch. 205, Sec. 1, eff. Sept. 1,
2003.
Sec. 1958.257. JUDICIAL REVIEW. Judicial review of a decision
or order of the commissioner imposing a penalty under this
subchapter is instituted by filing a petition with a district
court in Travis County and is under the substantial evidence rule
as provided by Subchapter G, Chapter 2001, Government Code.
Added by Acts 2003, 78th Leg., ch. 205, Sec. 1, eff. Sept. 1,
2003.
Sec. 1958.258. REMITTANCE OF PENALTY AND INTEREST OR RELEASE OF
BOND. If after judicial review the administrative penalty is
reduced or is not upheld by the court, the commissioner shall:
(1) remit the appropriate amount, plus accrued interest, to the
person not later than the 30th day after the date of the
determination, if the person paid the penalty; or
(2) execute a release of the bond, if the person gave a bond.
Added by Acts 2003, 78th Leg., ch. 205, Sec. 1, eff. Sept. 1,
2003.
SUBCHAPTER G. OTHER PENALTIES; ENFORCEMENT PROVISIONS; EXEMPTIONS
FROM CIVIL LIABILITY
Sec. 1958.301. CIVIL PENALTY. (a) A person who violates this
chapter or a rule adopted under this chapter is liable for a
civil penalty in an amount not to exceed $2,000 for the first
violation or $10,000 for a second or later violation.
(b) The commissioner may request the attorney general or the
district, county, or city attorney having jurisdiction to bring
an action to collect a civil penalty under this section.
Added by Acts 2003, 78th Leg., ch. 205, Sec. 1, eff. Sept. 1,
2003.
Sec. 1958.302. INJUNCTIVE RELIEF. The commissioner may request
the attorney general or the district, county, or city attorney
having jurisdiction to bring an action for a restraining order,
injunction, or other relief the court determines is appropriate
if it appears to the department that a person is violating or has
violated this chapter or a rule adopted under this chapter.
Added by Acts 2003, 78th Leg., ch. 205, Sec. 1, eff. Sept. 1,
2003.
Sec. 1958.303. EXEMPTION FROM CIVIL LIABILITY FOR CERTAIN
PROPERTY OWNERS. A property owner is not liable for damages
related to mold remediation on a property if:
(1) a certificate of mold remediation has been issued under this
chapter for that property; and
(2) the damages accrued on or before the date of the issuance of
the certificate.
Added by Acts 2003, 78th Leg., ch. 205, Sec. 1, eff. Sept. 1,
2003.
Sec. 1958.304. EXEMPTION FROM CIVIL LIABILITY FOR CERTAIN
GOVERNMENTAL ENTITIES. A person is not liable in a civil lawsuit
for damages related to a decision to allow occupancy of a
property after mold remediation has been performed on the
property if:
(1) a certificate of mold remediation has been issued under this
chapter for the property;
(2) the property is owned or occupied by a governmental entity,
including a school; and
(3) the decision was made by the owner, occupier, or any person
authorized by the owner or occupier to make the decision.
Added by Acts 2003, 78th Leg., ch. 205, Sec. 1, eff. Sept. 1,
2003.