Section 19.4 - Operator Certification(a) Certification. (1) Prior to certification an applicant must establish proof of association, or pending association with: a law enforcement agency, or a laboratory, actively engaged in evidential breath alcohol testing, or a certified school of instruction in Texas or proof of pending association upon receipt of certification.(2) Conviction history: (A) persons convicted of a felony or a Class A misdemeanor shall not be eligible to be a certified operator;(B) persons convicted of a Class B misdemeanor within the last 10 years shall not be eligible to be a certified operator;(C) persons receiving a driver license suspension or a denial to issue a driver license for refusal to submit to the taking of a specimen per the provisions of Texas Transportation Code, Chapter 724 or Chapter 522 within the last 5 years shall not be eligible to be a certified operator.(3) Prior to initial certification as a breath test operator, an applicant must successfully complete a course of instruction meeting the criteria set forth in § 19.6 of this title (relating to Approval of Courses of Instruction).(4) Prior to certification as an operator of a breath alcohol testing instrument, an applicant must satisfactorily meet the criteria, set forth by the scientific director or a designated representative, as detailed in this paragraph: (A) a written examination;(B) establish competency in the operation of the instrument on which the operator is to be certified and the proper completion of all required reports and records;(C) failure of the written examination and/or failure to establish competency in the operation of the instrument will cause the applicant to be ineligible for reexamination for a period of 30 days. A subsequent failure of either criteria will require that the candidate attend and satisfactorily complete the initial course of instruction for certification of a breath test operator.(5) Upon successful completion of the requirements for certification, the scientific director will issue the individual an operator certificate for a period of time designated by the scientific director or until the next examination for renewal unless inactivated or suspended.(6) If an operator is certified to operate a specific brand and/or model of equipment and is required to be certified on an additional brand and/or model of equipment, the scientific director may waive portions of this section and only require instruction needed to acquaint the applicant with proper operation of the new brand and/or model of equipment.(b) Renewal of current certification. In order to maintain current certification, the operator is required to renew certification prior to its expiration date. The minimum requirement for renewal of operator certification will be: (1) The proper completion of any combination of five subject and/or practice tests as defined in the Texas Breath Alcohol Testing Program Operator Manual since the last issuance of an operator certificate per the provisions of subsection (a)(5) or (b)(5) of this section.(2) The satisfactory biennial completion of a course of instruction, the contents of which should include, but not be limited to, topics such as: (A) a brief review of the theory and operation of the breath alcohol test equipment;(B) a detailed review of the breath alcohol analysis and reporting procedures;(C) a review of procedural updates resulting from recent court decisions and legislation;(D) a review of current issues in the field of breath alcohol testing;(E) a written examination(3) Renewal of certification will be denied and current certification will be inactivated in accordance with subsection (d) of this section when the operator: (A) fails to properly complete a minimum of five tests in accordance with subsection (b)(1) of this section; or(B) fails the written examination.(4) An operator who fails renewal will be given the reason for failure and is not eligible to be reexamined for a period of 30 days. Reexamination will be pursuant to subsection (a)(4) of this section. A resulting failure will require that the operator attend and satisfactorily complete the initial course of instruction for certification of a breath test operator in order to regain current certification.(5) Upon successful completion of the requirements for renewal of certification, the scientific director will issue the individual an operator certificate for a period of time designated by the scientific director or until next examination for renewal unless inactivated or suspended.(c) Proficiency requirements. (1) The scientific director, or a designated representative, or the operator's technical supervisor may at any time require an operator to demonstrate proficiency in the proper operation of the instrument and analysis reporting procedures.(2) It is the responsibility of the operator to maintain proficiency.(3) Failure to pass a proficiency test will result in the suspension of the operator's certification for 30 days.(d) Certification inactivation and suspension. (1) Inactivation may be initiated by the certified operator in case of voluntary surrender of certification or by anyone with the authority to suspend. The technical supervisor or operator shall, without delay, notify the office of the scientific director of any such inactivation. Challenges to involuntary inactivation will be resolved at the discretion of the scientific director. Inactivation will be utilized, but is not limited to, as provided in this paragraph: (A) an operator transfers to a position where certification as a breath test operator is no longer desired;(B) an operator fails to renew certification prior to its expiration;(C) an operator terminates employment under which certification was acquired; or(D) administrative program control to safeguard the scientific integrity of the breath alcohol testing program.(2) Suspension of certification will be utilized when the scientific director and/or a technical supervisor determines an operator intentionally or purposefully disregards or violates these regulations, or commits a violation of law relating to breath testing, or falsely or deceitfully obtains certification, or for malfeasance or noncompliance with any provision of these regulations, or when in the technical supervisor's judgment the operator's performance is unreliable or the operator is incompetent. (A) The technical supervisor shall, without delay, notify the scientific director in writing of any such suspension and furnish a copy of such notice to the suspended operator and the operator's appropriate supervisor or department head. The suspended operator shall not be permitted to operate the instrument until such time as certification has been restored pursuant to subsection (e) of this section.(B) Upon receipt of the notification of suspension, the scientific director shall initiate, if not previously completed, an inquiry culminating in sustaining the suspension or setting aside the suspension.(C) The minimum period of suspension as determined by the scientific director will be for a period of time not less than 30 days. The technical supervisor or a designated representative of the scientific director may recommend a specific period of suspension to the scientific director.(D) Due to the immediate nature and the procedure for appeal, the individual initiating the suspension shall not be required to confer, consult, or obtain permission or approval from anyone prior to the initiation of the suspension. However, all suspensions must be consistent with procedures outlined in this subchapter.(3) An operator whose certification has been suspended may appeal such action in writing to the assistant director of the major division responsible for crime laboratory activities, Texas Department of Public Safety, who will determine if the action of the scientific director will be affirmed or set aside. The assistant director may reinstate the certification under such conditions as deemed necessary and notify the scientific director in writing.(e) Recertification. Certification that has been inactivated or suspended must be regained before evidential analyses may be administered. Recertification shall take place as detailed in this subsection: (1) recertification after inactivation for the failure to complete the renewal process prior to the expiration of current certification will be pursuant to subsection (a)(4) of this section;(2) recertification after inactivation or suspension will be pursuant to subsection (a)(4) of this section;(3) recertification after a change in instrumentation or testing methodologies will be at the discretion of the scientific director, will be pursuant to subsection (a)(6) of this section.(f) Certificate. The issuance of a certificate to the breath test operator shall be evidence that the operator has met the requirements for initial certification and/or renewal of certification.(g) Verification. The technical supervisor, when required, shall verify all aspects of operator certification, by direct testimony or by affidavit.37 Tex. Admin. Code § 19.4
The provisions of this §19.4 adopted to be effective March 26, 2006, 31 TexReg 2189; amended to be effective June 26, 2013, 38 TexReg 3988; amended by Texas Register, Volume 40, Number 02, January 9, 2015, TexReg 250, eff. 1/12/2015