TITLE public-safety-and-corrections

Part I. Texas Department of Public Safety

Chapter 6. License to Carry Concealed Handgun

Subchapter A. General Provisions

37 TAC §§6.1, 6.3-6.5

The Texas Department of Public Safety proposes amendments to §§6.1 and 6.3-6.5, concerning license to carry concealed handgun. Amendments to §§6.1, 6.4, and 6.5 are necessary in order for the department to comply with legislative amendments to the Concealed Handgun Statute. Section 6.3 amendment reflects a change in the mailing address of the Concealed Handgun Legal Section.

Tom Haas, Chief of Finance, has determined that for each year of the first five-year period the rules are in effect there will be no fiscal implications to state or local government as a result of enforcing or administering the rules.

Mr. Haas also has determined that for each year of the first five years the rules are in effect the public benefit anticipated as a result of enforcing or administering the rules will be the licensing of individuals to carry a concealed handgun. There is no anticipated economic cost to small or large businesses. There is no anticipated economic cost to individuals.

Comments on the proposal may be submitted to Mary Ann Courter, Chief of Legal Services, Texas Department of Public Safety, Box 4087, Austin, Texas 78773-0140, (512) 424-2890.

The amendments are proposed pursuant to Texas Civil Statutes, Article 4413(29ee), §22 (now codified in Texas Government Code, Subchapter H, §411.197) which authorize the department to adopt rules to administer this article.

Texas Civil Statutes, Article 4413(29ee), §22 (now codified in Texas Government Code, Subchapter H, §411.197) is affected by this proposal.

§6.1.Definitions.

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

(1)

Act - Texas Civil Statutes, Article 4413(29ee) and Texas Government Code, Chapter 411, Subchapter H .

(2)

Active judicial officer - A person serving as a judge or justice of the supreme court, the court of criminal appeals, a court of appeals, a district court, a criminal district court, a constitutional county court, a statutory county court, a justice court, or a municipal court.

(3)

Applicant - A license applicant or an instructor applicant.

(4)

Certified handgun instructor - A qualified handgun instructor.

(5)

Chemically dependent person - A person who:

(A)

frequently or repeatedly becomes intoxicated by excessive indulgence in alcohol or uses controlled substances or dangerous drugs so as to acquire a fixed habit and an involuntary tendency to become intoxicated or use those substances as often as the opportunity is presented;

(B)

has been convicted two times within the 10-year period preceding the date on which the person applies for a license of an offense of the grade of Class B misdemeanor or greater that involves the use of alcohol or a controlled substance as a statutory element of the offense;

(C)

is an unlawful user of or addicted to any controlled substance; or

(D)

is an addict, as defined by United States Code §802.

(6)

Concealed handgun - A handgun, the presence of which is not openly discernible to the ordinary observation of a reasonable person.

(7)

Controlled substance - has the meaning assigned by 21 United States Code §802.

(8)

Convicted - An adjudication of guilt or an order of deferred adjudication entered against a person by a court of competent jurisdiction for an offense under the laws of this state, another state, or the United States, whether or not the imposition of the sentence is subsequently probated and the person is discharged from community supervision. The term does not include an adjudication of guilt or an order of deferred adjudication which has been subsequently :

(A)

expunged [ the imposition of the sentence is subsequently probated and the person is discharged from community supervision ]; or

(B)

pardoned under the authority of a state or federal official [ the person is pardoned for the offense, unless the pardon is expressly granted for subsequent proof of innocence ].

(9)

Delinquent Conduct - has the meaning assigned by Family Code, §51.03.

(10)

[ (9) ] Department - The Texas Department of Public Safety, including employees of the department.

(11)

[ (10) ] Director - The Director of the Texas Department of Public Safety or the Director's designee.

(12)

[ (11) ] Director's designee - For purposes of conducting background investigations under this chapter, refers to an employee of the department, unless otherwise specified by the Director.

(13)

Finally determined - whether a person has been finally determined to be delinquent in the payment of taxes, student loans, or child support payments will be determined by the agency reporting the delinquency to the Department.

(14)

[ (12) ] Handgun - Has the meaning assigned by Texas Penal Code, §46.01.

(15)

[ (13) ] Instructor applicant - A person who applies for certification, either original or renewed, as a qualified handgun instructor.

(16)

[ (14) ] Intoxicated - Has the meaning assigned by Texas Penal Code, §49.01.

(17)

[ (15) ] License applicant - An applicant for a license, either original or renewed, to carry a concealed handgun under the Act [ Texas Civil Statutes, Article 4413(29ee) ].

(18)

[ (16) ] License holder - A person licensed to carry a concealed handgun under the Act [ Texas Civil Statutes, Article 4413(29ee) ].

(19)

[ (17) ] Qualified handgun instructor - A person who is certified by the department to instruct in the use of handguns.

(20)

[ (18) ] Residence - Domicile; that is, one's home and fixed place of habitation to which he intends to return after any temporary absence. The term "residence" has the meaning assigned in §15.25 of this title (relating to Address).

(21)

[ (19) ] Retired judicial officer - A special judge appointed under Texas Government Code, §26.023 or §26.024; or a senior judge designated under Texas Government Code, §75.001; or a judicial officer as designated or defined by Texas Government Code, §75.001, §831.001, or §836.001.

[ (20)

Unsound mind - The mental condition of a person who:]

[ (A)

has been adjudicated mentally incompetent, mentally ill, or not guilty of a criminal offense by reason of insanity;]

[ (B)

has been diagnosed by a licensed physician as being characterized by a mental disorder or infirmity that renders the person incapable of managing the person's self or the person's affairs, unless the person furnishes a certificate from a licensed physician stating that the person is no longer disabled or under any medication for the treatment of a mental or psychiatric disorder. Provided, that a person who refuses against medical advice to take medication prescribed by a licensed physician for a mental disorder or infirmity shall be considered to be "under medication"; or]

[ (C)

has been diagnosed by a licensed physician as suffering from depression, manic depression, or post-traumatic stress syndrome, unless the person furnishes a certificate from a licensed physician stating that the person is no longer disabled or under any medication for the treatment of a mental or psychiatric disorder.]

§6.3.Correspondence.

(a)

Addressed to the department. Except as otherwise provided, applications and correspondence not relating to requests for hearings should be mailed to the department at the following address: Texas Department of Public Safety, Concealed Handgun Licensing Unit, Post Office Box 15888, Austin, Texas 78761-5888. A request for hearing and all correspondence relating thereto should be mailed to the department at the following address: Texas Department of Public Safety, Crime Records Service - Concealed Handgun Legal Section MSC-0236, Box 4143, Austin, Texas 78765-4143 [ Legal Services - Concealed Handgun Section, Post Office Box 15327, Austin, Texas 78761-5327 ].

(b)

Addressed to applicant, license holder, or certified instructor. Notice will be mailed to the address currently reported to the department by an applicant, license holder, or certified instructor as the correct address. For the purpose of any notice required by the Act, the department will assume that the address currently reported to the department by the applicant or license holder is the correct address.

(c)

Notice. Written notice meets the requirements under this Act if the notice is sent by certified mail to the current address reported by the applicant or license holder to the department. If a notice is returned to the department because the notice is not deliverable, the department may give notice by publication once in a newspaper of general interest in the county of the applicant's or license holder's last reported address. On the 31st day after the date the notice is published, the department may take the action proposed in the notice.

§6.4.Notice Required on Certain Premises.

(a)

Notice: The following establishments shall prominently display an appropriate notice at each entrance to the premises, to state that it is unlawful to carry a handgun on the premises:

(1)

a business that has a permit or license issued under Alcoholic Beverage Code, Chapter 25, 28, 32, [ or ] 69, or 74, and that derives 51% or more of its income from the sale of alcoholic beverages for on-premises consumption as determined by the Texas Alcoholic Beverage Commission under Alcoholic Beverage Code, §104.06 .

(2)

a hospital licensed under the Health and Safety Code, Chapter 241.

(3)

a nursing home licensed under the Health and Safety Code, Chapter 242.

(b)

Text. The sign must state that it is unlawful for a person licensed under the Act to carry a handgun on the premises. [ The following text may be used: "State law prohibits carrying a handgun on these premises." A citation to statute may be included as follows: "Texas Civil Statutes, Article 4413(29ee)." ] The notice must also be posted in Spanish. [ The following text may be used: "La ley del estado prohibe cargar arma de fuego en este sitio." ]

(c)

Visibility. The sign must appear in contrasting colors with block letters at least one inch in height and must include on its face the number "51" printed in solid red at least 5 inches in height . The sign shall be displayed in a conspicuous manner clearly visible to the public from outside or immediately inside each public, service, and employee entrance. Signs required by this section are not required to be posted by fire exits, interior entrances, or entrances to individual resident rooms.

§6.5. Notice Optional on Other Premises.

(a)

Notice. A public or private employer may prohibit persons who are licensed to carry from carrying a concealed handgun on the premises of the business.

(b)

Text. A sign prohibiting license holders from carrying a concealed handgun must comply with the requirements of Texas Penal Code, 30.06("Trespass by Holder of License to Carry Concealed Handgun"). [ The sign may state that it is prohibited to carry a handgun on the premises. The following are samples of text which may be used: ]

[ (1)

"Possession of a handgun under authority of Texas Concealed Handgun Permit Law, Texas Civil Statutes, Article 4413(29ee), is prohibited in this building."]

[ (2)

"Possession of a handgun under authority of Texas Concealed Handgun Permit Law, Texas Civil Statutes, Article 4413(29ee), is prohibited beyond this point."]

[ (c)

Spanish Text. The notice may also be posted in Spanish as follows:]

[ (1)

"No se permite posser armas de fuego en este edificio bajo authoridad de la Ley de Permisos para Portar Armas de Fuego en el Estado de Texas, Texas Civil Statutes, Article 4413, (29ee)."]

[ (2)

"De este lugar en adelante, no se permite poseer armas de fuego bajo authoridad de la Ley de Permisos para Portar Armas de Fuego en el Estado de Texas, Texas Civil Statutes, Article 4413 (29ee)."]

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 19, 1999.

TRD-9902929

Dudley M. Thomas

Director

Texas Department of Public Safety

Earliest possible date of adoption: July 4, 1999

For further information, please call: (512) 424-2135


Subchapter B. Eligibility and Application Procedures

37 TAC §§6.11, 6.14-6.18, 6.21

The Texas Department of Public Safety proposes amendments to §§6.11, 6.14-6.18 and new §6.21, concerning license to carry concealed handgun. Sections 6.11, 6.14, and 6.16-6.18 are amended to comply with legislative changes to the Concealed Handgun Statute. Figure 1, §6.16(b)(1) reference the Federal Poverty Guidelines is deleted. Section 6.15 is amended to comply with legislative changes to the Concealed Handgun Statute, to provide a grace period for the acceptance of proficiency certificates, and to clarify the circumstances under which an application may be terminated. New §6.21 which clarifies the renewal of license process is filed simultaneously with the repeal of current §6.21.

Tom Haas, Chief of Finance, has determined that for each year of the first five-year period the rules are in effect there will be no fiscal implications to state or local government.

Mr. Haas also has determined that for each year of the first five-year period the rules are in effect the public benefit anticipated as a result of enforcing or administering the rules will be the licensing of individuals to carry a concealed handgun. There is no anticipated economic cost to small or large businesses. The anticipated cost to individuals who are required to comply with the sections as proposed will be the cost of the nonrefundable application fee of $140 for a four-year license, the instruction fee of approximately $100 - $300, the renewal/recertification fee of $100, as well as costs for handguns, ammunition, and appropriate clothing.

Comments on the proposal may be submitted to Mary Ann Courter, Chief of Legal Services, Texas Department of Public Safety, Box 4087, Austin, Texas 78773-0140, (512) 424-2890.

The amendments and new section are proposed pursuant to Texas Civil Statutes, Article 4413(29ee), §22, (now codified in Texas Government Code, Subchapter H, §411.197) which authorize the department to adopt rules to administer this article.

Texas Civil Statutes, Article 4413(29ee), §22 (now codified in Texas Government Code, Subchapter H, §411.197) is affected by this proposal.

§6.11.Eligibility for License to Carry a Concealed Handgun.

To be eligible for a license to carry a concealed handgun, a person must meet the following requirements:

(1)

an applicant must have been a resident of this state for the six-month period preceding the date of application or must be eligible for a non-resident license as provided by the Act ;

(2)

the applicant must be at least 21 years of age;

(3)

the applicant must not have been convicted of a felony. An offense is considered a felony if the offense is so designated by law or if confinement for one year or more in a penitentiary is affixed to the offense as a possible punishment;

(4)

the applicant must not be currently charged with the commission of a Class A or Class B misdemeanor or an offense under Texas Penal Code, §42.01, or of a felony under an information or indictment;

(5)

the applicant must not be a fugitive from justice for a felony or a Class A or Class B misdemeanor;

(6)

the applicant must not be chemically dependent;

(7)

the applicant must not be incapable of exercising sound judgment with respect to the proper use and storage of a handgun as defined in the Act [ of unsound mind ];

(8)

the applicant must not, in the five years preceding the date of application, have been convicted of a Class A or Class B misdemeanor or an offense under Texas Penal Code, §42.01. An offense is considered a Class A [ or Class B ] misdemeanor if the offense is not a felony and confinement in a jail other than a state jail felony facility is affixed as a possible punishment;

(9)

the applicant must be fully qualified under applicable federal and state law to purchase a handgun;

(10)

the applicant must not have been finally determined to be delinquent in making a child support payment administered or collected by the attorney general, unless the applicant has since discharged the outstanding delinquency;

(11)

the applicant must not have been finally determined to be delinquent in the payment of a tax or other money collected by the comptroller, state treasurer, tax collector of a political subdivision of the state, Texas Alcoholic Beverage Commission, or any other agency or subdivision of the state, unless the applicant has since discharged the outstanding delinquency;

(12)

the applicant must not have been finally determined to be in default on a loan made under the Education Code, Chapter 57, unless the applicant has since discharged the outstanding delinquency;

(13)

the applicant must not be currently restricted by or subject to a court order that restrains the applicant from injuring, harassing, stalking, or threatening the applicant's spouse or intimate partner, or the child of the applicant, the applicant's spouse, or intimate partner. This paragraph includes a protective order issued under the Family Code §3.58 or §3.581, or Family Code, Chapter 71. This paragraph does not include any restraining order or protective order solely affecting property interests;

(14)

the applicant must not, in the 10 years preceding the date of application, have been adjudicated as having engaged in delinquent conduct violating a penal law of the grade of felony; and

(15)

the applicant must not have been made any material misrepresentation, or failed to disclose any material fact, in a request for application materials or in an application for a license to carry a concealed handgun.

§6.14.Proficiency Requirements.

(a)

A person who wishes to obtain or renew a license to carry a concealed handgun shall apply in person to a certified handgun instructor to take the appropriate course in handgun proficiency, demonstrate handgun proficiency, and obtain a handgun proficiency certificate. An applicant will be required to demonstrate the applicant's ability to safely and proficiently use the category of handgun for which the applicant seeks certification.

(b)

A proficiency examination to obtain or to renew a license must be administered by a certified handgun instructor. The proficiency examination must include:

(1)

a written section on required subjects; and

(2)

a physical demonstration of proficiency in the use of one or more handguns of specific categories and in handgun safety procedures.

(c)

The department shall distribute the standards, course requirements, and examinations on request to any certified handgun instructor.

(d)

The proficiency demonstration course will be the same for both the instructors and license applications. The course of fire will be at distances of three, seven, and fifteen yards, for a total of fifty rounds.

(1)

Twenty rounds will be fired from three yards, as follows:

(A)

five rounds will be fired "One Shot Exercise"; two seconds allowed for each shot;

(B)

ten rounds will be fired "Two Shot Exercise"; three seconds allowed for each two shots; and

(C)

five rounds will be fired; ten seconds allowed for five shots.

(2)

Twenty rounds will be fired from seven yards, fired in four five-shot strings as follows:

(A)

the first five shots will be fired in ten seconds;

(B)

the next five shots will be fired in two stages:

(i)

two shots will be fired in four seconds; and

(ii)

three shots will be fired in six seconds.

(C)

the next five shots at seven yards will be fired "One Shot Exercise"; three seconds will be allowed for each shot; and

(D)

the last five shots fired at the seven-yard line, the time will be fifteen seconds to shoot five rounds.

(3)

Ten rounds will be fired from fifteen yards, fired in two five-shot strings as follows:

(A)

the first five shots will be fired in two stages:

(i)

two shots fired in six seconds; and

(ii)

three shots fired in nine seconds.

(B)

the last five shots will be fired in fifteen seconds.

(e)

The department shall issue a license to carry a concealed handgun to any person who is certified as a qualified handgun instructor and who pays the department a fee of $100 in addition to the training fee [ waive the proficiency requirements for a license applicant who has successfully completed the instructor training course and paid the training fee ].

§6.15.Basic Application Materials Required.

An applicant must complete the application materials required by this section and forward the completed materials to the department at its headquarters in Austin. Except as otherwise provided, an application must contain all the following items:

(1)

Proficiency certificate. The applicant must submit a handgun proficiency certificate issued upon successful completion of a handgun proficiency course approved by the department and taught by a certified handgun instructor. A proficiency certificate, which is more than two years old, will not be accepted by the department.

(2)

Application form. The applicant must submit a completed application on Form CR-78, which is adopted for that purpose. The applicant must complete the unique application form provided to that individual by the department. An application form may not be transferred or exchanged, or submitted by another applicant. The application form will require a statement of the applicant's:

(A)

full name and place and date of birth;

(B)

race and sex;

(C)

residence and business addresses for the preceding five years;

(D)

hair and eye color;

(E)

height and weight;

(F)

driver's license number or identification certificate number issued by the department;

(G)

criminal history record information, including a list of offenses for which the applicant has been arrested or charged under an information or indictment, and the disposition of each offense; and

(H)

history during the preceding five years, if any, of treatment received by, commitment to, or residence in:

(i)

a drug or alcohol treatment center licensed to provide drug or alcohol treatment under the laws of this state or another state; or

(ii)

a psychiatric hospital.

(3)

Proof of residency in this state. Unless an applicant is eligible for a non-resident license under the Act, the [ The ] applicant must provide proof of residence in this state for the six-month period preceding the date of application. Residency may be shown by the following types of documents:

(A)

proof that the applicant has been issued and has maintained an unexpired Texas driver's license or personal identification card issued by the department for six months or longer; provided further, that possession by an applicant of a driver's license issued by another state constitutes prima facie evidence of residency in such other state;

(B)

proof that the applicant has been registered to vote in this state for six months or longer;

(C)

proof that the applicant has owned or leased a residence in this state for six months or longer. Deed records, rental contracts, rental receipts, or canceled checks showing payment of rent may be used to support a claim of residency;

(D)

records of utility payments; or

(E)

other proof acceptable to the department.

(4)

Two recent color passport photographs of the applicant. The applicant shall submit two identical photographs of the applicant to the person who fingerprints the applicant, as detailed in paragraph (5) of this section. The photographs must be un-retouched color prints. Snapshots, vending machine prints, and full length photographs will not be accepted. The photographs must be 2 by 2 inches in size. The photographs must be taken in normal light, with white or off-white background. The photographs must present a good likeness of the applicant taken within the last six months. The photographs must present a clear, frontal image of the applicant, and include the full face from the bottom of the chin to the top of the head, including hair. The image of the applicant must be between 1 and 1-3/8 inches. Only the applicant may be portrayed.

(5)

Two fingerprint cards. The applicant must be fingerprinted by a person [ employed by a law enforcement agency who is ]appropriately trained in recording fingerprints who is employed by a law enforcement agency or by a private entity designated by a law enforcement agency, as an entity qualified to take fingerprints of an applicant for a license . The applicant must display a Texas driver's license or personal identification card issued by the department. The applicant must deliver two passport photographs as described in paragraph (4) of this section, two blank fingerprint cards supplied by the department, and an instruction page included in the application materials on Form CR-75, which is adopted for that purpose. An instructor applicant is not required to submit photographs. Two complete sets of legible and classifiable fingerprints of the applicant must be recorded on cards provided by the department. The person who records the applicant's fingerprints shall:

(A)

verify that the passport photographs are of the person being fingerprinted (not required for instructor applicants);

(B)

either complete or verify the accuracy of the non-fingerprint data being submitted on the card;

(C)

record the individual's fingerprints on the card, in a manner consistent with that normally done for an arrest fingerprint card, including the simultaneous impressions;

(D)

obtain the signature of the license applicant on both the fingerprint cards and on the back of one of the passport photographs; (not required for instructor applicants). The applicant's signature must comply with §15.21 of this title (relating to Signature);

(E)

sign the fingerprint card and the back of the same passport photograph signed by the applicant; (not required for instructor applicants); and

(F)

return all documents to the applicant to be forwarded to the department.

(6)

Affidavits. The applicant must execute and submit affidavits which in substance state the following:

(A)

the applicant has read and understood each provision of the Act [ Texas Civil Statutes, Article 4413(29ee) ] that creates an offense under the laws of this state, and each provision of the laws of this state related to the use of deadly force. Form CR-86L is adopted for this purpose;

(B)

the applicant fulfills all the eligibility requirements for a license to carry a concealed handgun. Form CR-87L is adopted for this purpose; and

(C)

the applicant authorizes the director to make inquiry into any non-criminal history records that are necessary to determine the applicant's eligibility for a license. Form CR-85L is adopted for this purpose.

(7)

Signature of applicant. The applicant must sign the passport photograph holder provided by the department. The applicant's signature must comply with §15.21 of this title (relating to Signature).

(8)

Fee. Except as otherwise provided, the applicant must submit a nonrefundable fee of $140 with the application for license. The fee must be in the form of a cashier's check, money order, or a check issued by a federal, state, or local government agency, made payable to the Texas Department of Public Safety.

(9)

Proof of age. Proof of age may be established by a Texas driver's license or personal identification card issued by the department. If an applicant cannot show proof of age through a driver's license or personal identification card issued by the department, the applicant must submit alternative proof of age. The applicant may submit a certified copy of the applicant's birth certificate as prescribed in §15.24 of this title (relating to Birth Certificate Or Other Acceptable Evidence).

(10)

Social Security number. An applicant must provide the applicant's Social Security number. This information is required to assist in the administration of laws relating to child support enforcement, as required and authorized by Family Code, §231.302.

(11)

Failure to provide information. If an applicant fails to provide all required application materials, or fails to respond to a request by the department for additional information necessary to process the application, the application process will be terminated as set out in §6.17(a) of this title (relating to Application Review and Background Investigation).

§6.16.Special Application Procedures and Fees.

(a)

Senior citizens. For purposes of this subsection, a person 60 years of age or older is considered a senior citizen and is entitled to a reduced fee. Senior citizens must submit the basic application materials required, except that the department shall reduce by 50% any fee required for the issuance of an original, duplicate, or modified license under the Act.

(b)

Indigent persons.

(1)

Eligibility. The department shall reduce by 50% any fee required for the issuance of an original, duplicate, modified, or renewed license under the Act if the department determines that the applicant or license holder is indigent. Indigence is determined by determining the size of the family unit and the yearly income level of the family unit. For purposes of this subsection, an applicant is indigent if the applicant's income is not more than 100% of the applicable income level established by the federal poverty guidelines [ according to Figure 1:, Federal Poverty Guidelines ].

[ Figure 1: 37 TAC §6.16(b)(1) ]

(2)

Applicants who are indigent must submit the basic application required. In addition, persons applying under this subsection are required to submit proof of indigence. An applicant may demonstrate indigence by producing the applicant's most recent tax return, a recent application for government assistance, or by other means acceptable to the department.

(c)

Honorably retired peace officer.

(1)

Eligibility. A person who is licensed as a peace officer under Texas Government Code, Chapter 415, and who has been employed full-time as a peace officer by a law enforcement agency may apply for a license upon retirement. The application must be made not later than the first anniversary after the date of retirement. The department may issue a license to an applicant who is a retired peace officer if the applicant is:

(A)

honorably retired. For purposes of this subsection, "honorably retired" means the applicant:

(i)

did not retire in lieu of any disciplinary action;

(ii)

was employed as a full-time peace officer for not less than 10 years by one agency; and

(iii)

is entitled to receive a pension or annuity for service as a law enforcement officer.

(B)

is physically fit to possess a handgun; and

(C)

is emotionally fit to possess a handgun.

(2)

Proficiency. To obtain a license under this subsection, a retired peace officer must maintain, for the category of weapon licensed, the proficiency required for a peace officer under Texas Government Code, §415.035. In lieu of a standard certificate of proficiency, an honorably retired peace officer may submit evidence of proficiency issued by a state or local law enforcement agency, or by the Texas Commission on Law Enforcement Officer Standards and Education (TCLEOSE). The department or a local law enforcement agency shall allow a retired peace officer of the department or agency an opportunity to annually demonstrate the required proficiency. The proficiency shall be reported to the department on application and renewal. An applicant who submits evidence of proficiency under this paragraph is not required to apply for or attend a course of instruction with a certified handgun instructor.

(3)

Application and fee.

(A)

Evidence of proficiency. The applicant shall submit evidence of proficiency issued by a state or local law enforcement agency.

(B)

Application materials.

(C)

Letter of good standing. In addition to the basic applications required, the applicant shall submit a sworn statement on agency letterhead from the head of the law enforcement agency employing the applicant to state the following:

(i)

the name and rank of the applicant;

(ii)

the status of the applicant before retirement;

(iii)

whether or not the applicant was accused of misconduct at the time of the retirement;

(iv)

the physical and mental condition of the applicant;

(v)

the type of weapons the applicant had demonstrated proficiency with during the last year of employment;

(vi)

whether the applicant would be eligible for reemployment with the agency, and if not, the reasons the applicant is not eligible; and

(vii)

a recommendation from the agency head regarding the issuance of a license under the Act.

(D)

Reduced fee. The fee for a license issued under this subsection shall be $25.

(d)

Honorably retired federal peace officer [ special agent ]. A retired officer [ criminal investigator ] of the United States who was eligible to carry a firearm in the discharge of his official duties [ is designated as a "special agent" ] may apply for a license as an honorably retired peace officer. Except as otherwise provided, the license fee and application procedure for an honorably retired federal officer [ special agent ] shall be the same as for an honorably retired peace officer. An applicant described by this subsection may submit the application at any time after retirement. The applicant shall submit with the application proper proof of retired status by presenting the following documents prepared by the agency from which the applicant retired:

(1)

retirement credentials; and

(2)

a letter from the agency head on agency letterhead stating that the applicant retired in good standing.

(e)

Active Peace Officer.

(1)

Eligibility. A person who is licensed as a peace officer under Texas Government Code, Chapter 415, and is employed full-time as a peace officer by a law enforcement agency may apply for a license.

(2)

Proficiency. To obtain a license under this subsection, an active peace officer must maintain, for the category of weapon licensed, the proficiency required for a peace officer under Texas Government Code, §415.035. In lieu of a standard certificate of proficiency, an active peace officer may submit evidence of proficiency issued by a state or local law enforcement agency, or by the Texas Commission on Law Enforcement Officer Standards and Education (TCLEOSE). An applicant who submits evidence of proficiency under this paragraph is not required to apply for or attend a course of instruction.

(3)

Application and fee.

(A)

Evidence of proficiency. The applicant shall submit evidence of proficiency issued by a state or local law enforcement agency.

(B)

Application materials, including two complete sets of legible and classifiable fingerprints.

(C)

Letter of good standing. In addition to the basic application materials required, the applicant shall submit a sworn statement on agency letterhead from the head of the law enforcement agency employing the applicant stating the following.

(i)

the name and rank of the applicant;

(ii)

whether the applicant has been accused of misconduct at any time during the applicant's period of employment with the agency and the disposition of that accusation;

(iii)

a description of the physical and mental condition of the applicant;

(iv)

a list of the types of weapons the applicant has demonstrated proficiency with during the preceding year; and

(v)

a recommendation from the agency head that a license be issued to the person.

(D)

Reduced fee. The fee for a license issued under this subsection shall be $25.

(f)

[ (e) ] Active judicial officer.

(1)

Eligibility. An active judicial officer is eligible for a license to carry a concealed handgun. The department shall issue a license to an active judicial officer who meets the requirements of this subsection.

(2)

Application and fee. An applicant for a license who is an active judicial officer must submit the basic application materials required, except that:

(A)

the fee for a license issued under this subsection shall be $25;

(B)

the classroom instruction part of the proficiency course required for an active judicial officer is not subject to a minimum hour requirement. Applicants who are active judicial officers shall be required to take classroom instruction only on:

(i)

handgun use, proficiency, and safety; and

(ii)

proper storage practices for handguns with an emphasis on storage practices that eliminate the possibility of accidental injury to a child.

(3)

Renewal. An active judicial officer is not required to attend the classroom instruction part of the continuing education proficiency course to renew a license.

(g)

[ (f) ] Retired judicial officer. The department shall issue a license to a retired judicial officer who meets the requirements of this subsection. An applicant for a license who is a retired judicial officer must submit the basic application materials required, except that the fee for a license issued under this subsection shall be $25. [ : ]

[ (1)

the fee for a license issued under this subsection shall be $25; and]

[ (2)

a retired judicial officer shall be required to take classroom instruction only on:]

[ (A)

handgun use, proficiency, and safety; and]

[ (B)

proper storage practices for handguns with an emphasis on storage practices that eliminate the possibility of accidental injury to a child.]

(h)

[ (g) ] Felony prosecutor. An attorney who is elected or appointed to represent the state in the prosecution of felony cases is eligible for a license to carry a concealed handgun. The department shall issue a license to carry a concealed handgun [ to an applicant ] under this subsection to an applicant who meets the requirements for an active judicial officer. No fee is required for an original, duplicate, or renewed license for an applicant who meets the requirements of this subsection.

(i)

Non-resident licenses.

(1)

Eligibility. The department shall issue a license to a legal resident of another state if:

(A)

the applicant's state of residence does not provide for the issuance of a license to carry a concealed handgun; and

(B)

the applicant meets the eligibility requirements of the Act, other than the residency requirement.

(2)

Application and fee. An applicant who is a legal resident of another state shall submit the basic application materials and pay an application fee of $140.

(3)

If a Texas resident license holder moves to a state that does not provide for the issuance of a license to carry a concealed handgun, the license holder may submit a change of address form to the department to reflect the new out-of-state address. If the Texas license holder moves to a state which provides for the issuance of a license to carry a concealed handgun, the license holder must surrender the license to the department. If the license holder does not surrender the license, the department will revoke the license.

(4)

If a state whose residents previously qualified for a Texas non-resident license subsequently enacts a law providing for the issuance of a license to carry a concealed handgun, any resident of that state who has been issued a non-resident license must surrender the license to the department. The department will revoke the license of any non-resident license holder who does not surrender the license after the non-resident's state enacts such a law.

[ (h)

Reciprocal licenses for non-residents. On application by a person who has a valid license to carry a concealed handgun issued by another state, the department may issue to the non-resident license holder a reciprocal license without requiring that the person meet eligibility requirements or pay fees otherwise imposed by the Act. Before issuing a reciprocal license, the department must first determine that:]

[ (1)

the eligibility requirements imposed by the other state are at least as rigorous as the requirements imposed by the Act; and]

[ (2)

the other state provides reciprocal licensing privileges to a person who holds a license issued by the department under the Act and applies for a license in the other state.]

(j)

[ (i) ] Instructor applicants.

(1)

Eligibility. To be eligible to be a certified handgun instructor, a instructor applicant must be eligible to be licensed to carry a concealed handgun. A certified handgun instructor is not required to be licensed to carry a concealed handgun.

(2)

Application and fee. Prior to being accepted for training by the department, an instructor applicant must complete the required application materials and submit these to the department at its headquarters in Austin. An instructor applicant must complete the basic application materials required, except that:

(A)

photographs are not required;

(B)

the fee for application and training is $100. Initial and renewal instructor applicants will have two notified scheduled opportunities to attend respective classes in Austin. Upon not attending by the second opportunity, the $100 application renewal fee shall be forfeited; and

(C)

in addition to other required application materials, instructor applicants are required to submit certain additional information required by the department on Form CR-90T, which is adopted for this purpose.

(k)

Reciprocal agreements.

(1)

The department shall negotiate an agreement with any other state that provides for the issuance of a license to carry a concealed handgun under which a license issued by the other state is recognized in this state if the department determines that;

(A)

the eligibility requirements imposed by the other state include background check requirements that meet or exceed background requirements imposed by federal law as a condition of receiving a handgun; and

(B)

the other state recognizes a license issued in this state.

(2)

Any agreement negotiated under this subsection shall be signed by the director of the department with the approval of the governor and by the appropriate agency head of the state with which the department is negotiating an agreement. A list of the states with which Texas has a reciprocal agreement shall be maintained in the department's public information office. A resident of a state with which Texas has a reciprocal agreement may not be issued a Texas license; however, if the resident has a valid license from his issuing state, the license will be honored in Texas.

[ (j)

Two year licenses. Initial licenses will be issued for either a two year or a four year term. Certain license applicants, randomly selected, will be issued an application for a two year license The department shall reduce by 50% the fee required for issuance of a two year license. After expiration of the two year license, renewals will be for a four year period.]

§6.17.Application Review and Background Investigation.

(a)

Applications must be complete and legible. If an application is not legible or is not complete, the department will notify the applicant of any apparent deficiency. The applicant will have 90 days from the date on which the department first received the original license application to amend the application. Upon request, the department may extend the period to amend the application for one additional 90 day period. After the period to amend has expired, then the application process will be terminated.

(b)

Time to review application and complete background investigation. [ Between September 1, 1995 and December 31, 1996, the department shall conduct the application review and background investigation not later than the 90th day after the date on which the director's designee receives the completed application materials. After January 1, 1997, the ] The department shall conduct the application review and background investigation not later than the 60th day after the date on which the director's designee receives the completed application materials , unless a question exists with respect to the accuracy of the application materials or the eligibility of the applicant, in which case the record check and investigation shall be completed not later that 180 days after the date the department receives the application materials . The department shall conduct the application review and background investigation within the required time period, as measured from the date when it was received and complete. An application is not considered to have been received until it is complete. Failure of the department to either issue or deny a license for a period of more than 30 days after the time required constitutes denial.

(c)

Central background investigation. On receipt of the completed application materials, the department shall review the application and conduct a background check of each applicant. The central background investigation will include a criminal history record check of each applicant for an original or renewal license or certification through the department's computerized criminal history system. The department shall send one set of the applicant's fingerprints to the Federal Bureau of Investigation for a national criminal history check of the applicant. The scope of the background investigation additional to the criminal history check is within the sole discretion of the department.

(d)

Field background investigation. Not later than the 30th day after the date the department receives the application materials, the department shall send the application materials to the director's designee in the geographical area of the applicant's residence for a field background investigation. The director's designee is authorized to conduct a field background investigation. The scope of the field background investigation is within the sole discretion of the department. The director's designee is authorized to conduct an additional criminal history record check of the applicant and an investigation of locally maintained official records to verify the accuracy of the application materials. The director's designee is authorized to check local arrest records of law enforcement agencies in each city and county where the applicant has resided for the five years preceding the date of application. The director's designee is authorized to obtain copies of official records of arrests or convictions if necessary. On request of the director's designee, a juvenile court shall reopen and allow the department to inspect the files and records of the juvenile court relating to the license applicant. The director's designee is authorized to investigate other credible information received and to conduct appropriate follow-up investigation as necessary. Upon completion of the investigation, the director's designee shall return all application materials and investigation results to the appropriate division of the department at the address as specified in §6.3 of this title (relating to Correspondence). The investigation results shall include a written recommendation that the application either be approved or disapproved. If the director's designee recommends disapproval, the recommendation shall be accompanied by an affidavit stating personal knowledge or naming persons with personal knowledge of a ground for denial under The Act. The investigation results may include affidavits from other persons stating grounds for denial.

§6.18.License Issuance.

(a)

The department shall issue a license to carry a concealed handgun to an applicant if the applicant meets all the eligibility requirements and submits all the required application materials. The department shall not issue a license or instructor certificate to any applicant for whom possession of a firearm would be in violation of state or federal law. This determination will be based on all information available to the department, including information provided to the department on the application, the background investigation, and other information provided to the department.

(b)

Category. The department may issue a license to carry handguns only of the categories indicated on the applicant's certificate of proficiency issued.

(c)

Effective date of license. A [ license issued before January 1, 1996, is not effective until January 1, 1996. A license issued before January 1, 1996, shall be clearly marked to reflect the date on which it becomes effective. The department shall inform each recipient of a license before that date that the license is not effective until that date. On or after January 1, 1996, a ] license issued under the Act is effective from the date of issuance.

(d)

Form of license. A license to carry a concealed handgun shall include the following information:

(1)

a number assigned to the license holder by the department;

(2)

a statement of the period for which the license is effective;

(3)

a statement of the category or categories of handguns the license holder may carry. The categories of handguns are as follows:

(A)

SA: any handguns, whether semi-automatic or not; and

(B)

NSA: handguns that are not semi-automatic.

(4)

a color photograph of the license holder; and

(5)

the license holder's full name, date of birth, residence address, hair and eye color, height, weight, signature, and the number of a driver's license or an identification certificate issued to the license holder by the department.

§6.21.Renewal of License.

(a)

Grace period. A license holder whose license has expired may submit an application to renew the license up to one year after the expiration of the license. After one year, the license holder will be required to reapply as a new applicant.

(b)

Notice of renewal. Notice of renewal will not be sent to a license holder more than six months prior to the expiration of the license.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 19, 1999.

TRD-9902931

Dudley M. Thomas

Director

Texas Department of Public Safety

Earliest possible date of adoption: July 4, 1999

For further information, please call: (512) 424-2135


37 TAC §6.21

(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Department of Public Safety or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The Texas Department of Public Safety proposes the repeal of §6.21, concerning license to carry concealed handgun. The section is proposed for repeal due to substantial amendments being made. The section is proposed for repeal with simultaneous filing of new §6.21 which clarifies the renewal of license process.

Tom Haas, Chief of Finance, has determined that for each year of the first five-year period the repeal is in effect there will be no fiscal implications to state or local government.

Mr. Haas also has determined that repeal of the rule would have no anticipated economic cost or benefit to the public. The repeal would have no fiscal impact on small or large businesses.

Comments on the proposal may be submitted to Mary Ann Courter, Chief of Legal Services, Texas Department of Public Safety, Box 4087, Austin, Texas 78773-0140, (512) 424-2890.

The repeal is proposed pursuant to Texas Civil Statutes, Article 4413(29ee), §22 (now codified in Texas Government Code, Subchapter H, §411.197) which authorize the department to adopt rules to administer this article.

Texas Civil Statutes, Article 4413(29ee), §22 (now codified in Texas Government Code, Subchapter H, §411.197) is affected by this repeal.

§6.21.Renewal of License.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 19, 1999.

TRD-9902930

Dudley M. Thomas

Director

Texas Department of Public Safety

Earliest possible date of adoption: July 4, 1999

For further information, please call: (512) 424-2135


Subchapter C. Procedures on Denial of License

37 TAC §6.31

The Texas Department of Public Safety proposes an amendment to §6.31, concerning Notice of Denial; Grounds. Amendment to §6.31 is necessary in order for the department to comply with legislative changes to the Concealed Handgun Statute.

Tom Haas, Chief of Finance, has determined that for each year of the first five-year period the rule is in effect there will be no fiscal implications to state or local government.

Mr. Haas also has determined that for each year of the first five-year period the rule is in effect the public benefit anticipated as a result of enforcing or administering the rule will be the licensing of individuals to carry a concealed handgun. There is no anticipated economic cost to small or large businesses. There is no anticipated economic cost to individuals.

Comments on the proposal may be submitted to Mary Ann Courter, Chief of Legal Services, Texas Department of Public Safety, Box 4087, Austin, Texas, 78773-0140, (512) 424-2890.

The amendment is proposed pursuant to Texas Civil Statutes, Article 4413 (29ee), §22 (now codified in Texas Government Code, Subchapter H, §411.197) which authorize the department to adopt rules to administer this article.

Texas Civil Statutes, Article 4413 (29ee), §22 (now codified in Texas Government Code, Subchapter H, §411.197) is affected by this proposal.

§6.31.Notice of Denial; Grounds.

(a)

After the time has elapsed for the department to conduct the application review and background investigation required, the department shall either issue the license, or shall give the applicant written notice of denial. Notice of denial will be mailed to the address currently reported to the department by the applicant, as provided in §6.3 of this title (relating to Correspondence).

(b)

A notice of denial shall state one or more of the following grounds for denial:

(1)

that the applicant failed to qualify under the eligibility criteria listed in the Act[ , §2 ];

(2)

that the director's designee has recommended denial by affidavit submitted to the department under the Act, [ §5(b) ]or;

(3)

That a certified instructor has recommended denial by affidavit submitted to the department under the Act[ , §17 ].

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on May 19, 1999.

TRD-9902932

Dudley M. Thomas

Director

Texas Department of Public Safety

Earliest possible date of adoption: July 4, 1999

For further information, please call: (512) 424-2135


Subchapter D. Time, Place, and Manner Restrictions on License Holders

37 TAC §§6.43-6.45

The Texas Department of Public Safety proposes amendments to §§6.43-6.45, concerning Time, Place, and Manner Restrictions on License Holders. Amendments to the sections are necessary in order for the department to comply with legislative changes to the Concealed Handgun Statute.

Tom Haas, Chief of Finance, has determined that for each year of the first five-year period the rules are in effect there will be no fiscal implications to state or local government as a result of enforcing or administering the rules.

Mr. Haas also has determined that for each year of the first five-year period the rules are in effect the public benefit anticipated as a result of enforcing or administering the rules will be the licensing of individuals to carry a concealed handgun. There is no anticipated economic cost to small or large businesses. There is no anticipated economic cost to individuals.

Comments on the proposal may be submitted to Mary Ann Courter, Chief of Legal Services, Texas Department of Public Safety, Box 4087, Austin, Texas, 78773-0140, (512) 424-2890.

The amendments are proposed pursuant to Texas Civil Statutes, Article 4413 (29ee), §22 (now codified in Texas Government Code, Subchapter H, §411.197) which authorize the department to adopt rules to administer this article.

Texas Civil Statutes, Article 4413 (29ee), §22 (now codified in Texas Government Code, Subchapter H, §411.197) is affected by this proposal.

§6.43.Failure To Display License On Demand.

If a license holder is carrying a handgun on or about the license holder's person, then upon demand by a magistrate or a peace officer that the license holder display identification, the license holder shall display both the license holder's driver's license or identification certificate issued by the department and the license holder's handgun license. The first violation shall result in a 90-day suspension of the license holder's license and the second violation [ Violation ] is a Class B misdemeanor under the Act[ , §6(i) ].

§6.44.Places Prohibited: Felony Violations.

A license holder may not carry a handgun on or about the license holder's person under authority of the Act in the following places:

(1)

On the premises of a business that has a permit or license issued under Alcoholic Beverage Code, Chapters 25, 28, 32, [ or ]69, or 74, , if the business derives 51% or more of its income from the sale or service of alcoholic beverages for on-premises consumption. Posting is required by the Act, but an establishment's failure to post is not a statutory defense to the license holder. Violation is a third degree felony under Texas Penal Code, §46.035.

(2)

On the premises of a correctional facility. No posting is required by the Act. Violation is a third degree felony under Texas Penal Code, §46.035.

(3)

On the physical premises of a school, an educational institution, or a passenger transportation vehicle of a school or an educational institution, whether the school or educational institution is public or private, unless pursuant to written regulations or written authorization of the institution. No posting is required by the Act. Violation is a third degree felony under Texas Penal Code, §46.03.

(4)

On the premises of a polling place on the day of an election or while early voting is in progress. No posting is required by the Act. Violation is a third degree felony under Texas Penal Code, §46.03.

(5)

In any government court or offices utilized by the court, unless pursuant to written regulations or written authorization of the court. No posting is required by the Act. Violation is a third degree felony under Texas Penal Code, §46.03.

(6)

On the premises of a racetrack. No posting is required by the Act. Violation is a third degree felony under Texas Penal Code, §46.03.

(7)

Into a secured area of an airport. No posting is required by the Act. Violation is a third degree felony under Texas Penal Code, §46.03.

§6.45.Places Prohibited: Class A Misdemeanor Violations.

A license holder may not carry a handgun on or about the license holder's person under authority of the Act in the following places:

(1)

On the premises of a hospital licensed under the Health and Safety Code, Chapter 241, unless the license holder has written authorization of the hospital administration. Posting is required by the Act[ , but an establishment's failure to post is not a statutory defense to the license holder ]. Violation is a Class A misdemeanor under Texas Penal Code, §46.035. This subsection shall not apply if the actor was not given effective notice under Texas Penal Code §30.06.

(2)

On the premises of a nursing home licensed under the Health and Safety Code, Chapter 242, unless the license holder has written authorization of the nursing home administration. Posting is required by the Act[ , but an establishment's failure to post is not a statutory defense to the license holder ]. Violation is a Class A misdemeanor under Texas Penal Code, §46.035. This subsection shall not apply if the actor was not given effective notice under Texas Penal Code §30.06.

(3)

On the premises where a high school, collegiate, or professional sporting event is taking place, unless the license holder is a participant in the event and a handgun is used in the event. No posting is required by the Act. Violation is a Class A misdemeanor under Texas Penal Code, §46.035.

(4)

In an amusement park. "Amusement park" means a permanent indoor or outdoor facility or park where amusement rides are available for use by the public that is located in a county with a population of more than one million, encompasses at least 75 acres in surface area, is enclosed with access only through controlled entries, is open for operation more than 120 days in each calendar year, and has security guards on the premises at all times. The term does not include any public or private driveway, street, sidewalk or walkway, parking lot, parking garage, or other parking area. No posting is required by the Act. Violation is a Class A misdemeanor under Texas Penal Code, §46.035. This subsection shall not apply if the actor was not given effective notice under Texas Penal Code §30.06.

(5)

On the premises of a church, synagogue, or other established place of religious worship. No posting is required by the Act. Violation is a Class A misdemeanor under Texas Penal Code, §46.035. This subsection shall not apply if the actor was not given effective notice under Texas Penal Code §30.06.

(6)

At any meeting of a governmental entity. No posting is required by the Act. Violation is a Class A misdemeanor under Texas Penal Code, §46.035. This subsection shall not apply if the actor was not given effective notice under Texas Penal Code §30.06.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on May 19, 1999.

TRD-9902933

Dudley M. Thomas

Director

Texas Department of Public Safety

Earliest possible date of adoption: July 4, 1999

For further information, please call: (512) 424-2135


Subchapter F. Suspension and Revocation Procedures

37 TAC §6.61, §6.63

The Texas Department of Public Safety proposes amendments to §6.61 and §6.63, concerning license to carry concealed handgun. The amendments are necessary in order for the department to comply with legislative amendments to the Concealed Handgun Statute.

Tom Haas, Chief of Finance, has determined that for each year of the first five-year period the rules are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the rules.

Mr. Haas also has determined that for each year of the first five years the rules are in effect the public benefit anticipated as a result of enforcing or administering the rules will be the licensing of individuals to carry a concealed handgun. There is no anticipated economic cost to small or large businesses. There is no anticipated economic cost to individuals.

Comments on the proposal may be submitted to Mary Ann Courter, Chief of Legal Services, Texas Department of Public Safety, Box 4087, Austin, Texas 78773-0140, (512) 424-2890.

The amendments are proposed pursuant to Texas Civil Statutes, Article 4413(29ee), §22 (now codified in Texas Transportation Code, Subchapter H, §411.197) which authorize the department to adopt rules to administer this chapter.

Texas Civil Statutes, Article 4413(29ee), §22 (now codified in Texas Transportation Code, Subchapter H, §411.197) is affected by this proposal.

§6.61.Suspension of License for Violation of the Act.

(a)

Violation report; suspension of license. If any peace officer believes that grounds for suspension exist, the officer shall prepare an affidavit on a form provided by the department stating the reason for the suspension of the license. The officer shall send the department all of the information available to the officer at the time of the preparation of the violation report. The officer shall attach the officer's reports relating to the license holder to the form and send the form and the attachments to the appropriate division of the department at its Austin headquarters not later than the fifth working day after the date the form is prepared. The officer shall send a copy of the form and the attachments to the license holder.

(b)

Notice of suspension; grounds. The department shall give written notice to each license holder of any suspension of that license. A license may be suspended under this section if the license holder:

(1)

is charged with the commission of a Class A or Class B misdemeanor or an offense [ convicted of disorderly conduct ] under Texas Penal Code, §42.01 , or of a felony under an information or indictment ;

(2)

fails to display a license as required by the Act[ , §6(h) and 6(i) ];

(3)

fails to notify the department of a change of address or name as required by the Act[ , §8 ];

(4)

carries a concealed handgun under the authority of the Act of a different category than the license holder is licensed to carry , or ;

[ (5)

has been charged by indictment with the commission of an offense that would make the license holder ineligible for a license on conviction; or]

(5)

[ (6) ] fails to return a previously issued license after such license has been modified as required by the Act[ , §10 (d) ].

(c)

Surrender of license. If the license holder has not surrendered the license or the license was not seized as evidence, the license holder shall surrender the license to the appropriate division of the department not later than the 10th day after the date the license holder received the notice of suspension from the department unless the license holder requests a hearing from the department.

(d)

Hearing request. The license holder may request that the justice court in the justice court precinct in which the license holder resides review the suspension as provided by §6.32 of this title (relating to Request for Hearing; Administrative Review of Denial). If a suspension hearing is held and the court order is ordered by the justice court, the license holder shall surrender the license on the date an order of suspension has been entered by the justice court. If the license holder does not petition the justice court, the suspension takes effect on the 30th day after receipt of written notice.

(e)

Procedure. Suspension hearings shall be conducted in the same manner as hearings on denial.

(f)

Length of suspension. A license may be suspended under this section: [ A license may be suspended for not less than one year and not more than three years. ]

(1)

for 30 days, if the person's license is subject to suspension for failing to notify the department of a change of address or name, for carrying a concealed handgun of a different category than the license holder is licensed to carry, or for failing to return a previously issued license after the license is modified;

(2)

for 90 days, if the person's license is subject to suspension for failing to display the license as required under the Act;

(3)

for not less than one year and not more than three years if the person's license is subject to suspension for any of the above reasons and the person's license has been previously suspended for the same reason; or

(4)

until dismissal of the charges, if the person's license is subject to suspension because the license holder is charged with the commission of a Class A or Class B misdemeanor or an offense under Texas Penal Code §42.01 or of a felony under an information or indictment.

(g)

A license holder whose license expires during a suspension period may renew the license; however, the renewed license will not be issued by the department until the expiration of the suspension period.

§6.63.Revocation of License.

(a)

Violation report; revocation of license. If a peace officer believes that grounds for revocation exist, the peace officer shall prepare an affidavit on a form provided by the department stating the reason for the revocation of the license. The officer shall send the department all of the information available to the peace officer at the time of the preparation of the form. The officer shall attach the officer's reports relating to the license holder to the form and send the form and attachments to the department at its' headquarters in Austin not later than the fifth working day after the date the form is prepared. The officer shall send a copy of the form and the attachments to the license holder.

(b)

Notice of revocation; grounds. The department shall give written notice to each license holder of any revocation of that license. A license may be revoked if the license holder:

(1)

was not entitled to the license at the time it was issued;

(2)

gave false information on the application;

(3)

subsequently becomes ineligible for a license under the Act, §2 , unless the sole basis for the ineligibility is that the license holder is charged with the commission of a Class A or Class B misdemeanor of an offense under Texas Penal Code, §42.01, or of a felony under an information or indictment ; [ or ]

(4)

is convicted of an offense under Texas Penal Code, §46.035 ; or [ . ]

(5)

is determined by the department to have engaged in conduct constituting a reason to suspend the license after the license has been previously suspended twice for the same reason.

(c)

Surrender of license. If the license holder has not surrendered the license or the license was not seized as evidence, the license holder shall surrender the license to the appropriate division of the department not later than the 10th day after the date the license holder receives the notice of revocation from the department, unless the license holder requests a hearing from the department.

(d)

Hearing request. The license holder may request that the justice court in the justice court precinct in which the license holder resides review the revocation as provided by §6.32 of this title (relating to Request for Hearing; Administrative Review of Denial). If a revocation hearing is held and the court order is ordered by the justice court, the license holder shall surrender the license on the date an order of revocation has been entered by the justice court. If the license holder does not petition the justice court, the revocation takes effect on the 30th day after receipt of written notice.

(e)

Procedure. Revocation hearings shall be conducted in the same manner as hearings on denial.

(f)

Length of revocation; reapplication. A license holder whose license has been revoked for a reason listed in this section may reapply as a new applicant for the issuance of a license under the Act after the second anniversary of the date of the revocation if the cause for revocation no longer exists. If the cause of revocation still exists on the date of the second anniversary after the date of revocation, the licensee may not apply for a new license until the cause for the revocation no longer exists and has ceased to exist for a period of two years.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 19, 1999.

TRD-9902934

Dudley M. Thomas

Director

Texas Department of Public Safety

Earliest possible date of adoption: July 4, 1999

For further information, please call: (512) 424-2135


Subchapter G. Certified Handgun Instructors

37 TAC §§6.82, 6.84, 6.95

The Texas Department of Public Safety proposes amendments to §§6.82, 6.84, and 6.95, concerning license to carry concealed handgun. Section 6.82 and §6.84 are amended to comply with legislative changes to the Concealed Handgun Statute. §6.95 is amended to provide a grace period for the acceptance of renewal instructor applications.

Tom Haas, Chief of Finance, has determined that for each year of the first five years the rules are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the rules.

Mr. Haas also has determined that for each year of the first five years the rules are in effect the public benefit anticipated as a result of enforcing or administering the rules will be the licensing of individuals to carry a concealed handgun. There is no anticipated economic cost to small or large businesses. The anticipated cost to individuals is the $100 fee required by the department and successful completion of the retraining courses.

Comments on the proposal may be submitted to Mary Ann Courter, Chief of Legal Services, Texas Department of Public Safety, Box 4087, Austin, Texas 78773-0140, (512) 424-2890.

The amendments are proposed pursuant to Texas Civil Statutes, Article 4413(29ee), §22 (now codified in Texas Government Code, Subchapter H, §411.197) which authorize the department to adopt rules to administer this chapter.

Texas Civil Statutes, Article 4413(29ee), §22 (now codified in Texas Government Code, Subchapter H, §411.197) is affected by this proposal.

§6.82.Instructor Certification.

An instructor applicant who has submitted the required application material, successfully completed training by the department, and who meets the eligibility requirements, may be certified as a handgun instructor by the department. Upon certification, an instructor may conduct training and proficiency examination of license applicants. [ Provided, instructor certification is not effective before September 1, 1995, and provided that course training credit may not be extended to license applicants for training which occurs prior to September 1, 1995. ]

§6.84.Curriculum for License Applicants.

(a)

Certified handgun instructors must instruct license applicants on the basis of the curriculum developed and approved by the department. The department shall develop and distribute directions and materials for course instruction, test administration, and recordkeeping.

(b)

Classroom instruction. The course must include at least 10 hours and not more than 15 hours of instruction on:

(1)

the laws that relate to weapons and to the use of deadly force;

(2)

handgun use, proficiency, and safety;

(3)

nonviolent dispute resolution; and

(4)

proper storage practices for handguns with an emphasis on storage practices that eliminate the possibility of accidental injury to a child.

(c)

Range instruction. The examination must include a physical demonstration of the proficiency in the use of one or more handguns of specific categories and in handgun safety procedures. An applicant may not be certified unless the applicant demonstrates, at a minimum, the degree of proficiency that is required to effectively operate a [ 9 millimeter or a .38 caliber ] handgun of .32 caliber or above .

§6.95.Expiration and Renewal of Instructor Certification.

The certification of a qualified handgun instructor expires on the second anniversary after the date of certification. To renew certification, an instructor must pay a fee of $100 and take and successfully complete the retraining courses required by the department. An instructor whose certificate has expired may renew the certificate up to two years after its expiration. After two years, the instructor must reapply as a new instructor applicant.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 19, 1999.

TRD-9902935

Dudley M. Thomas

Director

Texas Department of Public Safety

Earliest possible date of adoption: July 4, 1999

For further information, please call: (512) 424-2135


Subchapter H. Information and Reports

37 TAC §6.114, §6.118

The Texas Department of Public Safety proposes amendments to §6.114 and §6.118, concerning license to carry concealed handgun. Amendments to the sections are necessary in order for the department to comply with legislative changes to the Concealed Handgun Statute.

Tom Haas, Chief of Finance, has determined that for each year of the first five years the rules are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the rules.

Mr. Haas also has determined that for each year of the first five years the rules are in effect the public benefit anticipated as a result of enforcing the rules will be the licensing of individuals to carry a concealed handgun. There is no anticipated economic cost to small or large businesses. There is no anticipated economic cost to individuals.

Comments on the proposal may be submitted to Mary Ann Courter, Chief of Legal Services, Texas Department of Public Safety, Box 4087, Austin, Texas 78773-0140, (512) 424-2890.

The amendments are proposed pursuant to Texas Civil Statutes, Article 4413(29ee), §22 (now codified in Texas Government Code, Subchapter H, §411.197) which authorize the department to adopt rules to administer this article.

Texas Civil Statutes, Article 4413(29ee), §22 (now codified in Texas Government Code, Subchapter H, §411.197) is affected by this proposal.

§6.114.Confidential Information.

Except as otherwise provided by this subchapter and the Act,[ §21, ] all other records maintained under the Act are confidential and are not subject to required disclosure under the Open Records law, Texas Government Code, Chapter 552, except that an applicant or license holder may be furnished a copy of such disclosable records on request and the payment of a reasonable fee.

§6.118.Reports from Law Enforcement Agencies to the Department.

Local law enforcement agencies in Texas shall maintain records necessary to prepare and submit the concealed handgun incident report form, which reports information regarding incidents in which a person licensed to carry a handgun under the Act [ Texas Civil Statutes, Article 4413 (29ee), ] has been arrested for an offense under Texas Penal Code, §46.035, or commits a reportable discharge of a handgun.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 19, 1999.

TRD-9902936

Dudley M. Thomas

Director

Texas Department of Public Safety

Earliest possible date of adoption: July 4, 1999

For further information, please call: (512) 424-2135


Chapter 11. Commercial Vehicle Registration

Subchapter A. Commercial Vehicle Registration Enforcement

37 TAC §§11.1, 11.5

The Texas Department of Public Safety proposes amendments to §11.1 and §11.5, concerning Commercial Vehicle Registration Enforcement. The amendments are necessary to reflect changes resulting from the re-codification of Texas Civil Statutes to Texas Transportation Code and the repeal of Texas Civil Statutes, Articles 911b and 6701c-1.

Tom Haas, Chief of Finance, has determined that for each year of the first five-year period the rules are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the rules.

Mr. Haas also has determined that for each year of the first five-year period the rules are in effect the public benefit anticipated as a result of enforcing the rules will be to ensure greater compliance with commercial vehicle registration and weight enforcement. The cost of compliance for small businesses is the same as the cost of compliance for large businesses. There is no anticipated economic cost to individuals.

Comments on the proposal may be submitted to Mary Ann Courter, Chief of Legal Services, Texas Department of Public Safety, Box 4087, Austin, Texas, 78773-0140, (512) 424-2890.

The amendments are proposed pursuant to Texas Government Code, §411.006(4) and §411.018, which provide the director of the Texas Department of Public Safety with the authority to establish rules for the conduct of the work of the Texas Department of Public Safety.

Texas Government Code, §411.006(4) and §411.018 are affected by this proposal.

§11.1.Basic Enforcement Guidelines.

The Department of Public Safety is charged with the responsibility of enforcing registration requirements of commercial vehicles. This enforcement will be based on the statutory provisions of Texas Transportation Code, Chapter 502, [ Civil Statutes, Article 6675a ] and on policies and reciprocal agreements promulgated by the Texas Department of Transportation, as amended.

§11.5.Basic Enforcement Guidelines for Enforcement Registration and Permit Requirements of Oil Well Servicing Equipment.

The Department of Public Safety, under the authority of Government Code, Chapter 411, §411.002, is charged with the responsibility of enforcing laws protecting public safety, including, but not limited to the registration requirements. This enforcement will be based on the statutory provisions of Texas Transportation Code, §§623.141-623.150 [ Civil Statutes, Articles 6701d-11 and 6701d-16 ] and the rules promulgated by the Texas Department of Transportation, as amended.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on May 19, 1999.

TRD-9902937

Dudley M. Thomas

Director

Texas Department of Public Safety

Earliest possible date of adoption: July 4, 1999

For further information, please call: (512) 424-2135


Subchapter B. Lease Requirements for Commercial Motor Vehicles

37 TAC §11.28

(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Department of Public Safety or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The Texas Department of Public Safety proposes the repeal of Subchapter B and §11.28, concerning Lease Requirements for Commercial Motor Vehicles.

The General Appropriations Act, House Bill 1, Article IX, Rider 167, passed by the 75th Legislature, requires each state agency to review and consider for readoption each rule adopted by that agency pursuant to the Texas Government Code, Chapter 2001 (Administrative Procedure Act). The subchapter title and section are proposed for repeal because the reason for adopting them no longer exists.

Tom Haas, Chief of Finance, has determined that for each year of the first five-year period the repeal is in effect there will be no fiscal implications to state or local government.

Mr. Haas also has determined that repeal of the rule would have no anticipated economic cost or benefit to the public. The repeal would have no fiscal impact on small or large businesses.

Comments on the repeal may be submitted to Mary Ann Courter, Chief of Legal Services, Texas Department of Public Safety, Box 4087, Austin, Texas, 78773-0140, (512) 424-2890.

The repeal is proposed pursuant to Texas Government Code, §411.006(4), and §411.018, which provides the director of the Texas Department of Public Safety with the authority to establish rules for the conduct of the work of the Texas Department of Public Safety.

Texas Government Code, §411.006(4) and §411.018 are affected by this proposal.

§11.28.Mailing Address to File Lease, Memorandum, or Agreement.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on May 19, 1999.

TRD-9902938

Dudley M. Thomas

Director

Texas Department of Public Safety

Earliest possible date of adoption: July 4, 1999

For further information, please call: (512) 424-2135


Subchapter C. Motor Carrier Enforcement Guidelines

37 TAC §§11.41-11.44

(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Department of Public Safety or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The Texas Department of Public Safety proposes the repeal of Subchapter C and §§11.41-11.44, concerning Motor Carrier Enforcement Guidelines.

The General Appropriations Act, House Bill 1, Article IX, Rider 167, passed by the 75th Legislature, requires each state agency to review and consider for readoption each rule adopted by that agency pursuant to the Texas Government Code, Chapter 2001, (Administrative Procedure Act). The subchapter title and sections are proposed for repeal because the reason for adopting them no longer exists.

Tom Haas, Chief of Finance, has determined that for each year of the first five-year period the repeal is in effect there will be no fiscal implications to state or local government.

Mr. Haas also has determined that repeal of the rule would have no anticipated economic cost or benefit to the public. The repeal would have no fiscal impact on small or large businesses.

Comments on the repeal may be submitted to Mary Ann Courter, Chief of Legal Services, Texas Department of Public Safety, Box 4087, Austin, Texas, 78773-0140, (512) 424-2890.

The repeals are proposed pursuant to Texas Government Code, §411.006(4), and §411.018, which provides the director of the Texas Department of Public Safety with the authority to establish rules for the conduct of the work of the Texas Department of Public Safety.

Texas Government Code, §411.006(4) and §411.018 are affected by this proposal.

§11.41.Adoption of the Texas Railroad Commission Motor Transportation Regulations, as Amended.

§11.42.Display and Use of Railroad Commission Identification Card.

§11.43.Motor Carriers Operating Under Temporary Authority.

§11.44.Drive-Away Operators.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on May 19, 1999.

TRD-9902939

Dudley M. Thomas

Director

Texas Department of Public Safety

Earliest possible date of adoption: July 4, 1999

For further information, please call: (512) 424-2135


Subchapter D. Weight Law Enforcement

37 TAC §11.51, §11.52

The Texas Department of Public Safety proposes amendments to §11.51 and §11.52, concerning Weight Law Enforcement. The amendments are necessary to reflect changes resulting from the re-codification of Texas Civil Statutes to Texas Transportation Code and the repeal of Texas Civil Statutes, Articles 911b and 6701c-1.

Tom Haas, Chief of Finance, has determined that for each year of the first five-year period the rules are in effect there will be no fiscal implications for state or local government.

Mr. Haas also has determined that for each year of the first five-year period the rules are in effect the public benefit anticipated as a result of enforcing or administering the rules will be to ensure greater compliance with commercial vehicle registration and weight enforcement. The cost of compliance for small businesses is the same as the cost of compliance for large businesses. There is no anticipated economic cost to individuals.

Comments on the proposal may be submitted to Mary Ann Courter, Chief of Legal Services, Texas Department of Public Safety, Box 4087, Austin, Texas, 78773-0140, (512) 424-2890.

The amendments are proposed pursuant to Texas Government Code, §411.006(4) and §411.018, which provide the director of the Texas Department of Public with the authority to establish rules for the conduct of the work of the Texas Department of Public Safety.

Texas Government Code, §411.006(4) and §411.018 are affected by this proposal.

§11.51.Stopping, Weighing, and Reducing Excess Cargo of Loaded Motor Vehicles.

(a)

The department of public safety will stop, weigh, and cause the excess loads to be reduced relating to the operation of loaded motor vehicles in compliance with the provisions of the statutes.

(b)

It is the policy of the department of public safety to consider loaded trailers and semitrailers operated in combination with a truck or truck tractor to be a part of a loaded motor vehicle and would, therefore, be required to comply with the weighing and unloading provisions of Texas Transportation Code, Chapter 621 [ Civil Statutes, Article 6701d-11 ].

§11.52.Rearranging Excess Cargo.

The department of public safety interprets Texas Transportation Code, §621.404 [ sections 5 and 6 ] to mean that cargo may not be shifted from an overloaded axle or tandem axle to another axle or tandem axle that is already loaded to its maximum legal limit.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on May 19, 1999.

TRD-9902940

Dudley M. Thomas

Director

Texas Department of Public Safety

Earliest possible date of adoption: July 4, 1999

For further information, please call: (512) 424-2135


Chapter 14. School Bus Transportation

Subchapter E. Advertising General Provisions

37 TAC §§14.61-14.67

The Texas Department of Public Safety proposes new §§14.61-14.67, concerning requirements for placing advertising or paid announcements on the exterior of school buses transporting public school students. These new sections set forth the allowable materials and locations of advertising or paid announcements on the exterior of public school buses and define terms commonly used in the profession. These sections are proposed to define what a person must do to place advertising or paid announcements on the exterior of school buses transporting public school students in order to comply with the safety provisions of House Bill 3249, 75th Legislature, 1997, which amended Texas Transportation Code, §547.701(d).

The proposals are necessary to implement the provisions of House Bill 3249, 75th Legislature, 1997, which amended Texas Transportation Code, §547.701(d). This statute prohibits a school bus from bearing advertising or another paid announcement directed at the public if the advertising or announcement distracts from the effectiveness of required safety warning equipment in order to protect the safety of students who are transported on public school buses. The statute further directs the department to adopt rules to implement the statute.

Tom Haas, Chief of Finance, has determined that for the first five-year period the sections are in effect, there will be no fiscal implications for state government as a result of enforcing or administering the sections. Mr. Haas has also determined that for the first five-year period the sections are in effect, there will be fiscal implications for local government if the school districts enter a contract to advertise; however, the fiscal implications of revenues cannot be determined due to the individuality of contract negotiated terms.

Mr. Haas also has determined that for each year of the first five years the sections are in effect, the public benefit anticipated as a result of enforcing the sections will be the potential for additional revenues to the local school district generated as a result of placing advertising or paid announcements from small or large businesses on the exterior of school buses. The anticipated economic cost of expense to persons who contract to advertise and are subsequently required to comply with the sections as proposed cannot be determined due to the individuality of contract negotiated terms.

Comments on the proposal may be submitted to Mary Ann Courter, Chief of Legal Services, Texas Department of Public Safety, Box 4087, Austin, Texas 78773-0140, (512) 424-2890.

The new sections are proposed pursuant to Texas Transportation Code, §547.101, which authorizes the department to adopt rules necessary to administer this chapter.

Texas Transportation Code, §547.101 is affected by this proposal.

§14.61. Definitions.

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

(1)

Advertisement - any communication brought to the attention of the public by paid announcement or in return for public recognition in connection with an event or offer or sale of a product or service, except for a single-line listing of a carrier name or manufacturer logo approved by the General Services Commission and the Texas Department of Public Safety.

(2)

Safety Warning Equipment - that equipment which identifies a school bus including, but not limited to, the exterior color of the school bus painted national school bus yellow (Color No. 13432 of Federal Standard No. 595a), all lights, reflectors, "school bus" identification markings, emergency exit locations, stop signal arm, student crossing gate and reflective tape described in the General Services Commission annual manual, Texas School Bus Specifications .

§14.62. Applicability.

These rules apply to all school buses used to transport preprimary, primary, and secondary public school students.

§14.63. Material and Attachment.

(a)

Advertisements must be of a durable material or paint.

(b)

If the advertisement is removed or substantially damaged to the point that it is no longer in a serviceable condition, the school bus shall be returned to its original color or the advertisement shall be replaced.

(c)

The advertisement shall not extend from the body intentionally or due to damage so as to allow a handhold or present a danger to pedestrians.

(d)

No brackets or hardware shall be applied to the exterior of a school bus to hold advertisements.

§14.64. Location.

(a)

The location of an advertisement(s) on the exterior of a school bus shall be limited to:

(1)

the left rear quarter-panel of the school bus, beginning at least three inches behind the rear wheel and not closer than four inches from the lower edge of the window line; and

(2)

above the windows on the right and left sides of the school bus, near the rear of the vehicle, not to extend forward of the rear axle.

(b)

Advertisement(s) shall be at least three inches from any required lettering, lamp, wheel well, reflector, or emergency exit location.

(c)

Advertisement(s) shall not be placed on or interfere with the operation of any door, window, lamp, reflector, or other device.

(d)

Any reflective tape between the floorline and beltline of the school bus which is covered by an advertisement should be replaced above or below the advertisement.

§14.65. Permitted Space.

(a)

The maximum covered area allowed for advertising on the left rear quarter panel of a school bus shall be contained within a block 30 inches in height and 90 inches in length.

(b)

The maximum covered area allowed for advertising above the windows on the left and right sides of the school bus shall be contained within a block 18 inches in height and 108 inches in length, per side.

§14.66. Exemption.

(a)

A school district which has entered into a contract to advertise on the exterior of their school buses at the time these rules become effective, will be exempted from required compliance until:

(1)

the expiration date of the contract; or

(2)

one year from the effective date of these rules; whichever event occurs earlier in time.

(b)

Subsequently, the school district will be required to fully comply with these rules.

§14.67. Reporting.

(a)

It shall be the responsibility of the school district to provide to the School Bus Transportation Safety Unit at the Texas Department of Public Safety written notification of:

(1)

the number of school buses displaying exterior advertising or another paid announcement operated by or for the school district; and

(2)

any accident directly or indirectly involving a school bus operated by or for the school district which bears advertising or another paid announcement on the exterior of the vehicle.

(A)

A school bus directly involved accident is a motor vehicle accident in which a school bus, with or without a pupil on board, is involved directly as a contact vehicle.

(B)

A school bus indirectly involved accident is a motor vehicle accident in which a school bus, with or without a pupil on board, is involved indirectly as a noncontact vehicle. Some examples of the school bus as a non-contact vehicle indirectly involved in an accident include:

(i)

a collision accident or non collision accident involving a motor vehicle passing a school bus stopped and with its red lights flashing; or

(ii)

a collision accident in which a child approaching or leaving a school bus, stopped and with its red lights flashing, is struck; or

(iii)

a collision accident involving a motor vehicle lawfully stopped for a school bus stopped and with its red lights flashing.

(b)

Notice shall be received by the department each September reporting the number of school buses bearing advertising or another paid announcement on the exterior of the vehicle. Only school districts involved in an advertising program are required to report.

(c)

Notice shall be received by the department not more than five days from the date of the accident. Notice shall include the following:

(1)

the name and address of the owner of the school bus,

(2)

the name and driver's license number of the school bus operator,

(3)

the date of the accident,

(4)

the city or county where the accident occurred, and

(5)

the investigating police agency.

(d)

Notice shall be delivered by one of the following methods:

(1)

facsimile;

(2)

electronic mail; or

(3)

mailed to the School Bus Transportation Safety Unit, Texas Department of Public Safety, Box 4087, Austin, TX 78773-0252.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on May 19, 1999.

TRD-9902927

Dudley M. Thomas

Director

Texas Department of Public Safety

Earliest possible date of adoption: July 4, 1999

For further information, please call: (512) 424-2135


Chapter 17. Administrative License Revocation

37 TAC §§17.1-17.6

(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Department of Public Safety or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The Texas Department of Public Safety proposes the repeal of §§17.1-17.16, concerning Administrative License Revocation ("ALR"). The department is proposing repeal of these sections due to substantive amendments being made. This action is being filed simultaneously with a proposal for new sections concerning ALR. The new sections will set forth procedures relating to definitions, issuance of notice of suspension, administrative suspension in an uncontested case, request for hearing and witnesses in a contested case, enforcement of suspension and reinstatement of license. In addition, the sections will reflect the changes in statute from Texas Civil Statutes to Texas Transportation Code and will encompass "zero tolerance" legislation involving minors.

Tom Haas, Chief of Finance, has determined that for each year of the first five-year period the repeals are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the repeals.

Mr. Haas also has determined that for each year of the first five-year period the repeals are in effect the public benefit anticipated as a result of enforcing the repeals will be compliance with existing statutory requirements. There will be no effect on small or large businesses. There is no anticipated economic cost to persons who are required to comply with the repeals as proposed.

Comments on the proposal may be submitted to Mary Ann Courter, Chief of Legal Services, Texas Department of Public Safety, Box 4087, Austin, Texas 78773-0140, (512) 424-2890.

The repeals are proposed pursuant to Texas Transportation Code, Chapter 522, Chapter 524, and Chapter 724, which provide the department and the State Office of Administrative Hearings shall adopt rules to administer this chapter.

The repeals affect Texas Transportation Code, Chapter 522, Chapter 524, and Chapter 724.

§17.1. Scope.

§17.2. Definitions.

§17.3. Notice of Suspension.

§17.4. ALR Reports.

§17.5. Intake.

§17.6. Rescission.

§17.7. Administrative Suspension of Driver's License.

§17.8. Hearing Requests.

§17.9. Hearings.

§17.10. Out-Of-State Orders and Judgments.

§17.11. Appeals.

§17.12. Final Order Of Suspension.

§17.13. Effect of Acquittal: Notification to the Department.

§17.14. Enforcement Of Suspensions.

§17.15. Reinstatement.

§17.16. Service on the Department of Certain Items Required to be Served on, Mailed to, or Filed With the Department.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on May 19, 1999.

TRD-9902941

Dudley M. Thomas

Director

Texas Department of Public Safety

Earliest possible date of adoption: July 4, 1999

For further information, please call: (512) 424-2135


The Texas Department of Public Safety proposes new §§17.1-17.16, concerning Administrative License Revocation ("ALR"). This action is being filed simultaneously with a proposal for repeal of existing sections concerning ALR. The new sections promulgate the procedures relating to issuance of notice of suspensions, administrative suspension in an uncontested case, request for hearing and witnesses in a contested case, enforcement of suspension, and reinstatement of license. The new sections further reflect changes in statute from Texas Civil Statutes to the Texas Transportation Code and will encompass "zero tolerance" legislation involving minors.

Tom Haas, Chief of Finance, has determined that for each year of the first five-year period the sections are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the sections.

Mr. Haas also has determined that for each year of the first five-year period the sections are in effect the public benefit anticipated as a result of enforcing the sections will be efficiency in driver improvement and enhanced public safety on public highways. There will be no effect on small or large businesses. The anticipated economic cost to individuals who are required to comply with the sections as proposed will be a reinstatement fee of $100.

Comments on the proposal may be submitted to Mary Ann Courter, Chief of Legal Services, Texas Department of Public Safety, Box 4087, Austin, Texas 78773-0140, (512) 424-2890.

The new sections are proposed pursuant to Texas Transportation Code, Chapter 522, Chapter 524, and Chapter 724, which provide the department and the State Office of Administrative Hearings shall adopt rules to administer this chapter.

Texas Transportation Code, Chapter 522, Chapter 524, and Chapter 724 are affected by this proposal.

§17.1. Scope.

The procedures for notice, hearing, and appeal, as well as the procedures for service of the requests, notifications, copies, certified copies, or tangible/documentary evidence, as the case may be, which are contained in this title apply to suspensions, disqualifications, and denials arising under the provisions of Administrative License Revocation (ALR), including Texas Transportation Code, Chapters 522, 524, and 724.

§17.2. Definitions.

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

(1)

Acquittal - A legal judgment or certification of "not guilty" of a person charged with a crime, including a judgment following directed verdict, in a court proceeding at which jeopardy attached.

(2)

Address of record - A person's most recent residence address as shown by the records of the department in accordance with Texas Transportation Code, Chapter 521; or an alternate address provided to the department in accordance with Texas Transportation Code, Chapter 521.

(3)

Administrative License Revocation (ALR) - Refers to the suspension of a driver's license under Texas Transportation Code, Chapter 524 or Chapter 724, or the disqualification of a person's privilege to drive a commercial motor vehicle under Texas Transportation Code, Chapter 522.

(4)

Adult - An individual 21 years of age or older.

(5)

Alcohol concentration - Has the meaning contained in Texas Penal Code, §49.01.

(6)

Alcohol-related or drug-related enforcement contact - Has the meaning contained in Texas Transportation Code, Chapter 524.

(7)

ALR contact - Refers to refusal to submit a breath or blood specimen as provided by Texas Transportation Code, Chapter 724, or refusal to submit a breath, blood or urine specimen as provided by Texas Transportation Code, Chapter 522; or a breath or blood test failure as provided by Texas Transportation Code, Chapter 524, or a breath, blood or urine test failure as provided by Texas Transportation Code, Chapter 522. Also includes the situation where a specimen test is not requested of a minor, as the presence of alcohol was detected by other means.

(8)

ALR report - A sworn report of an ALR contact filed by a peace officer and submitted to the department in accordance with Texas Transportation Code, Chapter 524, or a written report of an ALR contact submitted to the department in accordance with Texas Transportation Code, Chapter 724. Also includes a sworn report submitted by a peace officer in accordance with Texas Transportation Code, Chapter 522.

(9)

ALR suspension or ALR license suspension - A suspension under Texas Transportation Code, Chapter 524 or Chapter 724.

(10)

Arresting officer - Refers to a certified Texas peace officer who arrests a person for an offense under Texas Penal Code, §49.04, §49.07, or §49.08, or Alcoholic Beverage Code, §106.041, or any other offense against the laws of the State of Texas.

(11)

Breath alcohol test - Has the meaning assigned in §19.7 of this title (relating to Explanation of Terms and Actions).

(12)

Breath test operator - Refers to the individual who takes a specimen of the person's breath to determine alcohol concentration.

(13)

Child - Has the meaning contained in Texas Family Code, §51.02(2).

(14)

Commercial driver's license - Has the meaning assigned by Texas Transportation Code, Chapter 522 and Chapter 16 of this title (relating to Commercial Driver's License).

(15)

Commercial motor vehicle - has the meaning assigned by Texas Transportation Code, Chapter 522 and Chapter 16 of this title (relating to Commercial Driver's License).

(16)

Criminal complaint - Refers to any charging instrument, including, but not limited to, a complaint, an information, an indictment, or a similar sworn document clearly indicating an intent to proceed with criminal prosecution.

(17)

Current address - Refers to the address given to an arresting officer by an arrested driver at the time of arrest, as distinguished from the "address of record."

(18)

Defendant - Refers to a person who has received notice of ALR license suspension or disqualification and who has timely requested a hearing.

(19)

Denial - Refers to the loss of the privilege to obtain a driver's license or permit.

(20)

Department - Has the meaning assigned in Texas Transportation Code, Chapter 524.

(21)

Director - Has the meaning assigned in Texas Transportation Code, Chapter 524.

(22)

Disqualification - Has the meaning assigned in Texas Transportation Code, Chapter 522.

(23)

Driver - Has the meaning assigned in Texas Transportation Code, Chapter 521.

(24)

Driver's license - Has the meaning assigned in Texas Transportation Code, Chapter 521.

(25)

Failure, or breath, blood or urine test failure - Refers to the analysis of a test specimen of breath or blood which indicates an alcohol concentration specified in Texas Penal Code, §49.01(2)(B), or where a test specimen of breath, blood or urine is provided pursuant to Texas Transportation Code, Chapter 522, and the analysis of the specimen indicates an alcohol concentration of 0.04 or more. Also includes the analysis of a test specimen provided by a minor that indicates any detectable amount of alcohol as specified in Texas Transportation Code, §524.011(a)(2)(B).

(26)

Instrument or breath test instrument - Has the meaning assigned in §19.7(i) of this title (relating to Explanation of Terms and Actions).

(27)

License or license to operate a motor vehicle - Has the meaning assigned in Texas Transportation Code, Chapter 521.

(28)

Maintenance records - Refers to records pertaining to the inspection, maintenance, repair, and upkeep of the breath test instrument on which the driver's alcohol concentration was measured. Maintenance records do not have a regulated format and may be kept in a form as designated by each technical supervisor.

(29)

Minor - An individual under 21 years of age.

(30)

Nonresident - Has the meaning assigned in Texas Transportation Code, Chapter 521.

(31)

Peace Officer - Has the meaning assigned in Texas Penal Code, §1.07(a).

(32)

Peace Officer's sworn report or probable cause affidavit - A statement in support of a peace officer's belief that a person committed an offense. This statement shall describe the officer's reasonable suspicion for making contact with a person and/or the probable cause to arrest or detain the person. This statement may additionally include any other grounds known to the officer for believing the person committed the offense. The peace officer's sworn report or probable cause affidavit is normally submitted on Form DIC-23, or an approved alternate form.

(33)

Person - Refers to the following: an individual arrested for a violation of Texas Penal Code, §49.04, §49.07, or §49.08; a minor arrested or detained for a violation of Texas Alcoholic Beverage Code, §106.041; or the operator of a commercial motor vehicle who refused to provide a specimen of breath, blood or urine when requested to do so by a peace officer, or who provided a specimen with an alcohol concentration defined in Texas Transportation Code, Chapter 522, whether or not the operator of the commercial motor vehicle was arrested for a violation of Texas Penal Code, §49.04, §49.07, or §49.08.

(34)

Public place - Has the meaning assigned in Texas Transportation Code, Chapter 524.

(35)

Refusal - Refers to a refusal to submit a specimen under the provisions of Texas Transportation Code, Chapter 522 or Chapter 724.

(36)

Revocation of driver's license - Has the meaning assigned in Texas Transportation Code, Chapter 521.

(37)

Suspension of driver's license - Has the meaning assigned in Texas Transportation Code, Chapter 521.

(38)

Technical supervisor or certified breath test technical supervisor - Refers to the person who is responsible for maintaining and directing the operation of the breath test instrument used to analyze the specimen of the person's breath, and who has been certified by the department under the provisions of §19.5 of this title (relating to Technical Supervisor certification).

(39)

Test record or breath alcohol test record - Means the record of a breath alcohol test generated by a breath test instrument.

§17.3. Notice of Suspension or Disqualification.

(a)

Notice of an ALR suspension or disqualification. Notice of an ALR suspension or disqualification may be served either by a peace officer or by the department.

(b)

Notice given by a peace officer.

(1)

If a person arrested for an offense under Texas Penal Code, §49.04, §49.07, or §49.08, submits to the taking of a specimen of breath or blood and an analysis of the specimen shows the person had an alcohol concentration of a level specified in Texas Penal Code, §49.01(2)(B), the peace officer shall personally serve notice of driver's license suspension on the arrested driver.

(2)

If the person is a minor arrested for an offense under Alcoholic Beverage Code, §106.041, or under Texas Penal Code, §49.04, §49.07, or §49.08, who either submits to the taking of a specimen and an analysis of the specimen shows that the minor had an alcohol concentration of a level specified by Texas Transportation Code, §524.011(a)(2)(B), or is not requested to submit to the taking of a specimen, the peace officer shall personally serve notice of driver's license suspension on the minor.

(3)

If a person was operating a commercial motor vehicle and submits to the taking of a specimen of breath, blood or urine as provided by Texas Transportation Code, Chapter 522, and an analysis of the specimen shows an alcohol concentration of 0.04 or more, the peace officer shall personally serve notice of disqualification on the person.

(4)

Pursuant to paragraphs (1), (2), and (3) of this subsection, if a specimen is taken and the analysis of the specimen is not returned to the peace officer before the person is admitted to bail, released from custody, delivered as provided by Title 3, Family Code, or committed to jail, the arresting officer shall attempt to serve notice of driver's license suspension or disqualification by personally delivering the notice to the person.

(5)

If a person arrested for an offense under Texas Penal Code, §49.04, §49.07, §49.08, or an offense under Texas Alcoholic Beverage Code, §106.041, or a person requested to submit a breath, blood or urine specimen under Texas Transportation Code, Chapter 522, refuses to give a specimen as designated by the peace officer, the officer shall personally serve notice of driver's license suspension or disqualification on the person.

(c)

Notice given by the department. In the event that the arresting officer did not serve notice of suspension or disqualification on the person following an ALR contact, the department shall send, by certified mail, notice of suspension or disqualification to the person's address of record, and to the person's current address given in the ALR report if different. If the department cannot verify that proper notice of suspension was served on the person by a peace officer following an ALR contact, the department may serve notice of suspension or disqualification. Notice is presumed received on the fifth day after the date it is mailed.

(d)

Notice given by the department to control. In any case where notice of suspension or disqualification is served by the arresting officer and notice of suspension or disqualification is also sent by the department, notice sent by the department shall be controlling.

§17.4. ALR Reports.

Following an ALR contact, the peace officer shall submit an ALR report to the department on a form approved by the department.

(1)

ALR Reports: breath, blood or urine test refusal. This section applies to offenses under Texas Penal Code, §49.04, §49.07, §49.08, Texas Transportation Code, Chapter 522, or Texas Alcoholic Beverage Code, §106.041. An ALR report based on a breath, blood or urine test refusal shall contain the following information:

(A)

The identity of the person by full legal name, date of birth, and driver's license number, if any;

(B)

the peace officer's sworn report or probable cause affidavit (Form DIC-23 and/or Form DIC-54);

(C)

a copy of the statutory warning delivered to the person prior to requesting a specimen of breath or blood (Form DIC-24) and/or a copy of the statutory warning for commercial motor vehicle operators delivered to the person prior to requesting a specimen of breath, blood or urine (Form DIC-55);

(D)

the person's current address;

(E)

documentation of the refusal (Form DIC-24 and/or Form DIC-55), as evidenced by:

(i)

a written refusal to give a specimen, signed by the person; or

(ii)

a statement signed by the officer stating that the person refused to give a specimen and also refused to sign the statement requested by the officer under Texas Transportation Code, §724.031.

(F)

the notice of suspension (Form DIC-25) served and/or the notice of disqualification (Form DIC-57); and

(G)

any other information required by the department on its approved form.

(2)

ALR Reports: breath, blood or urine test failures. This section applies to offenses under Texas Penal Code, §49.04, §49.07, §49.08, Texas Transportation Code, Chapter 522, or Alcoholic Beverage Code, §106.041. An ALR report based on a breath, blood or urine test failure shall be sworn to by the arresting officer (or by the peace officer requesting the specimen in the case of a commercial motor vehicle operator who is not arrested) and shall contain the following information:

(A)

The identity of the person by full legal name, date of birth, and driver's license number, if any;

(B)

the peace officer's sworn report or probable cause affidavit (Form DIC-23 and/or Form DIC-54);

(C)

a copy of the statutory warning delivered to the person prior to requesting a specimen of breath or blood (Form DIC-24) and/or a copy of the statutory warning for commercial motor vehicle operators delivered to the person prior to requesting a specimen of breath, blood or urine (Form DIC-55);

(D)

the person's current address;

(E)

a copy of the analysis of the specimen, such as a photocopy of the breath test result; and

(F)

the notice of suspension (Form DIC-25) served and/or the notice of disqualification (Form DIC-57); and

(G)

a copy of the criminal complaint, if any, that has been filed with a magistrate or delivered to a local prosecuting attorney with jurisdiction over the offense; and

(H)

any other information required by the department on its approved form.

(3)

ALR Reports: offense under Alcoholic Beverage Code, §106.041, no specimen requested. An ALR report shall contain the following information:

(A)

identity of the person by full legal name, date of birth, and driver's license number, if any;

(B)

the peace officer's sworn report or probable cause affidavit (Form DIC-23);

(C)

the person's current address;

(D)

the notice of suspension served (Form DIC-25);

(E)

a copy of the criminal complaint, if any, that has been filed with a magistrate or delivered to a local prosecuting attorney with jurisdiction over the offense; and

(F)

any other information required by the department on its approved form.

§17.5. Intake.

(a)

the department may reject any ALR report and decline to prosecute any ALR suspension or disqualification.

(b)

For purposes of an ALR suspension or disqualification based on a breath test failure, a valid breath alcohol test record is required. To be considered valid, the breath test record must meet the following criteria:

(1)

There must be no "invalid" message.

(2)

Results must be clearly printed.

(3)

All air blanks must be 0.000.

(4)

The test record must bear the signature of the breath test operator.

(c)

No additional report, memo, record, or maintenance record is required to validate the breath alcohol test.

§17.6. Rescission.

(a)

The department may rescind any ALR suspension or disqualification.

(b)

If for any reason the department declines to prosecute an ALR suspension or disqualification, or rescinds said action after imposition, the department shall send notice of rescission to the person at his/her address of record, and current address, if different.

(c)

A decision by the department to rescind notice of suspension or disqualification has no binding precedential value and the department may later prosecute a suspension or disqualification arising out of the same incident.

§17.7. Administrative Suspension or Disqualification of Driver's License.

After notice of suspension and/or disqualification has been properly served, the department shall impose a suspension or disqualification as provided by law, unless the person makes a timely hearing request as provided in §17.8 of this title (relating to Hearing Requests).

§17.8. Hearing Requests.

A person who receives notice of suspension or disqualification may request a hearing as provided.

(1)

A hearing request must either be delivered in writing, including by facsimile transmission, or be transmitted by telephone, to the department at its headquarters in Austin at the address or phone number contained in the notice of suspension or disqualification. Hearing requests delivered to any other department address or telephone number will not be honored.

(2)

A hearing request must contain sufficient information to enable the department to identify the defendant and to schedule the hearing, which information shall include the following: the defendant's full legal name, date of birth, driver's license number, the date of arrest, the county of arrest, the name of the law enforcement agency which made the arrest, whether the defendant allegedly failed or refused the specimen test or was not requested to submit a specimen, and such additional nonprivileged information as may be requested by the department.

(3)

A hearing request must be timely. In order to be considered timely, a hearing request containing all of the information set forth in paragraph (2) of this section must be received by the department at its headquarters in Austin at the address or phone number contained in the notice of suspension not later than 5:00 p.m. on the 15th day after:

(A)

the date notice of suspension or disqualification was served by a peace officer; or

(B)

the date notice is presumed to have been received, according to the records of the department.

(4)

A hearing request which fails to include one or more of the items of information required by paragraph (2) of this section, or one containing incorrect information, will not be deemed to be timely filed. Nothing in this section is intended to prevent a person making a hearing request from supplementing or correcting information contained in a hearing request, provided that such supplementation or correction is received by the department before the deadline for filing a hearing request as set out in paragraph (3) of this section.

(5)

The department shall reject any untimely hearing request. When a written hearing request is received and rejected, the department shall mail written notice to the defendant that the hearing request was received and rejected, and state the reason for rejection. When a telephone hearing request is received and rejected, the department shall mail a written notice of the reason for rejection only upon request.

(6)

Upon receipt of a timely hearing request, the department shall schedule a hearing and mail written confirmation to the defendant.

(7)

A timely hearing request stays the suspension or disqualification pending a final affirmative decision by the administrative law judge.

(8)

The department will presume that notice of hearing date, time, and location was received on the fifth day after the day it was mailed.

§17.9. Hearings.

ALR hearings shall be held in accordance with Texas Transportation Code, Chapter 524, and in accordance with 1 Texas Administrative Code, Chapter 159.

§17.10. Out-Of-State Orders and Judgments.

The department shall give full faith and credit to convictions, suspensions, denials, and disqualifications arising in other states.

§17.11. Appeals.

(a)

Upon receipt of an appeal petition, the department shall determine whether the defendant is entitled to a 90-day stay of suspension or disqualification pending appeal, in accordance with Texas Transportation Code, Chapter 524. For purposes of determining whether an appeal stays a suspension, the department will consider prior alcohol-related and drug-related enforcement contacts. For purposes of this subsection, alcohol-related and drug-related enforcement contacts occurring both prior to and after the effective date of ALR shall be considered. The date of a prior alcohol-related or drug-related enforcement contact, not the date of the conduct, shall be controlling.

(b)

If a stay is granted pending appeal, it shall be effective from the date the petition is filed, not from the date of hearing or decision of the administrative law judge.

(c)

A remand does not stay the suspension or disqualification.

(d)

To perfect service on the department of a judicial appeal of a final order in a contested ALR case pursuant to 1 TAC §159.37 (relating to Appeal of Judge's Decision) and this section, a defendant must send by certified mail a file-stamped copy of the defendant's appeal petition, certified by the clerk of the court in which the petition is filed, to the department at its headquarters in Austin. The certified copy must be addressed and mailed to Director of Hearings, ALR Program, Box 15327, Austin, Texas 78761-5327. A suspension will not be stayed until service is perfected according to this subsection.

(e)

If an affirmative finding by an administrative law judge is reversed on appeal, the appellant shall notify the department by mailing a file-stamped copy of the judgment from the appellate court to the department, addressed to Director of Hearings, ALR Program, Box 15327, Austin, Texas 78761-5327. Upon verification, the department shall remove references of the ALR suspension or disqualification from defendant's driving record if warranted.

§17.12. Final Order of Suspension or Disqualification.

If an administrative hearing is not requested, then before the effective date of suspension or disqualification, the department shall mail a final order of suspension or disqualification to the person's address of record and to the person's current address, if different. The order shall state the length of suspension or disqualification and the procedure for reinstatement. A final order of suspension or disqualification is not considered notice of suspension or disqualification for purposes of requesting an administrative hearing under this section. A final order of suspension or disqualification is presumed received on the 5th day after the day it is mailed.

§17.13. Effect of Acquittal; Notification to the Department.

(a)

Upon notification that a criminal charge under Texas Penal Code, §49.04, §49.07, §49.08, or Texas Alcoholic Beverage Code, §106.041, has resulted in an acquittal, the department shall not impose a suspension arising out of the same conduct or transaction. If a suspension has already been imposed, the department shall rescind the suspension and remove references to the suspension from the computerized driving record of the defendant.

(b)

To ensure that the department receives notice of acquittal, the defendant shall send a certified copy of the judgment of acquittal to the department at the address listed in §17.16(1) of this title (relating to Service On The Department Of Certain Items Required To Be Served On, Mailed To, Or Filed With The Department). A defendant should send a written request which identifies the defendant by name and driver's license number, states the date and county of arrest, and requests rescission of the suspension. The department reserves the right to verify the acquittal. Upon verification, the department shall rescind the suspension and remove references to the suspension from the defendant's computerized driving record.

(c)

For purposes of this section, the following types of dispositions of any criminal complaint shall not be regarded as an acquittal:

(1)

a pre-trial order of dismissal where jeopardy has not attached;

(2)

a reduction of charges;

(3)

a conviction on a lesser included charge;

(4)

a disposition under Texas Penal Code, §12.45; or

(5)

any discharge or dismissal brought about by a failure to bring a cause of action to speedy trial within the time required by the state or federal constitutions.

§17.14. Enforcement of Suspensions or Disqualifications.

(a)

Knowledge of a license suspension or disqualification is presumed if a peace officer served notice of suspension or disqualification on the person, or if the department mailed notice of suspension or disqualification to the person's address of record and to the person's current address given to the peace officer, if different.

(b)

A Texas driver's license, permit, or privilege to operate a motor vehicle may be suspended, denied or disqualified under provisions of ALR. The loss of the privilege to drive in Texas shall apply to unlicensed drivers and nonresidents, as well as residents. The department shall not issue a driver's license to any person who is subject to an order of suspension, denial or disqualification.

(c)

Upon suspension or disqualification of a driver's license, a Texas licensee must surrender any suspended or disqualified license to the department. If a person cannot comply, he must submit an affidavit to the department stating the reason why he cannot produce and surrender the license. Failure or refusal to surrender a license may result in the department initiating criminal proceedings against that licensee, as provided by Texas Transportation Code, Chapter 521. A person may surrender a suspended or disqualified license by either of the following methods:

(1)

A person may deliver a suspended or disqualified license to an ALR Hearing Attorney employed by the department, any uniformed officer of the department, or any department office during regular business hours.

(2)

A person may mail a suspended or disqualified license to the Texas Department of Public Safety, Driver Improvement and Control, Box 4040, Austin, Texas 78773-0320.

(d)

Any department employee who receives a suspended or disqualified license shall send the license to the department's main headquarters in Austin at the address listed in subsection (c)(2) of this section.

(e)

ALR suspensions shall be enforced as provided by Texas Transportation Code, Chapter 521.

§17.15. Reinstatement.

A driver's license suspended under Texas Transportation Code, Chapter 524 or Chapter 724, or disqualified under Texas Transportation Code, Chapter 522, may not be reinstated and another driver's license may not be issued until the suspended/disqualified person files an appropriate application and pays to the department a reinstatement fee of $100, in addition to any other fees required by law.

§17.16. Service on the Department of Certain Items Required to be Served on, Mailed to, or Filed With the Department.

(a)

Where authorized, required, or permitted by statute or rule, a Request for Production and/or any tangible/documentary evidence required to be served by the defendant on the department must be served on the department by one of the following methods:

(1)

by first-class mail, or by certified mail where required, addressed to Director of Hearings, ALR Program, Box 15327, Austin, Texas 78761-5327;

(2)

by telephonic document transfer (fax) to (512) 424-7171, to the attention of the Director of Hearings, ALR Program;

(3)

by hand delivery, during regular business hours, directly to the Director of Hearings, ALR Program, Driver License Division, Department of Public Safety, Main Building, 5805 North Lamar Boulevard, Austin, Texas 78752-0300.

(4)

by courier receipted delivery through a commercial overnight express delivery service to the Director of Hearings, ALR Program, Driver License Division, Department of Public Safety, Main Building, 5805 North Lamar Boulevard, Austin, Texas 78752-0300.

(b)

This section does not authorize or confer any discovery rights on a person or entity.

(c)

Any request for the appearance of the "breath test operator and/or breath test technical supervisor" at the ALR hearing, pursuant to Texas Transportation Code, §524.039(a), when made subsequent to the defendant's initial request for hearing, must be made by one of the methods set forth in paragraph (a) of this section and must be received by the department at least five days prior to the scheduled hearing date.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on May 19, 1999.

TRD-9902942

Dudley M. Thomas

Director

Texas Department of Public Safety

Earliest possible date of adoption: July 4, 1999

For further information, please call: (512) 424-2135


Part V.
Texas Board of Pardons and Paroles

Chapter 143. Executive Clemency

Subchapter D. Reprieve of Execution

37 TAC §143.43

The Policy Board of the Texas Board of Pardons and Paroles proposes an amendment to §143.43, concerning the application process to the Board for a recommendation to the governor of a reprieve from execution. The amendment is proposed for the purpose of clarifying existing application procedures, providing the opportunity for the inmate to request an interview with a member of the Board, and providing a time deadline for supplementation of the initial application.

Victor Rodriguez, Chair of the Policy Board, has determined that for the first five-year period the proposed amended rule is in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering this section.

Chairman Rodriguez also has determined that for each year of the first five years the amended rule as proposed is in effect, the public benefit anticipated as a result of enforcing the section will be to provide the first necessary step to give the Board the opportunity to review the clemency process. There will be no effect on small businesses. There is no anticipated economic cost to persons required to comply with the amended rule as proposed.

Comments should be directed to Laura McElroy, General Counsel, Texas Board of Pardons and Paroles, P.O. Box 13401, Austin, Texas, 78711. Written comments from the general public should be received within 30 days of the publication of this amendment.

The amendment is proposed under the Texas Constitution, Article IV, Section 11, and the Code of Criminal Procedure, Article 48.01, which provides the Board with authority to recommend reprieves, commutations of punishments and pardons to the governor.

There is no cross-reference to the proposed amended rule.

§143.43.Procedure in Capital Reprieve Cases.

(a)

The written application in behalf of a convicted person seeking a board recommendation to the governor of a reprieve from execution must be delivered to the Texas Board of Pardons and Paroles, Clemency Section, Austin, Texas, not later than the twenty-first calendar day before the execution is scheduled. If the twenty-first calendar day before the execution is scheduled falls on a weekend or state observed holiday, the application shall be delivered not later than the next business day. Otherwise, the applicant's recourse will be directly to the governor.

(b)

All supplemental information, including but not limited to amendments, addenda, supplements, or exhibits, must be submitted in writing and delivered to the Texas Board of Pardons and Paroles, Clemency Section, Austin, Texas, not later than the fifteenth calendar day before the execution is scheduled. If the fifteenth calendar day before the execution is scheduled falls on a weekend or state observed holiday, all additional information including but not limited to amendments, addenda, supplements, or exhibits shall be delivered not later than the next business day.

(c)

Any information filed with the application, including but not limited to amendments, addenda, supplements, or exhibits, which require reproduction facilities, equipment, or technology not operated by the board, must be provided by the applicant in an amount sufficient to allow review by all members of the board. An amount sufficient shall mean not less than 10 and not more than 20 copies of the duplicate item.

(d)

A convicted person seeking a board recommendation to the governor of a reprieve from execution may request an interview with a member of the board. Such request shall be included in the written application or any supplement filed therewith in accordance with this section.

(e)

Upon receipt of a request for an interview, the presiding officer (chair) shall designate at least one member of the board to conduct the requested interview. Such interview shall occur at the confining unit of TDCJ. Attendance at such interviews shall be limited to the convicted person, the designated board member(s), Board of Pardons and Paroles staff, and TDCJ staff. The board may consider statements by the inmate made at such interviews when considering the inmate's application for reprieve.

(f)

[ (b) ] The board shall consider and decide applications for reprieve from execution. Upon review, a majority of the board, or a majority thereof, in written and signed form, may:

(1)

recommend to the governor a reprieve from execution;

(2)

not recommend a reprieve from execution; or

(3)

set the matter for a hearing as soon as practicable and at a location convenient to the board and the parties to appear before it.

(g)

[ (c) ] When the board sets a hearing pursuant to subsection (f)(3) [ (b)(3) ] of this section, it shall notify the trial officials of the county of conviction and the attorney general of the State of Texas and allow any such official(s), or the designated representatives thereof, the opportunity to attend the hearing and/or to present any relevant information. At the time of notifying the trial officials, the board shall also notify any representative of the family of the victim (who has previously requested to be notified) of the receipt of the application, the setting of a hearing, and of said representative or family member's rights to provide any written comments or to attend the hearing.

(h)

[ (d) ] All hearings conducted by the board under this section shall be in open session pursuant to requirements of the Texas Open Meetings Act, Article 6252-17. For the purpose of discussing matters which are deemed confidential by statute, or where otherwise authorized by the provisions of the Texas Open Meetings Act, the proceedings may be conducted in executive session closed to members of the general public, for that limited purpose. Only those persons whose privacy interests and right to confidentiality may be abridged by discussion involving disclosure of confidential information may be allowed to meet with members of the board in their executive session to discuss that information. No decision, vote, or final action by the board shall be made during a closed meeting; the board's decision, vote, or final action shall be made and announced in an open meeting. The hearing may be recessed prior to its completion and reconvened pursuant to the directions of the board.

(i)

[ (e) ] Advocates for and against the death penalty, generally, and members of the general public may present written information for the board's consideration at its central office headquarters at any reasonable time.

(j)

[ (f) ] After the conclusion of the hearing, the board shall render its decision, reached by majority vote, within a reasonable time, which decision shall be either to:

(1)

recommend to the governor a reprieve from execution;

(2)

not recommend a reprieve from execution; or

(3)

recess the proceedings without rendering a decision on the merits, if a reprieve has been granted by the governor or if a court of competent jurisdiction has granted a stay of execution.

(k)

[ (g) ] Each of the provisions of this section and §143.42 of this title (relating to Reprieve Recommended by Board) are subject to waiver by the board when it finds that there exists good and adequate cause to suspend said provisions and adopt a different procedure which it finds to be better suited to the exigencies of the individual case before it.

(l)

[ (h) ] Successive or repetitious reprieve applications submitted in behalf of the same condemned felon may be summarily denied by the board without meeting.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on May 24, 1999.

TRD-9903001

Laura McElroy

General Counsel

Texas Board of Pardons and Paroles

Earliest possible date of adoption: July 4, 1999

For further information, please call: (512) 463-1883


Subchapter E. Commutation of Sentence

37 TAC §143.57

The Policy Board of the Texas Board of Pardons and Paroles proposes an amendment to §143.57, concerning the application process to the Board for a recommendation to the governor of a commutation of death sentence to a lesser penalty. The amendment is proposed for the purpose of clarifying existing application procedures, providing the opportunity for the inmate to request an interview with a member of the Board, and providing a time deadline for supplementation of the initial application.

Victor Rodriguez, Chair of the Policy Board, has determined that for the first five-year period the proposed amended rule is in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering this section.

Chairman Rodriguez also has determined that for each year of the first five years the amended rule as proposed is in effect, the public benefit anticipated as a result of enforcing the section will be to provide the first necessary step in order to give the Board the opportunity to review the clemency process. There will be no effect on small businesses. There is no anticipated economic cost to persons required to comply with the amended rule as proposed.

Comments should be directed to Laura McElroy, General Counsel, Texas Board of Pardons and Paroles, P.O. Box 13401, Austin, Texas, 78711. Written comments from the general public should be received within 30 days of the publication of this amendment.

The amendment is proposed under the Texas Constitution, Article IV, Section 11, and the Code of Criminal Procedure, Article 48.01, which provide the Board with authority to recommend reprieves, commutations of punishments and pardons to the governor.

There is no cross-reference to the proposed amended rule.

§143.57.Commutation of Death Sentence to Lesser Penalty.

(a)

The board will consider recommending to the governor a commutation of death sentence to a sentence of life imprisonment or the appropriate maximum penalty that can be imposed upon receipt of:

(1)

a request from the majority of the trial officials of the court of conviction; or

(2)

a written request of the convicted person or representative setting forth all grounds upon which the application is based, stating the full name of the convicted person, the county of conviction, and the execution date.

(b)

[ (A) ] The written application in behalf of a convicted person seeking a board recommendation to the governor of commutation of the death sentence to a lesser penalty must be delivered to the Texas Board of Pardons and Paroles, Clemency Section, Austin, Texas, not later than the twenty-first calendar day before the day the execution is scheduled. If the twenty-first calendar day before the execution is scheduled falls on a weekend or state observed holiday, the application shall be delivered not later than the next business day.

(c)

All supplemental information not filed with the application, including but not limited to amendments, addenda, supplements, or exhibits, must be submitted in writing and delivered to the Texas Board of Pardons and Paroles, Clemency Section, Austin, Texas, not later than the fifteenth calendar day before the execution is scheduled. If the fifteenth calendar day before the execution is scheduled falls on a weekend or state observed holiday, all additional information including but not limited to amendments, addenda, supplements, or exhibits shall be delivered not later than the next business day.

(d)

Any information filed with the application, including but not limited to amendments, addenda, supplements, or exhibits, which require reproduction facilities, equipment, or technology not operated by the board must be provided by the applicant in an amount sufficient to allow review by all members of the board. An amount sufficient shall mean not less than 10 and not more than 20 copies of the duplicate item.

(e)

A convicted person seeking a board recommendation to the governor of commutation of the death sentence to a lesser penalty may request an interview with a member of the board. Such request shall be included in the written application or any supplement filed therewith in accordance with this section.

(f)

Upon receipt of a request for an interview, the presiding officer (chair) shall designate at least one member of the board to conduct the requested interview. Such interview shall occur at the confining unit of TDCJ. Attendance at such interviews shall be limited to the convicted person, the designated board member(s), Board of Pardons and Paroles staff, and TDCJ staff. The board may consider statements by the inmate made at such interviews when considering the inmate's application for commutation of the death sentence to a lesser penalty.

(g)

[ (B) ] The board shall consider and decide applications for commutation of the death sentence to a lesser penalty. Upon review, a majority of the board, or a majority thereof, in written and signed form, may:

(1)

[ (i) ] recommend to the governor the commutation of the death sentence to a lesser penalty;

(2)

[ (ii) ] not recommend commutation of the death sentence to a lesser penalty; or

(3)

[ (iii) ] set the matter for a hearing pursuant to §143.43 of this Chapter (relating to Procedure in Capital Reprieve Cases).

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on May 24, 1999.

TRD-9903002

Laura McElroy

General Counsel

Texas Board of Pardons and Paroles

Earliest possible date of adoption: July 4, 1999

For further information, please call: (512) 463-1883


Chapter 145. Parole

Subchapter A. Parole Process

37 TAC §145.12

The Policy Board of the Texas Board of Pardons and Paroles proposes an amendment to 37 TAC §145.12, concerning action upon Board review. The amendment is proposed for the purpose of providing that, in order to require aftercare treatment for those inmates released to mandatory supervision, a special condition must be imposed.

Victor Rodriguez, Chair of the Policy Board, has determined that for the first five-year period the proposed amended rule is in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering this section.

Chairman Rodriguez also has determined that for each year of the first five years the amended rule as proposed is in effect, the public benefit anticipated as a result of enforcing the section will be a clarification of the rules regarding the requirement of participation in aftercare programs following completion of a TDCJ treatment program. There will be no effect on small businesses. There is no anticipated economic cost to persons required to comply with the amended rule as proposed.

Comments should be directed to Laura McElroy, General Counsel, Texas Board of Pardons and Paroles, P.O. Box 13401, Austin, Texas, 78711. Written comments from the general public should be received within 30 days of the publication of this amendment.

The amendment is proposed under the Code of Criminal Procedure, Article 42.18, §8(g), and §508.044(d)(1), Government Code, which provide the Policy Board with the authority to adopt rules with respect to the release of inmates on parole and mandatory supervision; and §508.045, Government Code, which provides parole panels with the authority to release inmates eligible for parole.

There is no cross-reference to the proposed amended rule.

§145.12.Action upon Review.

A case reviewed by a parole panel for parole consideration may be:

(1)-(4)

(No change.)

(5)

any person released to parole [ or mandatory supervision ] after completing a TDCJ treatment program as a prerequisite for parole, must participate in and complete any required post-release program.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on May 24, 1999.

TRD-9902999

Laura McElroy

General Counsel

Texas Board of Pardons and Paroles

Earliest possible date of adoption: July 4, 1999

For further information, please call: (512) 463-1883


Subchapter B. Terms and Conditions of Parole

37 TAC §145.22

The Policy Board of the Texas Board of Pardons and Paroles proposes an amendment to 37 TAC §145.22, concerning the conditions and rules of parole. The amendment is proposed for the purpose of clarifying that the Board shall not make the approval of release to parole or mandatory supervision contingent on the adoption of an out-of-state plan only.

Victor Rodriguez, Chair of the Policy Board, has determined that for the first five-year period the proposed amended rule is in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering this section.

Chairman Rodriguez also has determined that for each year of the first five years the amended rule as proposed is in effect, the public benefit anticipated as a result of enforcing the section will be that the Board will be increased efficiency in the procedures utilized by the Board in making release decisions. There will be no effect on small businesses. There is no anticipated economic cost to persons required to comply with the amended rule as proposed.

Comments should be directed to Laura McElroy, General Counsel, Texas Board of Pardons and Paroles, P.O. Box 13401, Austin, Texas, 78711. Written comments from the general public should be received within 30 days of the publication of this amendment.

The amendment is proposed under the Code of Criminal Procedure, Article 42.18, §8(g), and §508.044(d)(1), Government Code, which provide the Policy Board with the authority to adopt rules with respect to the release of inmates on parole and mandatory supervision; and §508.045, Government Code, which provides parole panels with the authority to release inmates eligible for parole.

There is no cross-reference to the proposed amended rule.

§145.22.Conditions and Rules of Parole.

(a)

Every inmate approved for release on parole shall be issued a written statement listing the conditions and rules of parole in clear and intelligible language. The conditions and rules of parole must be agreed to and accepted by the inmate prior to release. The inmate [ parolee ] may have additional conditions imposed by the parole panel after release, and shall be notified in writing of any such conditions.

(b)

Continuance on parole or mandatory supervision is conditioned upon full compliance with all the conditions and rules of parole or mandatory supervision as imposed by the parole panel.

(c)

The parole panel shall not impose as a condition for release on parole or mandatory supervision that the inmate be released only to a state other than the State of Texas.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on May 24, 1999.

TRD-9903000

Laura McElroy

General Counsel

Texas Board of Pardons and Paroles

Earliest possible date of adoption: July 4, 1999

For further information, please call: (512) 463-1883


Part VI. Texas Department of Criminal Justice

Chapter 152. Institutional Division

Subchapter D. Other Rules

37 TAC §152.53

The Texas Department of Criminal Justice proposes new §152.53 concerning death row visitations. The new section sets specific guidelines for visitation of death sentenced offenders.

David P. McNutt, Director of Financial Services for the Texas Department of Criminal Justice has determined that there will be no fiscal implications for state or local government as a result of enforcing or administering the new section as proposed.

Mr. McNutt also has determined that the public benefit anticipated as a result of enforcing the new section as proposed will be a better understanding of the TDCJ Visitation Plan and the Code of Criminal Procedure, Article 43.17. There will be no effect on small businesses. There is no anticipated economic cost to individuals required to comply with the section as proposed

Comments should be directed to Carl Reynolds, General Counsel, Texas Department of Criminal Justice, P.O. Box 13084, Austin, Texas 78711. Written comments from the general public should be received within 30 days of the publication of this proposal.

The new section is proposed under Government Code, §492.013, which grants general rulemaking authority; and Article 43.17, Code of Criminal Procedure.

Cross-reference to statute: Article 43.17, Code of Criminal Procedure.

§152.53.Death Row Visitation.

(a)

Policy. Pursuant to Article 43.17, Code of Criminal Procedure, an offender sentenced to death shall be confined until the time for execution arrives and while confined, all persons outside of the TDCJ shall be denied access to the offender, except his or her physician, lawyer, and clergyperson, who shall be admitted when necessary for the offender's health or for the transaction of business, as well as the relatives and friends of the offender in accordance with this section and the TDCJ Visitation Plan . Pursuant to the 1st Amendment, U.S. Constitution, news media shall have reasonable access to death sentenced offenders to the extent that such access does not disrupt the safe and secure operation of the unit or detract from the deterrence of crime.

(b)

Definitions

(1)

"News media" means news publications, accredited news services such as the Associated Press, licensed radio and television broadcast stations or networks, and government franchised community cable television systems that originate scheduled news programming. "News media" does not include broadcast programs syndicated by independent producers, or television stations or networks devoted primarily to advocacy purposes or to a particular point of view.

(2)

"News publication" means a publication that possesses a second class mailing permit and:

(A)

is published at least weekly and contains at least 25 percent news of general interest; or

(B)

is a magazine with a circulation of at least 25,000 that is published at least monthly and contains news and feature articles appealing to a broad spectrum of interests.

(c)

News media access

(1)

News media interviews of death sentenced offenders shall be scheduled by the Huntsville Public Information Office and shall be conducted weekly at the death row units at times specified by agency policy.

(2)

A news media entity requesting an interview with a death sentenced offender should submit appropriate information, as specified by agency policy, to the Huntsville Public Information Office prior to the interview date. News media requests shall not be accepted at the offender's unit of assignment. The number of offenders requested to be interviewed should be kept within reason.

(d)

Visits by relatives and friends

(1)

Offenders sentenced to death shall be allowed one general (non-contact) visit per week for a two hour period.

(2)

Visiting hours for death sentenced offenders are Monday through Friday, 8:00 a.m. to 5:00 p.m., and Saturdays between 5:30 p.m. and 9:30 p.m., except on State-approved holidays.

(e)

Attorney visitation. Attorney visitation shall take place in accordance with the TDCJ Uniform Offender Access to Courts, Counsel and Public Officials Rules . These rules shall be implemented liberally in accordance with the extraordinary features of death row litigation.

(f)

Physician access. Offenders sentenced to death shall be provided medical care pursuant to agency policy. This rule and Article 43.17, Code of Criminal Procedure, are not interpreted to allow for a physician chosen by the offender sentenced to death.

(g)

Clergy access. Offenders sentenced to death shall be provided access to clergy pursuant to agency policy.

(h)

General Provisions and Exceptions.

(1)

All visitors must abide by the TDCJ Offender Rules and Regulations for Visitation .

(2)

Special security procedures (e.g., security cages) may be utilized during the visitation periods to ensure the safety and security of offenders, visitors, and staff, and the security of the institution.

(3)

All death row visitation and access may be suspended for security reasons as determined by the Executive Director or his designee for a period of up to 70 days, and subject to Board ratification at the next regularly scheduled Board meeting.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 24, 1999.

TRD-9903006

Carl Reynolds

General Counsel

Texas Department of Criminal Justice

Earliest possible date of adoption: July 4, 1999

For further information, please call: (512) 463-9693


Part XIII. Texas Commission on Fire Protection

Chapter 423. Fire Suppression

Subchapter A. Minimum Standards for Structure Fire Protection Personnel Certification

37 TAC §423.3

The Texas Commission on Fire Protection proposes amendments to §423.3, concerning minimum standards for basic structure fire protection personnel certification. The amendments to §423.3 change the reference from "examination" (singular) to "examinations" (plural) to allow for testing of Firefighter I and II separately, and change the phases from four phases to five phases. Firefighter I includes phases one through four and Firefighter II includes phase five.

Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the amended sections are in effect there will be no fiscal impact for state or local governments.

Mr. Calagna also has determined that for each of the first five years the proposed amendments are in effect the public benefit anticipated as a result of enforcing the amended sections will be that training and certification of volunteer fire protection personnel will be encouraged by segmenting the basic fire suppression curriculum into Firefighter I and Firefighter II.

There are no additional costs of compliance for small or large businesses or individuals required to comply with the amendments. The commission has determined that the proposed amendments relating to certified training facilities will have no impact on private real property interests and no takings impact assessment is required pursuant to the Government Code, §2007.043(b) and §2.18 of the Attorney General's Private Real Property Rights Preservation Act Guidelines. There is no local employment impact resulting from the changes.

Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768-2286 or e-mail to info@tcfp.state.tx.us.

The amendment is proposed under Texas Government Code, §419.008, which provides the Texas Commission on Fire Protection with authority to propose rules for the administration of its powers and duties; Texas Government Code, §419.022, which provides the commission with authority to establish minimum training standards for fire protection personnel positions; and Texas Government Code, §419.032, which provides the commission with authority to establish standards for employment as fire protection personnel.

Texas Government Code, §419.022 is affected by the proposed amendments.

§423.3.Minimum Standards for Basic Structure Fire Protection Personnel Certification.

(a)

In order to become certified as basic structure fire protection personnel, an individual must:

(1)

complete a commission approved basic structure fire suppression program and successfully pass the commission examination(s) [ examination ] as specified in Chapter 439 of this title (relating to Examinations for Certification). An approved basic structure fire suppression program shall consist of one or any combination of the following:

(A)

completion of a commission approved Basic Fire Suppression Curriculum as specified in Chapter 1 of the commission's document titled "Commission Certification Curriculum Manual," as approved by the commission in accordance with Chapter 443 of this title (relating to Certification Curriculum Manual); or

(B)

completion of the five [ four ] phase levels of the approved Basic Fire Suppression Curriculum as specified in Chapter 1 of the commission's document titled "Commission Certification Curriculum Manual," as approved by the commission in accordance with Chapter 443 of this title (relating to Certification Curriculum Manual); or

(C)-(E)

(No change.)

(2)

(No change.)

(b)-(f)

(No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on May 24, 1999.

TRD-9903008

T.R. Thompson

General Counsel

Texas Commission on Fire Protection

Earliest possible date of adoption: July 4, 1999

For further information, please call: (512) 918-7189


Chapter 427. Certified Training Facilities

37 TAC §§427.1, 427.3, 427.5, 427.15

The Texas Commission on Fire Protection proposes amendments to §§427.1, 427.3, 427.5, and 427.15, concerning Certified Training Facilities. The amendments incorporate changes necessary to implement the new voluntary certification for driver/operator-pumper.

Mr. Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the amended sections are in effect there will be fiscal implications. Local governments that operate training academies that seek certification or approval to provide basic training required for driver/operator-pumper certification may be required to purchase new fire apparatus required to teach the new curriculum at a cost of up to $120,000.

Mr. Calagna also has determined that for each of the first five years the proposed amendments are in effect the public benefit anticipated as a result of enforcing the amended sections will be standardization of training for driver/operator-pumper resulting in safer and better trained fire apparatus drivers. There are no additional costs of compliance for small or large businesses or individuals required to comply with the amendments. The commission has determined that the proposed amendments relating to certified training facilities will have no impact on private real property interests and no takings impact assessment is required pursuant to the Government Code, §2007.043(b) and §2.18 of the Attorney General's Private Real Property Rights Preservation Act Guidelines.

There is no local employment impact resulting from the changes.

Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas, 78768-2286 or e-mail to info@tcfp.state.tx.us.

The amendments are proposed under Texas Government Code, §419.008, which provides the Texas Commission on Fire Protection with authority to propose rules for the administration of its powers and duties; and Texas Government Code, §419.028, which provides the commission with authority to certify facilities operated for training fire protection personnel or recruits.

Texas Government Code, §419.028 is affected by the proposed amendments.

§427.1.Minimum Standards for Certified Training Facilities for Fire Protection Personnel.

(a)

A training facility that provides basic instruction, for certification, to fire protection personnel in any of the following disciplines must be certified by the Texas Commission on Fire Protection:

(1)-(5)

(No change.)

(6)

hazardous materials technician ; [ . ]

(7)

driver/operator-pumper.

(b)-(h)

(No change.)

§427.3.Facilities.

The following minimum resources, applicable to the curricula, are required for certification as a certified training facility. These facilities may be combined or separated utilizing one or more structures. In either event the facilities must be available and used by the instructor and trainees.

(1)-(6)

(No change.)

(7)

If performance or driving skills are part of the curriculum, suitable area(s) for practicing required skills, demonstration of skills, and performance testing must be available.

§427.5.Apparatus.

(a)-(b)

(No change.)

(c)

Certified training facility--approved for Driver/Operator-Pumper. A piece of fire apparatus with a permanently mounted fire pump that has a rated discharge capacity of 750 gpm (2850 L/min) or greater as defined in NFPA 1901, Standard for Automotive Fire Apparatus.

§427.15.Testing Procedures.

(a)-(c)

(No change.)

(d)

Written tests shall be designed to encompass the contents of the subjects being taught and phrased in a manner which can be readily understood by a trainee whose comprehension is at a level consistent with the academic level of the material being presented.

(1)

Periodic written tests serve the dual purpose of permitting the instructor to evaluate the effectiveness of the instruction and the comprehension of the trainees. The instructor must determine that each trainee understands and comprehends the subject matter being presented. Trainees must maintain a grade average of not less than 70% for all periodic tests administered during the course.

(A)-(C)

(No change.)

(D)

A minimum of one periodic written test shall be administered during the course for certification of driver operator-pumper covering the subjects listed in the applicable curriculum.

(2)-(3)

(No change.)

(e)

(No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on May 19, 1999.

TRD-9902914

T.R. Thompson

General Counsel

Texas Commission on Fire Protection

Earliest possible date of adoption: July 4, 1999

For further information, please call: (512) 918-7189


Chapter 433. Minimum Standards for Driver/Operator-Pumper

37 TAC §§433.1, 433.3, 433.5

The Texas Commission on Fire Protection proposes new Chapter 433, §§433.1, 433.3, 433.5, concerning Minimum Standards for Driver/Operator-Pumper. The new chapter creates a voluntary certification for individuals with specialized training which meets the competencies and objectives outlined in National Fire Protection Association Standard 1002.

Mr. Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the new chapter is in effect there will be fiscal implications. The agency will have an increase in revenue of $20.00 per person in certification fees and $15.00 per person in testing fees. However, this increase in revenue will be offset by the cost of administering the test. Local governments who choose to pay certification, training and testing fees for employed individuals will incur costs of $20.00 per person for certification and $15.00 per person for testing and approximately $300.00 per person for training. In addition, local governments that operate training academies that seek certification or approval to provide basic training required for driver/operator-pumper certification may be required to purchase new fire apparatus required to teach the new curriculum at a cost of up to $120,000.

Mr. Calagna also has determined that for each of the first five years the proposed new chapter is in effect the public benefit anticipated as a result of enforcing the new chapter will be standardization of training for driver/operator-pumper resulting in safer and better trained fire apparatus drivers. There are no additional costs of compliance for small or large businesses required to comply with the new chapter. Individuals whose employers who do not elect to pay for this voluntary certification will incur costs of $20.00 for certification and $15.00 for testing and approximately $300.00 for training. The commission has determined that the proposed new chapter relating to minimum standards relating to driver/operator - pumper will have no impact on private real property interests and no takings impact assessment is required pursuant to the Government Code, §2007.043(b) and §2.18 of the Attorney General's Private Real Property Rights Preservation Act Guidelines.

There is no local employment impact resulting from the changes.

Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas, 78768-2286 or e-mail to info@tcfp.state.tx.us.

The new chapter is proposed under Texas Government Code, §419.008, which provides the Texas Commission on Fire Protection with authority to propose rules for the administration of its powers and duties; and Texas Government Code, §419.022, which provides the commission with authority to establish minimum educational and training standards for specialized fire protection personnel positions.

Texas Government Code, §419.022 is affected by the proposed new chapter.

§433.1.Driver/Operator-Pumper Certification.

(a)

The effective date of this section shall be November 1, 1999.

(b)

A driver/operator-pumper is defined as an individual who safely operates a fire pumper in accordance with all state and local laws; operates a fire pump in a safe manner; and determines effective fire stream calculations and pump discharge pressures. Responsibilities include routine apparatus tests, maintenance, inspections, and servicing functions.

(c)

Within one year of the effective date of this section, an individual may apply for certification as a Driver/Operator-Pumper and is eligible to take the commission examination for driver/operator-pumper, upon documentation to the Commission that the individual has completed the minimum requirements of the National Fire Protection Association Standard 1002 (1998 edition, or earlier).

§433.3.Minimum Standards for Driver/Operator-Pumper Certification.

(a)

The effective date of this section shall be November 1, 1999. Training programs that are intended to satisfy the requirements of this section, started on or after the effective date of this section, must meet the curriculum, competencies, and hour requirements of this section. All applicants for certification must meet the examination requirements of this section.

(b)

In order to obtain Driver/Operator-Pumper certification the individual must:

(1)

hold certification as Structural Fire Protection Personnel, Aircraft Rescue Fire Fighting Personnel, or Marine Fire Protection Personnel;

(2)

complete a commission approved Driver/Operator-Pumper Curriculum and successfully pass the commission examination as specified in Chapter 439 of this title (relating to Examinations for Certification). An approved driver/operator - pumper program must consist of one of the following:

(A)

complete a commission approved Driver/Operator-Pumper Curriculum of at least 40 hours as specified in Chapter 7 of the Commission's document titled "Commission Certification Curriculum Manual," as approved by the Commission in accordance with Chapter 443 of this title (relating to Certification Curriculum Manual).

(B)

complete an out-of-state training program that has been submitted to the commission for evaluation and found to be equivalent to or exceed the commission approved Driver/Operator-Pumper Curriculum.

(C)

complete a military training program that has been submitted to the commission for evaluation and found to be equivalent to or exceeds the commission approved Driver/Operator-Pumper Curriculum.

(c)

Out-of-state or military training programs which are submitted to the commission for the purpose of determining equivalency will be considered equivalent if all competencies set forth in Chapter 7 (pertaining to Driver/Operator-Pumper) of the "Commission Certification Curriculum Manual" are met.

(d)

The commission approved Driver/Operator-Pumper Curriculum must be conducted by a training facility that has been certified by the commission as provided in Chapter 427 of this title (relating to Certified Training Facilities).

(e)

An individual from another jurisdiction who possesses valid documentation of accreditation from the International Fire Service Accreditation Congress as Driver/Operator-Pumper shall be eligible to take the commission written examination for driver/operator-pumper.

(f)

No individual will be permitted to take the commission examination for driver/operator-pumper unless the individual meets the requirements of subsection (b)(1) of this section.

§433.5.Examination Requirements.

(a)

The written examination requirements of Chapter 439 of this title (relating to Examinations for Certification) must be met in order to receive driver/operator-pumper certification.

(b)

Performance skills must meet the requirements in §439.11 of this title (relating to Performance Skill Evaluation) with the following exceptions:

(1)

All performance skills listed in the curriculum must be tested for competency during the course.

(2)

The number of opportunities to successfully complete particular performance skill objectives evaluated during a Driver/Operator-Pumper academy is at the discretion of the training officer or coordinator. Retests must be conducted prior to the completion of the course.

(3)

All skills must be demonstrated before a commission approved field examiner.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on May 19, 1999.

TRD-9902915

T.R. Thompson

General Counsel

Texas Commission on Fire Protection

Earliest possible date of adoption: July 4, 1999

For further information, please call: (512) 918-7189


Chapter 439. Examinations for Certification

37 TAC §§39.3, 439.5, 439.7, 439.11, 439.13, 439.15

The Texas Commission on Fire Protection proposes amendments to §§439.3, 439.5, 439.7, 439.11, 439.13, and 439.15, concerning examinations for certification. The amendments provide for testing of training for Firefighter I and II separately or combined, and make technical changes to correct cross references and clarify testing requirements.

Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the amended sections are in effect there will be fiscal implications. If the basic fire suppression curriculum is segmented into Firefighter I and Firefighter II by the academy and tested separately there will be an increase in cost to local governments of $15 per person for testing fees and approximately $500 in cost for instructors for additional skills testing. The agency will experience an increase in revenue of $15 per person for testing fees which will be offset by expenses for administration of the examinations.

Mr. Calagna also has determined that for each of the first five years the proposed amendments are in effect the public benefit anticipated as a result of enforcing the amended sections will be that training and certification of volunteer fire protection personnel will be encouraged by segmenting the basic fire suppression curriculum into Firefighter I and Firefighter II.

There are no additional costs of compliance for small or large businesses or individuals required to comply with the amendments. The commission has determined that the proposed amendments relating to examinations for certification will have no impact on private real property interests and no takings impact assessment is required pursuant to the Government Code, §2007.043(b) and §2.18 of the Attorney General's Private Real Property Rights Preservation Act Guidelines. There is no local employment impact resulting from the changes.

Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768-2286 or e-mail to info@tcfp.state.tx.us.

The amendment is proposed under Texas Government Code, §419.008, which provides the Texas Commission on Fire Protection with authority to propose rules for the administration of its powers and duties; and Texas Government Code, §419.032, concerning basic certification examinations.

Texas Government Code, §419.032 is affected by the proposed amendments.

§439.3. Definitions.

The following words and terms used in this chapter[ , ] have the following definitions unless the context clearly indicates otherwise.

(1)

Certificate of Completion - A signed statement certifying that an individual has successfully completed a commission approved basic certification curriculum or phase program for a particular discipline, including having been evaluated by field examiners on performance skills identified by the commission. The Certificate of Completion will be on a form provided by the commission and is to be completed and signed by the provider of training and issued to the individual upon successful completion of the training. The certificate of completion must, as a minimum, identify the provider of training, the course I.D. number, the course approval number, hours of instruction, date issued, curriculum name, training officer or course coordinator, and the name of the person completing the course. The certificate of completion qualifies an individual to take an original certification examination.

(2)-(9)

(No change.)

§439.5. Procedures.

(a)-(d)

(No change.)

(e)

[ To apply for a commission examination at a certified volunteer training facility, the designated training officer or coordinator of the entity providing the training must have each examinee complete the Application for Testing form and return it to the commission no later than 30 days prior to the requested examination date. Upon receipt of the Application(s) for Testing, the commission will tentatively schedule a time and place for the examination. A reasonable attempt shall be made to schedule the examination at a time and place agreeable to the provider of training and examinees. ] The provider of training of a Basic Fire Suppression Fire Fighter I academy will receive from the commission at least seven randomly selected performance skill [ skills ] objectives from Section II of the Performance Evaluation Forms [ booklet ] that each examinee must successfully complete prior to the commission examination. The provider of training of a Basic Fire Suppression Fire Fighter II academy will receive from the commission at least seven randomly selected performance skill objectives from Section III of the Performance Evaluation Forms that each examinee must successfully complete prior to the commission examination. The provider of training of a Basic Fire Suppression Fire Fighter I and Fire Fighter II combined academy will receive from the commission at least seven randomly selected performance skill objectives from Section II and Section III of the Performance Evaluation Forms that each examinee must successfully complete prior to the commission examination.

(f)

(No change.)

(g)

Commission examinations, or retests, for less than eight examinees must be conducted in accordance with this section, provided that entity providing the training agrees to pay an examination fee equal to the amount that would be charged for eight examinees.

(h)-(s)

(No change.)

(t)

The Basic Fire Suppression examination includes 150 active questions with an option of adding up to 20 pilot questions. The time allowed for the completion of the written examination will not exceed three hours.

(1)

Basic Fire Suppression Fire Fighter I examination includes 100 active questions with an option of adding up to 10 pilot questions. The time allowed for the completion of the written examination will not exceed two (2) hours.

(2)

The Basic Fire Suppression Fire Fighter II examination includes 50 active questions with an option of adding up to 10 pilot questions. The time allowed for the completion of the written examination will not exceed one hour.

(3)

The Basic Fire Suppression Fire Fighter I and II combined examination includes 150 active questions with an option of adding up to 20 pilot questions. The time allowed for the completion of the written examination will not exceed three hours.

(u)

An individual who has documented completion of commission approved Fire Fighter II training will be allowed to take the Basic Fire Suppression Fire Fighter II examination, if it has been less than four years since the individual has passed the commission's Basic Fire Suppression Fire Fighter I written and performance evaluation.

§439.7. Eligibility.

(a)

(No change.)

(b)

In order to qualify for a commission examination, the examinee must:

(1)

meet or exceed the minimum requirements set by the commission as a prerequisite for the specified examination;

(2)

provide the staff examiner with a copy of a Certificate of Completion for the course required for the specific examination sought or an endorsement of eligibility issued by the commission;

(3)

bring to the test site and display upon request some form of identification which contains the name and a photograph of the examinee;

(4)-(5)

(No change.)

(c)

(No change.)

§439.11. Performance Skill Evaluation.

(a)

State performance skill evaluation. If a performance skill test is [ objectives are ] part of a commission examination, [ an approved curriculum ] the examinee must complete a state performance skill evaluation in accordance with subsection [ Subsection ] (b) of this section. The state performance skill evaluation may be part of an original certification examination administered at the conclusion of a basic certification course at an approved training facility, as part of a Test for Certification Status, or as part of a commission examination for Proof of Proficiency.

(b)

Evaluation procedures. The state performance skill evaluation must consist of at least three successfully completed performance skill objectives evaluated by staff examiners or by field examiners under the supervision of a staff examiner after completion of an approved curriculum.

(1)

The state performance skill [ objectives ] evaluation of a Basic Fire Fighter I academy or a combined Fire Fighter I and Fire Fighter II academy must consist of one skill pertaining to self-contained breathing apparatus and at least two other skills identified as a critical skill in Section I of the Performance Evaluation Forms [ booklet ].

(2)

Each student's performance evaluation form for each skill must be signed by the examiner performing the evaluation.

(3)

An examinee who fails a state performance skill evaluation may be allowed a retest at a time and place to be determined by the staff examiner. If the candidate fails the retest, remedial training conducted by a certified instructor who is approved to teach in that specific subject area is required for a second retest. Remedial training must be of no less duration than the recommended curriculum instructional hours for the section in which the failed skill(s) is reflected. An examinee being retested on a performance skill must be retested on any skill, randomly selected by the staff examiner, from the same subject area as the performance skill objective that was failed.

(4)

If the examinee fails the final retest as part of a state performance skill evaluation, the examinee must requalify by repeating the entire curriculum applicable to the examination.

(c)

Original certification examination. In accordance with §439.5(e) [ If performance skill objectives are part of an original certification examination ], the examinee must be evaluated for competency by an approved field examiner at a certified training facility and [ on at least seven ] pass all of the [ completed ] performance skill objectives randomly selected by the commission prior to the administration of the [ to qualify for a ] state performance skill evaluation. The evaluation for competency to qualify for the state performance skills evaluation may occur at any time during the course of instruction. The number of opportunities to successfully complete particular performance skill objectives evaluated during an academy is at the discretion of the training officer or course coordinator. The training facility must maintain copies of performance evaluation forms on each examinee to document competency. The instructor of a particular subject may not evaluate the performance skill related to that subject unless the instructor is an approved field examiner. At the conclusion of a course at an approved training facility, the examinee must complete the state performance skill evaluation in accordance with subsection [ Subsection ] (b) of this section.

(d)

Testing for certification status. If performance skill objectives are part of a commission examination as provided in §439.15 [ §439.17 ] of this title (relating to Testing for Certification Status), the performance skill evaluation must consist of at least three successfully completed performance skill objectives evaluated in accordance with subsection (b) of this section by staff examiners or by field examiners at an approved training facility with the consent of its training officer or course coordinator.

(e)

Proficiency examination. If performance skill objectives are part of a commission examination as provided in §439.13 [ §439.15 ] of this title (relating to Testing for Proof of Proficiency), the performance skill evaluation must consist of at least three (3) successfully completed performance skill objectives evaluated in accordance with subsection (b) of this section by staff examiners or by field examiners at an approved training facility with the consent of its training officer or course coordinator.

§439.13.Testing for Proof of Proficiency.

(a)

An individual whose certificate [ certificate(s) ] has been expired for one year or longer may not renew the certificate [ or certificates ] that was [ were ] previously held.

(b)

The individual may obtain a new certificate [ or certificates ] in the discipline [ or disciplines ] which was previously held by passing a commission proficiency examination pertaining to the discipline [ or disciplines which was previously ] held and becoming certified within the time specified for that discipline [ or disciplines ]. The proficiency examination must be passed prior to assignment to fire protection duties. If performance skills are part of the proficiency examination, the individual may be exempted from that portion of the examination by documenting [ if the individual can document ] twenty hours of continuing education for each year since the expiration of the certificate for a maximum of five years. The continuing education training must be done within the most recent five years and must be in subjects contained in the basic curriculum for the discipline. At least one-half of the continuing education must be hands-on performance skills. The training must be conducted as specified in Chapter 441 of this title (relating to Continuing Education).

(c)-(d)

(No change.)

§439.15.Testing for Certification Status.

(a)

If an individual who has never held certification in a discipline defined in §421.5, (relating to the definitions [ definition ] of fire protection personnel and volunteer fire protection personnel) , seeks certification in that discipline two years or longer after passing a commission examination pertaining to that discipline, the individual shall:

(1)-(3)

(No change.)

(b)

(No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on May 24, 1999.

TRD-9903009

T.R. Thompson

General Counsel

Texas Commission on Fire Protection

Earliest possible date of adoption: July 4, 1999

For further information, please call: (512) 918-7189


Chapter 449. Head of a Fire Department

37 TAC §449.1

(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Commission on Fire Protection or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The Texas Commission on Fire Protection proposes the repeal of §449.1, concerning head of a fire department. The repealed section is being replaced by new sections dealing with the same subject matter.

Mr. Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the repeal is in effect there will be no impact on state or local government.

Mr. Calagna also has determined that for each of the first five years the proposed repeal is in effect the public benefit anticipated as a result of enforcing the repeal will be that individuals and fire departments will have a clearer understanding of the requirements for certification as head of a fire department as well as the activities authorized by the certificate.

There are no additional costs of compliance for small or large businesses or individuals required to comply with the repeal. The commission has determined that the proposed repeal relating to head of a fire department will have no impact on private real property interests and no takings impact assessment is required pursuant to the Government Code, §2007.043(b) and §2.18 of the Attorney General's Private Real Property Rights Preservation Act Guidelines. There is no local employment impact resulting from the change.

Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P. O. Box 2286, Austin, Texas 78768-2286 or e-mail to info@tcfp.state.tx.us.

The repeal is proposed under Texas Government Code, §419.008, which provides the Texas Commission on Fire Protection with authority to propose rules for the administration of its powers and duties; and Texas Government Code, §419.032(f), which provides that the commission shall adopt rules for the purpose of this subsection relating to the appointment of a person to the position of head of the fire department.

Texas Government Code, §419.032(f) is affected by the proposed repeal.

§449.1.Minimum Standards for the Head of a Fire Department.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 19, 1999.

TRD-9902916

T.R. Thompson

General Counsel

Texas Commission on Fire Protection

Earliest possible date of adoption: July 4, 1999

For further information, please call: (512) 918-7189


37 TAC §§449.1, 449.3, 449.5

The Texas Commission on Fire Protection proposes new §§449.1, 449.3, and 449.5, concerning head of a fire department. The new sections replace repealed sections dealing with the same subject matter. The new sections clarify the requirement for certification as head of a fire department for appointments made after March 1, 1999, and include an explicit assignment requirement for certification, and specifying the duties authorized by the certification. Finally, the new sections established specialized certifications for head of a fire department providing fire suppression and departments providing fire prevention services.

Mr. Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the new sections are in effect there will be no impact on state or local government.

Mr. Calagna also has determined that for each of the first five years the proposed new sections are in effect the public benefit anticipated as a result of enforcing the amended sections will be that individuals and fire departments will have a clearer understanding of the requirements for certification as head of a fire department as well as the activities authorized by the certificate.

There are no additional costs of compliance for small or large businesses or individuals required to comply with the new sections.

The commission has determined that the proposed new sections relating to head of a fire department will have no impact on private real property interests and no takings impact assessment is required pursuant to the Government Code, §2007.043(b) and §2.18 of the Attorney General's Private Real Property Rights Preservation Act Guidelines. There is no local employment impact resulting from the changes.

Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P. O. Box 2286, Austin, Texas 78768-2286 or e-mail to info@tcfp.state.tx.us.

The new sections are proposed under Texas Government Code, §419.008, which provides the Texas Commission on Fire Protection with authority to propose rules for the administration of its powers and duties; and Texas Government Code, §419.032(f), which provides that the commission shall adopt rules for the purpose of this subsection relating to the appointment of a person to the position of head of the fire department.

Texas Government Code, §419.032(f) is affected by the proposed new sections.

§449.1.Minimum Standards for the Head of a Fire Department.

(a)

An individual who becomes employed and is assigned as the head of a fire department, on or after March 1, 1999, must be certified by the commission as head of a fire department, within one year of appointment.

(b)

Holding the head of a fire department certification does not qualify an individual for any other certification. An individual who seeks certification in another discipline must meet the requirements for that discipline.

(c)

Nothing contained in this chapter shall be construed to supercede Chapter 143, Local Government Code, in regard to appointment of a head of a fire department.

§449.3.Minimum Standards for Certification as Head of a Suppression Fire Department.

(a)

In order to be certified as a head of a fire department providing fire suppression, an individual must:

(1)

be assigned as head of a fire department; and

(2)

hold a certification as a fire protection personnel in any discipline that has a commission approved curriculum that requires structural fire protection personnel certification and five years experience in a full-time fire suppression position; or

(3)

provide documentation in the form of a sworn affidavit of ten years experience as an employee of a local governmental entity in a full-time structural fire protection personnel position in a jurisdiction other than Texas; and

(A)

document completion of continuing education, that meets the requirements of Chapter 441, for each year the individual has been out of the fire service up to a maximum of five years; and

(B)

successfully pass a written commission examination based on the basic structural fire protection personnel curriculum as specified in Chapter 439 of this title (relating to Examinations for Certification); or

(4)

provide documentation in the form of a sworn affidavit of ten years of experience as a certified structural part-time fire protection employee; or

(5)

provide documentation in the form of a sworn affidavit of ten years experience as an active volunteer fire fighter in one or more volunteer fire departments that meet the requirements of subsection (b) of this section and successfully pass a written commission examination based on the basic structural fire protection personnel curriculum as specified in Chapter 439 of this title.

(b)

The ten years of volunteer service must include documentation of attendance at 40% of the drills for each year and attendance of at least 25% of a department's emergencies in a calendar year while a member of a volunteer fire department or departments with 10 or more active members that conducts a minimum of 48 hours of drills in a calendar year.

(c)

Individuals certified as the head of a fire department must meet the continuing education requirement as provided for in Chapter 441 of this title (relating to Continuing Education).

(d)

An individual certified as head of a fire department under this section may engage in fire fighting activities only as the head of a fire department. These activities include incident command, direction of fire fighting activities or other emergency activities typically associated with fire fighting duties, i.e. rescue, confined space and hazardous materials response.

§449.5.Minimum Standards for Certification as Head of a Prevention Only Department.

In order to be certified as the head of a fire department providing fire prevention activities only, an individual must:

(1)

be assigned as head of a fire department; and

(2)

hold a certification as a fire inspector, fire investigator, or arson investigator and have five years of full-time experience in fire prevention activities; or

(3)

provide documentation in the form of a sworn affidavit of ten years experience with a local governmental entity in a full-time, part-time or volunteer fire inspector, fire investigator, or arson investigator position with ten years of experience in fire prevention activities; and

(A)

document completion of continuing education, that meets the requirements of Chapter 441, for each year the individual has been out of the fire service up to a maximum of five years; and

(B)

successfully pass a written commission examination based on the basic inspector or investigator curriculum as specified in Chapter 439 of this title (relating to Examinations for Certification).

(4)

Individuals certified as the head of a fire department under this section must meet the continuing education requirement as provided for in Chapter 441 of this title (relating to Continuing Education).

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 19, 1999.

TRD-9902917

T.R. Thompson

General Counsel

Texas Commission on Fire Protection

Earliest possible date of adoption: July 4, 1999

For further information, please call: (512) 918-7189


Chapter 453. Minimum Standards for Hazardous Materials Technician

37 TAC §§453.1, 453.3, 453.5

The Texas Commission on Fire Protection proposes amendments to §§453.1, 453.3, and 453.5, concerning minimum standards for hazardous materials technician. The change to §453.1 deletes unnecessary language concerning who may seek Hazardous Material Technician Certification. The amendment to §453.3 clarifies that certification as structure fire protection personnel, aircraft fire rescue fire fighting personnel, or marine fire protection personnel is a prerequisite for the hazardous material technician certification. The amendment to §453.5 deletes a requirement of testing within 180 days of course completion to make the requirement consistent with other disciplines.

Mr. Anthony C. Calagna, Fire Fighter Advisory Committee Chairman, has determined that for the first five year period the amended sections are in effect there will be no fiscal implications for state or local governments.

Mr. Calagna also has determined that for each of the first five years the proposed amendments are in effect the public benefit anticipated as a result of enforcing the amended sections will be that testing requirements for hazardous material technician will be consistent with other disciplines and individuals will have additional time for study for a second attempt on the certification examination.

There are no additional costs of compliance for small or large businesses or individuals required to comply with the amendments. The commission has determined that the proposed amendments relating to minimum standards for hazardous materials technician will have no impact on private real property interests and no takings impact assessment is required pursuant to the Government Code, §2007.043(b) and §2.18 of the Attorney General's Private Real Property Rights Preservation Act Guidelines. There is no local employment impact resulting from the changes.

Comments on the proposal may be submitted to: Gary L. Warren Sr., Executive Director, Texas Commission on Fire Protection, P. O. Box 2286, Austin, Texas 78768-2286 or e-mail to info@tcfp.state.tx.us.

The amendments are proposed under Texas Government Code, §419.008, which provides the Texas Commission on Fire Protection with authority to propose rules for the administration of its powers and duties; and Texas Government Code, §419.022, which provides the commission with authority to establish minimum educational and training standards for specialized fire protection personnel positions.

Texas Government Code, §419.022 is affected by the proposed amendment.

§453.1.Hazardous Materials Technician Certification.

(a)

(No change.)

(b)

[ An individual who is certified as Structural Fire Protection Personnel, Aircraft Crash and Rescue Fire Protection Personnel, or Marine Fire Protection Personnel may be certified as a hazardous materials technician. ]

[ (c) ]

A hazardous materials technician is defined as an individual who performs emergency response to an occurrence which results in, or is likely to result in, an uncontrolled release of a hazardous substance where there is a potential safety or health hazard (i.e., fire, explosion, or chemical exposure). A hazardous materials technician responds to such occurrences and is expected to perform work to handle and control (stop, confine, or extinguish) actual or potential leaks or spills. The hazardous materials technician assumes a more aggressive role than a first responder at the operations level in that the hazardous materials technician will approach the point of release. The hazardous materials technician is expected to use specialized chemical protective clothing (CPC) and specialized control equipment.

(c)

[ (d) ] Within one year of the effective date of this section, an individual may apply for certification as a Hazardous Materials Technician and is eligible to take the commission examination for hazardous materials technician, upon documentation to the Commission that the individual has completed the Hazardous Materials Technician training meeting the minimum requirements of the Occupational Safety and Health Administration 29 CFR 1910.120(q)(6)(iii) or National Fire Protection Association Standard 472 (1997 edition, or earlier).

(d)

[ (e) ] All individuals holding a hazardous materials technician certification shall be required to comply with the continuing education requirements in §441.17 of this title (relating to Continuing Education Requirements for Hazardous Materials Technician).

§453.3.Minimum Standards for Hazardous Materials Technician Certification.

(a)

(No change.)

(b)

In order to be certified as a Hazardous Materials Technician an individual must [ complete a commission approved hazardous materials technician program and successfully pass the commission examination as specified in Chapter 439 of this title (relating to Examinations for Certification). An approved hazardous materials technician program must consist of one of the following ]:

(1)

hold certification as Structural Fire Protection Personnel, Aircraft Rescue Fire Fighting Personnel, or Marine Fire Protection Personnel and;

(2)

complete a commission approved hazardous materials technician program and successfully pass the commission examination as specified in Chapter 439 of this title (relating to Examinations for Certification). An approved hazardous materials technician program must consist of one of the following:

(A)

[ (1) ] completion of a commission approved Hazardous Materials Technician Curriculum of at least 80 hours as specified in Chapter 6 of the Commission's document titled "Commission Certification Curriculum Manual," as approved by the Commission in accordance with Chapter 443 of this title (relating to Certification Curriculum Manual).

(B)

[ (2) ] completion of an out-of-state training program that has been submitted to the commission for evaluation and found to be equivalent to or exceed the commission approved Hazardous Materials Technician Curriculum.

(C)

[ (3) ] completion of a military training program that has been submitted to the commission for evaluation and found to be equivalent or exceed the commission approved Hazardous Materials Technician Curriculum.

(c)-(f)

(No change.)

§453.5.Examination Requirements.

(a)

(No change.)

(b)

[ The written examination for hazardous materials technician must be taken and passed within 180 days of course completion. ]

[ (c) ]

Performance skills must meet the requirements in §439.11 [ §439.13 ] of this title (relating to Performance Skill Evaluation) with the following exceptions:

(1)

All performance skills listed in the curriculum must be tested for competency during the course.

(2)

The number of opportunities to successfully complete particular performance skill objectives evaluated during a Hazardous Materials Technician School is at the discretion of the training officer or coordinator. Retests must be conducted prior to the completion of the course.

(3)

All skills must be demonstrated before a commission approved field examiner.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 19, 1999.

TRD-9902918

T.R. Thompson

General Counsel

Texas Commission on Fire Protection

Earliest possible date of adoption: July 4, 1999

For further information, please call: (512) 918-7189