Part V.
State Board of Dental Examiners
Chapter 115.
Extension of Duties of Auxiliary Personnel Dental Hygiene
22 TAC §115.20
The State Board of Dental Examiners adopts an amendment to
§115.20 with changes to the proposed text as published in the April 16,
1999 issue of the
Texas Register
(24 TexReg
3016).
The proposed amendment to the rule are intended to more closely track the
provisions of Tex. Rev. Civ. Stat. Anno, article 4551e, Section 4A (Vernon
Supp., 1999). Further, as proposed, subsection (d) of the rule was intended
to establish a four year life for the Dental Hygiene Advisory Committee (DHAC)
under the provisions of Texas Government Code §2110 (Vernon Supp., 1999).
The change from the published language is the deletion of subsection (d).
The amended §115.20 as originally published in the
Texas Register
provided the purpose of DHAC , that the State Board
of Dental Examiners (SBDE) will evaluate the committee annually, that the
members should select a chair who is to report to the board on committee activities,
and provided for continued existence of the committee until September 1, 2003.
Subsections (a) (b) and (c) are adopted as proposed. Subsection (d) is
deleted. An amendment to the Dental Practice Act, Tex. Rev. Civ. Stat. Anno,
Article 4543 et seq. (Vernon Supp., 1999) set forth in Senate Bill 964, which
is currently before the Governor, provides that DHAC is subject to Texas Government
Code §325 (Vernon Supp., 1999), the Sunset Act. It also provides that
DHAC is abolished on September 1, 2005 unless it is continued in existence
under the Sunset Act.
Thus, the rule as proposed conflicts with the amendment. Since the specifics
of DHAC's duration and of how it may continue are in the Dental Practice Act,
subsection (d) is not appropriately included in the rule.
There was one comment letter from the Texas Dental Hygienists' Association
(TDHA) requesting three changes to the published rule.
The first request was that subsection (d) be amended to provide that DHAC
should continue in existence until the SBDE is abolished. Since the Legislature
has spoken on this issue, the Board cannot adopt rules contrary to the Dental
Practice Act. The continuation of DHAC is controlled by the Sunset Act. For
these reasons, the first suggestion of TDHA is not approved.
The second request was that a new subsection (e) be provided. That section
would require the SBDE to provide to Committee members copies of all communications
or information coming to the Board that relate to dental hygiene. Further,
the Board would be required to provide each Committee member with an agenda
for all Board and Board Committee meetings. Lastly, it would require that
copies of information relating to dental hygiene that is made available to
Board members be provided to each Committee member.
The amount of information or communications relating to dental hygiene
that comes to the Board is voluminous. As requested the rule would require
Board staff to review all magazines and publications concerning dentistry
to be reviewed for content. Further, it would require that Committee members
be provided with copies of investigative files, which are confidential pursuant
to Article 4550, §2. The Board makes significant effort to ensure that
DHAC members have copies of information concerning dental hygiene matters
that may or will come before this Board.
The Board follows a policy of providing the DHAC chair with copies of agendas
for all Board and Board Committee meetings, along with any information provided
to Board members. The TDHA is requesting establishment of a procedure that
is already in place, with one exception. Currently, only the DHAC chair is
provided with this information, while the request would result in all members
receiving a copy directly from the Board. It is the Board's intent that Committee
members have copies of the information and it looks to the chair to see that
copies are provided to them. Thus the addition of subsection (e) would accomplish
no purpose.
The third request was for a new subsection (f) which would make all DHAC
members ex officio members of all Board committees. All committee meetings
are posted and are open meetings that may be attended by the public. Even
though the chair can refuse to allow participation in discussion by the public,
as a practical matter comment is always allowed if the commenter has an interest
in the subject under discussion. Further, since the committees are Board committees,
all of which are made up of Board members, appointment of ex officio members
who are not Board members is inappropriate; such power for DHAC is not provided
for by Article 4551e at §4A. Further, as members of the committee, albeit
ex officio, all DHAC members would be expected to attend all Board committee
meetings. Travel costs for six additional persons would devastate the agency's
travel budget at a time when the Legislature has imposed a travel cap for
each fiscal year for the agency. In fact from the date this rule is adopted
until August 31, 2001, there are no funds for such travel costs. Board committee
recommendations are reviewed by the Board in open meeting where the subject
matter to be discussed is published, and the DHAC chair can be allowed input
during the Board discussions. For the reasons set forth, the Board declines
to add subsection (f).
The amended rule is adopted under Texas Government Code 2001.021
et seq.; Texas Civil Statutes and article 4551d which provides the State Board
of Dental Examiners with the authority to adopt and promulgate rules as may
be necessary to ensure compliance with laws relating to the practice of dentistry,
and article 4551e, §4A which establishes the Dental Hygiene Advisory
Committee.
§115.20.Dental Hygiene Advisory Committee--Purpose and Composition.
(a)
The Dental Hygiene Advisory Committee is established pursuant
to Texas Civil Statutes, Article 4551e, §4A, for the purpose of advising
the Board on matters relating to dental hygiene.
(b)
The Board shall annually evaluate the Committee's work,
its usefulness, and the costs related to the Committee's work to include agency
staff time in support of the Committee's activities. Reimbursement of costs
shall be determined as set out in the General Appropriations Act and under
Article 4551e, §4A.
(c)
The Committee shall elect from among its members a presiding
officer who shall serve for one year and who shall report to the Board on
Committee activities as may be required, but no less often than annually.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June
10, 1999.
TRD-9903439
Jeffry R. Hill
Executive Director
State Board of Dental Examiners
Effective date: June 30, 1999
Proposal publication date: April 16, 1999
For further information, please call: (512) 463-6400
Chapter 535.
Provisions of the Real Estate License Act
Subchapter A. General Provisions Relating to the Requirement of Licensure
22 TAC §§535.1-535.3
The Texas Real Estate Commission (TREC) adopts an amendment
to §535.1, concerning when a real estate license is required, with changes
to the proposed text as published in the April 30, 1999, issue of the
The amendment to §535.1 clarifies that Texas Civil Statutes, Article
6573a, (the Act) applies to those persons acting as real estate brokers or
salespersons within the state. On final adoption, the commission determined
that Texas consumers should be protected when engaging in real estate transactions
from this state by means of the Internet, telephone, mail, e-mail or other
electronic medium and revised §535.1 to reflect that position. As modified,
the section provides that a person conducting brokerage business from another
state by means of the specified media would be considered acting within Texas
and would be subject to the Act. Several subsections also were deleted as
unnecessary since the issues they concern are either addressed elsewhere in
TREC's rules or in the Act. The section also was revised to combine a number
of subsections which describe activities for which a license is not required,
such as the performance of secretarial or clerical functions. A general definition
of the terms "property" and "real property" was added to clarify the meaning
of the terms used in TREC's rules.
The amendment to §535.2 eliminated unnecessary provisions addressing
matters not within the jurisdiction of the commission, combined other provisions
relating to the responsibility of the broker and restated other provisions
in clearer language. The amendment to §535.3 broadened the scope of that
section to address payment of compensation by salespersons as well as compensation
paid to salespersons.
These actions are necessary to ensure the protection of Texas consumers
when engaging in real estate transactions, whether conducted entirely in Texas,
or conducted by persons acting as real estate brokers from other states. By
applying the Act to persons conducting brokerage business from another state
with a Texas consumer, TREC is acting to ensure that the real estate needs
of Texas consumers will be served by persons who have met the standards for
real estate brokers required under Texas law. These actions also are necessary
to continue the process of keeping TREC's rules current and concise.
No comments were received regarding the proposed amendments.
The amendments are adopted under Texas Civil Statutes, Article
6573a, §5(h), which authorize the Texas Real Estate Commission to make
and enforce all rules and regulations necessary for the performance of its
duties.
§535.1.License Required.
(a)
Texas Civil Statutes, Article 6573a (the Act) applies to
persons acting as real estate brokers or salespersons within this state, regardless
of the location of the real estate involved or the residence of the person's
customers or clients. For the purposes of the Act, conducting brokerage business
from another state by mail, telephone, the Internet, e-mail or other electronic
medium is considered acting within this state.
(b)
Unless otherwise exempted by the Act, a person must be
licensed as a real estate broker or salesperson to show a broker's listings,
solicit listings of real property perform any act defined as that of a real
estate broker by the Act. An unlicensed person may be hired by a broker to
act as a host or hostess at a property being offered for sale by the broker,
provided the unlicensed person engages in no activity for which a license
is required.
(c)
The employees, agents or associates of a licensed broker,
including a corporation or limited liability company licensed as a broker,
must be licensed as real estate brokers or salespersons if they direct or
supervise other persons in the performance of acts for which a license is
required. A license is not required for the performance of secretarial, clerical,
or administrative tasks, such as training personnel, performing duties generally
associated with office administration and personnel matters. Unlicensed employees,
agents, or associates may not solicit business for the broker or hold themselves
out as authorized to act as real estate brokers or salespersons.
(d)
As used in this chapter, the terms "property" and "real
property" have the same meaning as "real estate" as that term is defined in
the Act.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June
11, 1999.
TRD-9903454
Mark A. Moseley
General Counsel
Texas Real Estate Commission
Effective date: July 1, 1999
Proposal publication date: April 30, 1999
For further information, please call: (512) 465-3900
22 TAC §535.4
The Texas Real Estate Commission (TREC) adopts the repeal
of §535.4, concerning compensation paid by a salesperson, without changes
to the proposed text as published in the April 30, 1999, issue of the
As part of TREC's review of Chapter 535 of the Texas Administrative Code,
the provisions in §535.4 have been moved to §535.3 in connection
with an amendment to that section.
No comments were received regarding the proposal.
The repeal is adopted under Texas Civil Statutes, Article 6573a,
§5(h), which authorize the Texas Real Estate Commission to make and enforce
all rules and regulations necessary for the performance of its duties.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June
11, 1999.
TRD-9903455
Mark A. Moseley
General Counsel
Texas Real Estate Commission
Effective date: July 1, 1999
Proposal publication date: April 30, 1999
For further information, please call: (512) 465-3900
22 TAC §§535.11, 535.14, 535.18
The Texas Real Estate Commission (TREC) adopts the repeal
of §535.11, concerning the definition of real estate, §535.14, concerning
offers to dispose of real estate, and §535.18, concerning auctions, without
changes to the proposed text as published in the April 30, 1999, issue of
the
Texas Register
(24 TexReg 3289).
Adoption of the repeals is necessary to shorten TREC's rules by eliminating
unnecessary restatements of the agency's enabling legislation, Texas Civil
Statutes, Article 6573a or sections which duplicate the content of other sections.
No comments were received regarding the proposal.
The repeals are adopted under Texas Civil Statutes, Article 6573a,
§5(h), which authorize the Texas Real Estate Commission to make and enforce
all rules and regulations necessary for the performance of its duties.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June
11, 1999.
TRD-9903456
Mark A. Moseley
General Counsel
Texas Real Estate Commission
Effective date: July 1, 1999
Proposal publication date: April 30, 1999
For further information, please call: (512) 465-3900
22 TAC §§535.12, 535.13, 535.15-535.17, 535.21
The Texas Real Estate Commission (TREC) adopts an amendment
to §535.17, concerning appraisals, with changes to proposed text as published
in the April 30, 1999, issue of the
Texas Register
(24 TexReg 3289). The proposed amendments to §535.12, concerning
general definitions, §535.13, concerning dispositions of real estate,
§535.15, concerning negotiations, §535.16, concerning listings and
§535.21, concerning unimproved lot sales and listing publications are
adopted without changes and will not be republished.
The amendment to §535.12 deletes subsections which are unnecessary
because they merely restate the general definition of "real estate broker"
contained in Texas Civil Statutes, Article 6573a, (the Act) or address issues
which may be resolved by referring directly to the Act. The remaining language
was revised to make it easier to read.
The amendment to §535.13 combines several subsections to clarify the
activities for which a person is required to be licensed and updates the section
to make it consistent with recent Attorney General Letter Opinion Number 98-119,
which permits unlicensed employees of corporations and other business entities
to act for their employers. The amendment also clarifies that a entity may
be considered to be an owner if the entity either holds record title to the
property or has an equitable title or right acquired by contract with the
record title holder and that a corporation or limited liability company is
required to be licensed as a real estate broker if it or its employee receives
or expects to receive a valuable consideration from the record title holder
for negotiating a sale or other disposition of the property.
The amendment to §535.15 deletes provisions concerning activities
which may be performed by a broker's employees. The deleted provisions have
been combined and moved to §535.1 in connection with an amendment to
that section.
The amendment to §535.16 rewrites the section for clarity and deletes
unnecessary provisions which merely restate the law. A definition of the term
"net listing" was added to make the section easier to understand.
The amendment to §535.17 rewrites and shortens the section for clarity
and deletes subsections which merely restate the law or which address issues
which may be resolved by referring to the Act.
The Texas Association of Realtors commented that the proposed amendment
to §535.17 made a substantive change that may not have been intended,
in that deletion of the phrase "for a separate fee" would effectively extend
the disclosure requirements imposed by the section to every opinion of value
and market analysis prepared by a broker, when the section had been originally
intended to address only an opinion of value or analysis for which a separate
fee was being charged.
The commission agreed and modified the language on final adoption to require
the disclosure only when a separate fee is being charged.
The amendment to §535.21 rewrites the section for clarity and to eliminate
provisions which are repetitive.
Adoption of the amendments is necessary to complete the process of reviewing
TREC's rules and making them current and usable by the public.
The amendments are adopted under Texas Civil Statutes, Article
6573a, §5(h), which authorize the Texas Real Estate Commission to make
and enforce all rules and regulations necessary for the performance of its
duties.
§535.17.Appraisals.
(a)
A salesperson may make, sign, and present real estate appraisals
for the salesperson's sponsoring broker, but the salesperson must submit appraisals
in the broker's name and the broker is responsible for the appraisals.
(b)
Texas Civil Statutes, Article 6573a (the Act) does not
apply to appraisals performed by the employees of a financial institution
or investment firm in connection with a contemplated loan or investment by
their employers.
(c)
Except as provided by this section, appraisals of real
property performed in this state by Texas real estate licensees must be conducted
in accordance with the Uniform Standards of Professional Appraisal Practice
of the Appraisal Foundation in effect at the time the appraisal is performed.
If a real estate licensee, for a separate fee, provides an opinion of value
or comparative market analysis which does not conform with the Uniform Standards
of Professional Appraisal Practice of the Appraisal Foundation, the licensee
shall also provide the person for whom the opinion or analysis is prepared
with a written statement containing the following language: "THIS IS AN OPINION
OF VALUE OR COMPARATIVE MARKET ANALYSIS AND SHOULD NOT BE CONSIDERED AN APPRAISAL.
In making any decision that relies upon my work, you should know that I have
not followed the guidelines for development of an appraisal or analysis contained
in the Uniform Standards of Professional Appraisal Practice of the Appraisal
Foundation."
(d)
The statement required by subsection (c) of this section
must be made part of any written opinion or analysis report and must be reproduced
verbatim.
(e)
The exception allowed by subsection (c) of this section
does not apply to a transaction in which the Resolution Trust Corporation
or a federal financial institutions regulatory agency has required compliance
with the Uniform Standards of Professional Appraisal Practice of the Appraisal
Foundation.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June
11, 1999.
TRD-9903457
Mark A. Moseley
General Counsel
Texas Real Estate Commission
Effective date: July 1, 1999
Proposal publication date: April 30, 1999
For further information, please call: (512) 465-3900
22 TAC §§535.31-535.35
The Texas Real Estate Commission (TREC) adopts amendments
to §535.31, concerning exempt attorneys at law, §535.32, concerning
exempt attorneys in fact, §535.33, concerning exempt public officials,
§535.34, concerning exempt salespersons employed by an owner, and §535.35,
concerning exempt employees renting or leasing their employer's real estate,
without changes to the proposed text as published in the April 30, 1999, issue
of the
Texas Register
(24 TexReg 3292). The
text will not be republished. Adoption of the amendments is necessary to complete
the review of TREC's rules, reducing their volume wherever possible and making
them easier for the public to use.
The amendment to §535.31 restates the exemption for licensed attorneys
and combines several subsections to make the section easier to read. Provisions
relating to the attorney's client and non-client relationships, State Bar
of Texas rules and membership in trade associations have been deleted as unnecessary.
The amendment to §535.32 makes the section concerning the exemption for
attorneys-in-fact easier to read. The amendment to §535.33 restates the
exemption for public officials and deletes subsections which merely provide
examples of public officials exempt from the requirement of holding a license
or registration issued by TREC. The amendment to §535.34 deletes unnecessary
provisions which merely provide examples of relationships between a builder
and other persons who are not entitled to claim an exemption from licensing
requirements. The amendment to §535.35 makes nonsubstantive changes and
deletes a subsection that merely repeats the statutory exemption for employees
renting or leasing their employer's real estate.
No comments were received regarding the proposal.
The amendments are adopted under Texas Civil Statutes, Article
6573a, §5(h), which authorize the Texas Real Estate Commission to make
and enforce all rules and regulations necessary for the performance of its
duties.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June
11, 1999.
TRD-9903458
Mark A. Moseley
General Counsel
Texas Real Estate Commission
Effective date: July 1, 1999
Proposal publication date: April 30, 1999
For further information, please call: (512) 465-3900
Part XXIII.
Texas Real Estate Commission
Subchapter B. Definitions
Subchapter C. Exemptions to Requirement of Licensure
Subchapter D. The Commission