Part 1.
TEXAS BOARD OF ARCHITECTURAL EXAMINERS
Chapter 1.
ARCHITECTS
Subchapter B. REGISTRATION
22 TAC §1.21
The Texas Board of Architectural Examiners adopts the amendment
to §1.21 concerning requirements for individuals applying for architectural
registration. The proposal to amend this rule was published in the December
24, 1999 issue of the
Texas Register
(24 TexReg
11661). The amendment is being adopted with changes. The changes are to replace
cumbersome wording and further clarify certain terms used in the rule.
The section sets forth the requirements which must be met before an individual
may take the Architect Registration Examination in the State of Texas. The
section requires such an individual to have received a professional degree
from an architectural education program accredited by the National Architectural
Accreditation Board and have successfully completed the requirements of the
Intern Development Program. The section provides that any individual who began
his or her architectural education or experience before September 1, 1999
shall be subject to the rules and regulations in effect at that time. The
amendment will ensure that all individuals applying for architectural registration
in the State of Texas will have satisfied certain educational requirements
determined necessary by the Board to protect the health, safety, and welfare
of the citizens of the State of Texas.
There were no comments received pertaining to this amendment.
The amendment is adopted under Section 3(b) of the Architects'
Registration Law, Article 249a, Vernon's Texas Civil Statutes, which provides
the Texas Board of Architectural Examiners with authority to promulgate rules
necessary to the proper administration of the Act.
§1.21.Eligibility.
(a)
In order to obtain architectural registration by examination
in Texas, an applicant shall:
(1)
have a professional degree from an architectural educational
program accredited by the National Architectural Accreditation Board (NAAB)
and
(2)
shall successfully demonstrate completion of the requirements
of the Intern Development Program (IDP) pursuant to the Texas Table of Diversified
Experience Requirements for the IDP.
(b)
The following applicants for registration shall not be
required to demonstrate that they have completed the requirements of the IDP:
(1)
applicants for registration by examination who successfully
demonstrate that prior to January 1, 1984, they acquired eight years of acceptable
architectural experience or eight years of a combination of acceptable education
and experience;
(2)
applicants for reciprocal registration who successfully
demonstrate that they acquired at least three years of acceptable architectural
experience following registration in another jurisdiction; such architectural
experience shall be evaluated according to the Texas Table of Equivalents
for architecture.
(c)
An applicant for architectural registration by examination
who commenced his/her architectural education or experience prior to September
1, 1999, shall be subject to the rules and regulations relating to educational
and experiential requirements as they existed on August 31, 1999.
(d)
For purposes of this section, an applicant shall be considered
to have "commenced" his/her architectural education upon enrollment in an
acceptable architectural educational program.
(e)
Applicants for the Architect Registration Examination shall
process application records through the National Council of Architectural
Registration Boards (NCARB).
(f)
Pursuant to the provisions of §231.302 of the Texas
Family Code, each applicant shall submit his or her social security number
on forms prescribed by the Board. Such information shall be considered confidential
as stated in §231.302(e) of the Texas Family Code.
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 March 31, 2000.
TRD-200002307
Cathy L. Hendricks, ASID/IIDA
Executive Director
Texas State Board of Architectural Examiners
Effective date: April 20, 2000
Proposal publication date: December 24, 1999
For further information, please call: (512) 305-8535
Chapter 104.
CONTINUING EDUCATION
22 TAC §104.1
The State Board of Dental Examiners adopts amendments to §104.1
concerning Continuing Education Requirements without changes to the proposed
text published in the February 4, 2000 issue of the
Texas Register
(25 TexReg 659).
The amended rule provides for an increased awareness of the requirements
to obtain acceptable continuing education as a prerequisite to license renewal.
The change to paragraph (1) of the rule now provides that excess continuing
education hours may be banked and applied to subsequent years' requirements.
A limit is placed on the number of excess hours that can be carried forward.
The change to paragraph (2) clarifies the process for transition from prior
continuing education requirements to the current requirements, mandated by
new legislation.
No comments were received regarding adoption of the proposal.
The amended rule is adopted under Texas Government Code §2001.021
et seq.; Texas Civil Statutes, the Occupations Code §254.001 which provides
the State Board of Dental Examiners with the authority to adopt and promulgate
rules consistent with the Dental Practice Act, and Chapter 257, §257.005
which requires the board to implement rules concerning continuing education.
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 March 27, 2000.
TRD-200002212
Jeffry R. Hill
Executive Director
State Board of Dental Examiners
Effective date: April 16, 2000
Proposal publication date: February 4, 2000
For further information, please call: (512) 463-6400
22 TAC §104.4
The State Board of Dental Examiners adopts amendments to §104.4
concerning Continuing Education Penalties without changes to the text published
in the February 4, 2000 issue of the
Texas Register
(25 TexReg 660).
The rule as amended is in compliance with former Article 4545a, as amended
by Senate Bill 964, 76 Legislature, 1999. Language in subsection (d) was deleted
since proof of completion of acceptable continuing education is now a prerequisite
to license renewal. Procedures to address falsification of attestation remain
in place.
No comments were received regarding adoption of the proposal.
The amended rule is adopted under Texas Government Code §2001.021
et seq.; Texas Civil Statutes, the Occupations Code §254.001 which provides
the State Board of Dental Examiners with the authority to adopt and promulgate
rules consistent with the Dental Practice Act, and Chapter 257, §257.005
which requires the board to implement rules concerning continuing education.
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 March 27, 2000.
TRD-200002211
Jeffry R. Hill
Executive Director
State Board of Dental Examiners
Effective date: April 16, 2000
Proposal publication date: February 4, 2000
For further information, please call: (512) 463-6400
22 TAC §104.5
The State Board of Dental Examiners adopts amendments to §104.5
concerning Continuing Education Auditable Documentation without changes to
the text published in the February 4, 2000 issue of the
Texas Register
(25 TexReg 661).
The amended rule at subsection (a) now provides that the period for retention
of documentation is changed to three years to conform with the reporting periods
mandated by new legislation. Language in subsection (b), (c) and (d) remain
in place, unchanged. Language in subsection (e) of the rule was rendered obsolete
by new legislation and was deleted.
No comments were received regarding adoption of the proposal.
The amended rule is adopted under Texas Government Code §2001.021
et seq.; Texas Civil Statutes, the Occupations Code §254.001 which provides
the State Board of Dental Examiners with the authority to adopt and promulgate
rules consistent with the Dental Practice Act, and Chapter 257, §257.005
which requires the board to implement rules concerning continuing education.
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 March 27, 2000.
TRD-200002210
Jeffry R. Hill
Executive Director
State Board of Dental Examiners
Effective date: April 16, 2000
Proposal publication date: February 4, 2000
For further information, please call: (512) 463-6400
22 TAC §112.1, §112.2
The State Board of Dental Examiners adopts new Chapter 112,
Visual Dental Health Inspections, new §112.1, concerning Definitions
and new §112.2 concerning Visual Dental Health Inspections without changes
to the proposed text published in the February 4, 2000 issue of the
The new rules will provide for enhanced dental health among the school
age children of Texas making it clear that health care workers who inspect
the oral health conditions of certain persons, are not practicing dentistry,
so long as the requirements of these rules are met. It is anticipated that
these rules will aid in early detection and correction of dental diseases
in children, as many of the inspections will be conducted by school nurses.
No comments were received regarding adoption of the proposal.
The new rules are adopted under Texas Government Code §2001.021
et seq.; Texas Civil Statutes, the Occupations Code §254.001 which provides
the State Board of Dental Examiners with the authority to adopt and promulgate
rules consistent with the Dental Practice 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 March 27, 2000.
TRD-200002213
Jeffry R. Hill
Executive Director
State Board of Dental Examiners
Effective date: April 16, 2000
Proposal publication date: February 4, 2000
For further information, please call: (512) 463-6400
22 TAC §116.5
The State Board of Dental Examiners adopts amendments to §116.5
concerning Exemptions, with changes to the text published in the February
4, 2000 issue of the
Texas Register
(25 TexReg
662).
The rule as proposed was intended to effect a statutory change to procedures
for certain laboratories to allow grandfathering so long as the laboratory
has been registered each relevant year. The prior statute required continuous
registration while at the same time allowing renewal of a registration after
expiration, by payment of a penalty. The new rule will allow continuation
of grandfathered status if a laboratory registration is renewed during that
period.
No comments were received regarding adoption of the proposal.
The amended rule is adopted under Texas Government Code §2001.021
et seq.; Texas Civil Statutes, the Occupations Code §254.001 which provides
the State Board of Dental Examiners with the authority to adopt and promulgate
rules consistent with the Dental Practice Act, and §266.151 et seq.,
which provides for certification, registration, and renewal requirements of
dental laboratories in Texas.
§116.5.Exemption.
(a)
The owner of a dental laboratory that was registered with
the State Board of Dental Examiners September 1, 1987, is not required to
submit proof that the laboratory has at least one certified dental technician
employed by and working on the premises provided that:
(1)
the registration remains current and all registration fees
for the succeeding year are paid prior to the expiration of the statutory
renewal period;
(2)
the beneficial ownership of at least 51% interest
in the laboratory is not transferred; and
(3)
the owner is employed on the premises of the laboratory
at least 30 hours per week.
(b)
For this section, the designated employee of the dental
laboratory must work on the premise a minimum of 30 hours per week.
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 March 27, 2000.
TRD-200002214
Jeffry R. Hill
Executive Director
State Board of Dental Examiners
Effective date: April 16, 2000
Proposal publication date: February 4, 2000
For further information, please call: (512) 463-6400
Chapter 221.
ADVANCED PRACTICE NURSES
22 TAC §§221.1 - 221.14
The Board of Nurse Examiners repeals Chapter 221, §§221.1
- 221.14, concerning Advanced Practice Nurses. The board met on January 20-21,
2000 and approved a repeal of Chapter 221 and adoption of new Chapter 221
which establishes minimum standards for the provision of anesthesia services
in outpatient settings by certified registered nurses anesthetists (CRNAs).
Most of Chapter 221 remains unchanged, but the repeal and readoption of the
entire chapter is based on a renumbering scheme which resulted from the proposed
placement of new additions.
The Nursing Practice Act was amended during the 76th Legislative Session
by adding Article 4527e which requires the Board of Nurse Examiners to adopt
rules that regulate the provision of anesthesia services by persons licensed
by the board in outpatient surgical settings that are not a part of licensed
hospitals or ambulatory surgical centers.
No comments were received concerning the proposed repeal.
The repeal and new Chapter 221 are being adopted under the Nursing
Practice Act, Texas Occupations Code, §301.151, which provides the Board
of Nurse Examiners with the authority and power to make and enforce all rules
and regulations necessary for the performance of its duties and conducting
of proceedings before it.
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 March 31, 2000.
TRD-200002295
Katherine A. Thomas, MN, RN
Executive Director
Board of Nurse Examiners
Effective date: April 20, 2000
Proposal publication date: February 18, 2000
For further information, please call: (512) 305-6811
22 TAC §§221.1 - 221.15
The Board of Nurse Examiners adopts new Chapter 221, §§221.1
- 221.15, concerning Advanced Practice Nurses, with one change to the proposed
text as published in the February 4, 2000 issue of the
Texas Register
(25 TexReg 663). The change to §221.14 is made
for clarification and does not require Board approval or re-proposal. The
new rules satisfy the Board's mandate pursuant to Article 4527(e) of the Texas
Revised Civil Statutes regarding Certified Registered Nurse Anesthetists (CRNAs).
Additionally, the new rules effectuate a nonsubstantive repeal and readoption
of former Chapter 221 in order to renumber and make room for the new CRNA
provisions.
No comments were received concerning the proposed adoption. Staff has amended §221.14(a)(2)
after the discovery of a typographical error. Section 221.14(b) - 221.14(f)
was changed to 221.14(b)(3) - 221.14(f) because it appeared that the rule
as originally written exempted nurse anesthetists from knowing and conforming
to the Nursing Practice Act and other applicable standards if they are working
in the listed settings.
The rules are adopted under the Nursing Practice Act, Texas Occupations
Code, §301.151, which provides the Board of Nurse Examiners with the
authority and power to make and enforce all rules and regulations necessary
for the performance of its duties and effectuate the purposes of the Act;
and Article 4527e, Section 2 which provides that the Board of Nurse Examiners
establish the minimum standards for the provision of anesthesia services in
outpatient settings by persons licensed by the board.
There are no other rules, codes, or statutes that will be affected by this
proposal.
§221.14.Provision of Anesthesia Services by Nurse Anesthetists in Outpatient Settings.
(a)
Purpose. The purpose of these rules is to identify the
roles, and responsibilities of certified registered nurse anesthetists authorized
to provide anesthesia services in outpatient settings and to provide the minimum
acceptable standards for the provision of anesthesia services in outpatient
settings.
(1)
On or after August 31, 2000 certified registered nurse
anesthetists shall comply with §§221.14(b)-221.14(e) of this title
in order to be authorized to provide general anesthesia, regional anesthesia,
or monitored anesthesia care in outpatient settings.
(2)
§§221.14(b)(3)-221.14(f) do not apply to
the registered nurse anesthetist who practices in the following:
(A)
an outpatient setting in which only local anesthesia, peripheral
nerve blocks, or both are used;
(B)
an outpatient setting in which only anxiolytics and analgesics
are used and only in doses that do not have the probability of placing the
patient at risk for loss of the patient's life-preserving protective reflexes;
(C)
a licensed hospital, including an outpatient facility of
the hospital that is separately located apart from the hospital;
(D)
a licensed ambulatory surgical center;
(E)
a clinic located on land recognized as tribal land by the
federal government and maintained or operated by a federally recognized Indian
tribe or tribal organization as listed by the United States secretary of the
interior under 25 U.S.C. Section 479-1 or as listed under a successor federal
statute or regulation
(F)
a facility maintained or operated by a state or governmental
entity;
(G)
a clinic directly maintained or operated by the United
States or by any of its departments, officers, or agencies; and
(H)
an outpatient setting accredited by
(i)
the Joint Commission on Accreditation of Healthcare Organizations
relating to ambulatory surgical centers,
(ii)
the American Association for the Accreditation of Ambulatory
Surgery Facilities, or
(iii)
the Accreditation Association for Ambulatory Health Care.
(b)
Roles and Responsibilities
(1)
Certified registered nurse anesthetists shall follow current,
applicable standards and guidelines as put forth by the American Association
of Nurse Anesthetists (AANA) and other relevant national standards regarding
the practice of nurse anesthesia as adopted by the AANA or the Board.
(2)
Certified registered nurse anesthetists shall know
and conform to the Texas Nurse Practice Act and the Board's Rules and Regulations
relating to Professional Nurse Education, Licensure and Practice as well as
all federal, state, and local laws, rules, or regulations affecting the practice
of nurse anesthesia. Compliance with all building, fire, and safety codes
shall also be maintained. A two-way communication source not dependent on
electrical current shall be available. Each location should have sufficient
electrical outlets to satisfy anesthesia machine and monitoring equipment
requirements, including clearly labeled outlets connected to an emergency
power supply. Sites shall also have a secondary power source as appropriate
for equipment in use in case of power failure.
(3)
In an outpatient setting, where a physician has delegated
to a certified registered nurse anesthetist the ordering of drugs and devices
necessary for the nurse anesthetist to administer an anesthetic or an anesthesia-related
service ordered by a physician, a certified registered nurse anesthetist may
select, obtain and administer drugs, including determination of appropriate
dosages, techniques and medical devices for their administration and in maintaining
the patient in sound physiologic status. This order need not be drug-specific,
dosage specific, or administration-technique specific. Pursuant to a physician's
order for anesthesia or an anesthesia-related service, the certified registered
nurse anesthetist may order anesthesia-related medications during perianesthesia
periods in the preparation for or recovery from anesthesia. In providing anesthesia
or an anesthesia-related service, the certified registered nurse anesthetist
shall select, order, obtain and administer drugs which fall within categories
of drugs generally utilized for anesthesia or anesthesia-related services
and provide the concomitant care required to maintain the patient in sound
physiologic status during those experiences.
(c)
Standards.
(1)
The certified registered nurse anesthetist shall perform
a pre-anesthetic assessment, counsel the patient, and prepare the patient
for anesthesia per current AANA standards. Informed consent for the planned
anesthetic intervention shall be obtained from the patient/legal guardian
and maintained as part of the medical record. The consent must include explanation
of the technique, expected results, and potential risks/complications. Appropriate
pre-anesthesia diagnostic testing and consults shall be obtained per indications
and assessment findings.
(2)
Physiologic monitoring of the patient shall be determined
by the type of anesthesia and individual patient needs. Minimum monitoring
shall include continuous monitoring of ventilation, oxygenation, and cardiovascular
status. Monitors shall include, but not be limited to, pulse oximetry and
EKG continuously and non-invasive blood pressure to be measured at least every
five minutes. If general anesthesia is utilized, then an O2 analyzer and end-tidal
CO2 analyzer must also be used. A means to measure temperature shall be readily
available and utilized for continuous monitoring when indicated per current
AANA standards. An audible signal alarm device capable of detecting disconnection
of any component of the breathing system shall be utilized. The patient shall
be monitored continuously throughout the duration of the procedure by the
certified registered nurse anesthetist. Postoperatively, the patient shall
be evaluated by continuous monitoring and clinical observation until stable
by a licensed health care provider. Monitoring and observations shall be documented
per current AANA standards. In the event of an electrical outage which disrupts
the capability to continuously monitor all specified patient parameters, at
a minimum, heart rate and breath sounds will be monitored on a continuous
basis using a precordial stethoscope or similar device, and blood pressure
measurements will be reestablished using a non-electrical blood pressure measuring
device until electricity is restored.
(3)
All anesthesia-related equipment and monitors shall
be maintained to current operating room standards. All devices shall have
regular service/maintenance checks at least annually or per manufacturer recommendations.
Service/maintenance checks shall be performed by appropriately qualified biomedical
personnel. Prior to the administration of anesthesia, all equipment/monitors
shall be checked using the current FDA recommendations as a guideline. Records
of equipment checks shall be maintained in a separate, dedicated log which
must be made available upon request. Documentation of any criteria deemed
to be substandard shall include a clear description of the problem and the
intervention. If equipment is utilized despite the problem, documentation
must clearly indicate that patient safety is not in jeopardy. All documentation
relating to equipment shall be maintained for a period of time as determined
by board guidelines.
(4)
Each location must have emergency supplies immediately
available. Supplies should include emergency drugs and equipment appropriate
for the purpose of cardiopulmonary resuscitation. This must include a defibrillator,
difficult airway equipment, and drugs and equipment necessary for the treatment
of malignant hyperthermia if "triggering agents" associated with malignant
hyperthermia are used or if the patient is at risk for malignant hyperthermia.
Equipment shall be appropriately sized for the patient population being served.
Resources for determining appropriate drug dosages shall be readily available.
The emergency supplies shall be maintained and inspected by qualified personnel
for presence and function of all appropriate equipment and drugs at intervals
established by protocol to ensure that equipment is functional and present,
drugs are not expired, and office personnel are familiar with equipment and
supplies. Records of emergency supply checks shall be maintained in a separate,
dedicated log and made available upon request. Records of emergency supply
checks shall be maintained for a period of time as determined by board guidelines.
(5)
Certified registered nurse anesthetists shall maintain
current competency in advanced cardiac life support and must demonstrate proof
of continued competency upon re-registration with the Board. Competency in
pediatric advanced life support shall be maintained for those certified registered
nurse anesthetists whose practice includes pediatric patients. Certified registered
nurse anesthetists shall verify that at least one person in the setting other
than the person performing the operative procedure maintains current competency
in basic life support (BLS) at a minimum.
(6)
Certified registered nurse anesthetists shall verify
that the appropriate policies or procedures are in place. Policies, procedures,
or protocols shall be evaluated and reviewed at least annually. Agreements
with local emergency medical service (EMS) shall be in place for purposes
of transfer of patients to the hospital in case of an emergency. EMS agreements
shall be evaluated and re-signed at least annually. Policies, procedures,
and transfer agreements shall be kept on file in the setting where procedures
are performed and shall be made available upon request. Policies or procedures
must include, but are not limited to:
(A)
Management of outpatient anesthesia--At a minimum, these
must address:
(i)
Patient selection criteria
(ii)
Patients/providers with latex allergy
(iii)
Pediatric drug dosage calculations, where applicable
(iv)
ACLS algorithms
(v)
Infection control
(vi)
Documentation and tracking use of pharmaceuticals: including
controlled substances, expired drugs and wasting of drugs
(vii)
Discharge criteria
(B)
Management of emergencies to include, but not be limited
to:
(i)
Cardiopulmonary emergencies
(ii)
Fire
(iii)
Bomb threat
(iv)
Chemical spill
(v)
Natural disasters
(vi)
Power outage
(C)
EMS response and transport--Delineation of responsibilities
of the certified registered nurse anesthetist and person performing the procedure
upon arrival of EMS personnel. This policy should be developed jointly with
EMS personnel to allow for greater accuracy.
(D)
Pursuant to 22 TAC §217.11(16), adverse reactions/events,
including but not limited to those resulting in a patient's death intraoperatively
or within the immediate postoperative period shall be reported in writing
to the Board and other applicable agencies within 15 days. Immediate postoperative
period shall be defined as 72 hours.
(d)
Registration.
(1)
Beginning April 1, 2000, each certified registered nurse
anesthetist who intends to provide anesthesia services in an outpatient setting
must register with the board and submit the required registration fee, which
is non-refundable. The information provided on the registration form shall
include, but not be limited to, the name and business address of each outpatient
setting(s) and proof of current competency in advanced life support.
(2)
Registration as an outpatient anesthesia provider
must be renewed and the registration renewal fee paid on a biennial basis,
at the time of registered nurse licensure renewal.
(e)
Inspections and Advisory Opinions.
(1)
The Board may conduct on-site inspections of outpatient
settings, including inspections of the equipment owned or leased by a certified
registered nurse anesthetist and of documents that relate to provision of
anesthesia in an outpatient setting, for the purpose of enforcing compliance
with the minimum standards. Inspections may be conducted as an audit to determine
compliance with the minimum standards or in response to a complaint. The Board
may contract with another state agency or qualified person to conduct these
inspections. Unless it would jeopardize an ongoing investigation, the board
shall provide the certified registered nurse anesthetist at least five business
days' notice before conducting an on-site inspection.
(2)
The Board may, at its discretion and on payment of
a fee, conduct on-site inspections of outpatient settings in response to a
request from a certified registered nurse anesthetist for an inspection and
advisory opinion.
(A)
The Board may require a certified registered nurse anesthetist
to submit and comply with a corrective action plan to remedy or address current
or potential deficiencies with the nurse anesthetist's provision of anesthesia
in an outpatient setting.
(B)
A certified registered nurse anesthetist who requests and
relies on an advisory opinion of the board may use the opinion as mitigating
evidence in an action or proceeding by the board to impose an administrative
penalty or assess a monetary fine. The board shall take proof of reliance
on an advisory opinion into consideration and mitigate the imposition of administrative
penalties or the assessment of a monetary fine accordingly.
(C)
An advisory opinion issued by the board is not binding
on the board and the board, except as provided for in subsection (a) of this
section, may take any action in relation to the situation addressed by the
advisory opinion that the Board considers appropriate.
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 March 31, 2000.
TRD-200002296
Katherine A. Thomas, MN, RN
Executive Director
Board of Nurse Examiners
Effective date: April 20, 2000
Proposal publication date: February 4, 2000
For further information, please call: (512) 305-6811
Chapter 535.
PROVISIONS OF THE REAL ESTATE LICENSE ACT
Subchapter G. MANDATORY CONTINUING EDUCATION
22 TAC §§535.71 - 535.73
The Texas Real Estate Commission (TREC) adopts amendments
to §§535.71 - 535.73, concerning mandatory continuing education
(MCE) for real estate licensees, with changes to the proposed text as published
in the February 25, 2000, issue of the
Texas Register
(25 TexReg 1508).
The amendment to §535.71 addresses the process by which MCE providers,
courses and instructors are approved by TREC. The amendment generally clarifies
key definitions, simplifies the approval process for courses and instructors
and provides alternative means of grading examinations and correspondence
course work. Restrictions on the number of hours for correspondence courses
and the offering of MCE courses in a broker's office have been removed. A
TREC publication, "Guidelines for Creating a Course Instructor's Manual for
Mandatory Continuing Education Courses", MCE Form 13-0, has been revised and
updated and adopted by reference in the amendment to §535.71.
The amendment to §535.72 addresses the presentation of courses, advertising
and records. The amendment clarifies filing requirements for MCE providers,
responsibility for the conduct of disruptive students and requirements for
offering courses in a broker's office. A restriction against promoting the
sale of goods of services was revised to clarify that the restriction addressed
only promotions occurring during class presentations.
The amendment to §535.73 addresses compliance and enforcement. Provisions
for audits and enforcement have been modified to be consistent with those
recently adopted for accredited schools. The amendment authorizes commission
employees to file complaints against providers and instructors if documents
filed with the commission provides reasonable cause to believe a violation
of the rules have occurred, and providers and instructors are obligated to
cooperate with TREC in an audit or investigation and to provide documents
or information requested by the commission.
A number of comments were received on the proposal. The Texas Association
of Realtors (TAR) generally supported adoption of the amendments but also
suggested a number of changes. TAR suggested several technical changes in §535.71
to clarify that instructor manuals are not required for courses approved for
single offerings. The commission concurred and made the suggested changes.
TAR also suggested that providers have the flexibility to offer such courses
again without having to file another full application if the provider notifies
the commission and pays a $25 fee. The commission determined that it was appropriate
to permit limited additional offerings of such courses but that the courses
should not be offered more than four times without undergoing the more comprehensive
review required of courses that are approved for unlimited offerings. The
single course offering process was intended to streamline the approval process
for courses that would be offered to a limited number of students. To permit
a provider unlimited offerings of the course without more detailed review
of the course material could result in a dilution of course quality and result
in all providers bypassing such review by having their courses approved under
this exception to the usual review process. The final text permits the provider
to offer a course originally approved for a single offering up to four times
during the year after the course is approved or until the provider's authority
to act as a provider comes to an end. At least seven days prior to the subsequent
offerings, the provider must notify the commission of the date, time, location,
and fee to be charged and pay a fee of $25 for each subsequent offering. TAR
also suggested that instructors who have been qualified to teach in the Realtor's
Institute, like the instructors holding CREI and DREI credentials, should
be considered qualified to act as MCE instructors. The commission agreed,
but also expanded the section to recognize that instructors who have received
comparable credentials form other organizations also would be deemed to meet
the teaching experience and education requirements to be an MCE instructor.
The commission also concurred with TAR's suggestions broadening the scope
of material to be presented by computer and permitting course examinations
to be taken by computer and modified the final text of §535.71 accordingly.
The commission also concurred with a suggestion from TAR that it might be
difficult for a provider to ensure that an instructor was available at all
times to answer students' questions in a course presented by an alternative
delivery system such as by computer. The section was modified to require a
qualified person to be available, rather than requiring an instructor at all
times. TAR also suggested deletion of provisions relating to space in handouts
for notetaking, requiring the filing of course schedules and itemization of
fees in advertising and prohibiting the promotion of goods or services during
course presentations. The commission determined that these requirements or
prohibitions did not create excessive burdens for providers and tended to
benefit students by providing more information or requiring providers to use
class session time for educational purposes. The commission accordingly declined
to make the suggested changes.
Several comments opposed the elimination of the current restriction on
the offering of MCE courses in a broker's offices as a conflict of interest
or lowering of course quality. The commission had previously eliminated that
restriction in its regulation of core real estate courses offered by TREC's
accredited schools and was advised by its legal counsel that it should treat
all its regulated providers consistently. The commission declined to make
this suggested change to restrict where MCE courses could be held. The amendment
to §535.72 ensures that MCE classroom courses will be presented in a
location conducive to instruction, because the location must be separate from
any work area.
Based on suggestions from TREC staff, the commission also made a number
of nonsubstantive changes in the final text to make the sections easier to
read.
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.
§535.71.Mandatory Continuing Education: Approval of Providers, Courses and Instructors.
(a)
The following words and terms, when used in these sections,
shall have the following meanings, unless the context clearly indicates otherwise.
(1)
Act - The Real Estate License Act, Texas Civil Statutes,
Article 6573a.
(2)
Applicant - A person seeking approval to be a provider
or instructor of a course for which mandatory continuing education credit
is given.
(3)
Hour - Fifty minutes of actual session time.
(4)
Commission - The Texas Real Estate Commission.
(5)
Day - A calendar day.
(6)
Instructor - A person approved by the Texas Real Estate
Commission to teach mandatory continuing education courses.
(7)
MCE - Mandatory Continuing Education.
(8)
Person - An individual, partnership, or a corporation,
foreign or domestic.
(9)
Proctor- A person who monitors a final examination
for a course offered by a provider under the guidelines contained in this
section. A proctor may be a course instructor, the provider, an employee of
a college or university testing center, a librarian, or other person approved
by the commission.
(10)
Provider- A person approved by the Texas Real Estate
Commission to offer courses for which mandatory continuing education credit
is given.
(11)
Student- An individual taking an MCE course for credit.
(b)
A person who wishes to offer courses accepted by the commission
for MCE credit shall apply to the commission for approval to be an MCE provider
and for approval of each MCE course using application forms prepared by the
commission. The commission may refuse to accept any application which is not
complete or which is not accompanied by the appropriate filing fee. Each prospective
provider shall submit a provider application and at least one principal information
form. Only instructors approved by the commission for that subject area may
teach that course.
(c)
The commission adopts by reference the following forms
published and available from the commission, P.O. Box 12188, Austin, Texas,
78711-2188:
(1)
MCE Form 1A-1, MCE Provider Application;
(2)
MCE Form 1B-1, MCE Provider Application Supplement;
(3)
MCE Form 2-2, MCE Principal Information Form;
(4)
MCE Form 3A-1, MCE Course Application;
(5)
MCE Form 3B-2, MCE Course Application Supplement;
(6)
MCE Form 3C-1, MCE Single Course Offering Application;
(7)
MCE Form 8-3, MCE Course Completion Roster;
(8)
MCE Form 9-3, Alternative Instructional Methods Reporting
Form;
(9)
MCE Form 10-0, MCE Out of State Course Credit Request;
(10)
MCE Form 11-3, MCE Instructor Credit Request;
(11)
MCE Form 12-1, Individual MCE Credit Request for
State Bar Course;
(12)
MCE Form 12A-0, Provider MCE Credit Request for State
Bar Course; and
(13)
MCE Form 13-0 , Guidelines for Creating a Course
Instructor's Manual for Mandatory Continuing Education Courses.
(d)
To be approved as an MCE provider, a person must satisfy
the commission as to the person's ability to administer with honesty, trustworthiness
and integrity a course of continuing education in MCE subjects approved by
the commission. If the person proposes to employ independent contractors to
conduct or to administer the courses, any independent contractor named in
the application must meet this standard as if the independent contractor were
the applicant; however, the applicant is responsible for responding to communications
from the commission relating to the application.
(e)
To be approved to offer a course for MCE credit, the provider
must satisfy the commission that the course subject matter is appropriate
for a continuing education course for real estate licensees and that the information
provided in the course will be current and accurate.
(1)
A provider applicant must submit an MCE Form 3A-1, MCE
Course Application, the first time approval is sought to offer an MCE course.
Prior to advertising or offering a course offered by another provider the
subsequent provider shall complete MCE Form 3B-2, file the form with the commission
and receive written acknowledgment from the commission that all necessary
documentation has been filed. Except for single course offerings, providers
shall submit an instructor's manual for each proposed course. The commission
may require a copy of the previously approved instructor's manual to be submitted
for each previously approved course the provider intends to offer. Subsequent
providers shall offer the course as originally approved or as revised with
the approval of the commission and shall use all materials required in the
original or revised course.
(2)
The commission may approve a course for a single offering
without regard to the requirements of paragraph (1) of this subsection. The
provider must submit MCE Form, 3C-1, MCE Single Course Offering Application
and receive written authorization from the commission to offer the course
prior to offering the course. A single course offering approved by the commission
may be offered by the provider no more than four times during a period of
one year after the course is approved or until the provider's authority to
act as a provider expires or is withdrawn for cause, whichever occurs first.
At least seven days prior to offering a course more than once, the provider
must notify the commission of the date, time, location, and fee to be charged
for the subsequent offerings and pay a fee of $25 for each subsequent offering.
(f)
To be approved as an instructor of any MCE course, a person
must satisfy the commission as to the person's competency in the subject matter
to be taught and ability to teach effectively. Except for instructors of single
course offerings, if the person is not currently approved by the commission
to teach the subject areas of the course, the person must submit Form ED 4-0,
Instructor Application, and meet the requirements of §535.64(I) of this
title (relating to Accreditation of Schools and Approval of Courses and Instructors).
A person who has received a credential as a certified real estate instructor
(CREI), distinguished real estate instructor (DREI), an instructor of the
Realtor Institute (GRI), or an instructor who has received a comparable credential
from another organization as determined by the commission will be deemed to
have met the requirements of §535.64(I) as regards teaching experience
and education. The commission may also approve an instructor for a single
offering of a course. The provider must submit an MCE Form 3C-1, MCE Single
Course Offering Application, and provide a resume to show that the proposed
instructor is qualified to teach the subject matter.
(g)
An applicant may be requested to provide additional information,
and the commission may terminate an application without further notice if
the applicant fails to provide the additional information within 60 days of
the mailing of a request by the commission.
(h)
Fees shall be established by the commission in accordance
with the provisions of the Act, §7A, at such times as the commission
deems appropriate. Fees are not refundable and must be submitted in the form
of a check or money order, or, in the case of state agencies, colleges or
universities, in a form of payment acceptable to the commission.
(i)
The commission may authorize the head of the education
division of the commission, or a designate, to determine whether applications
for MCE providers, courses or instructors should be approved. The commission
may disapprove an application for approval as a provider or instructor for
the same reasons as the commission may disapprove an application for a real
estate license. If an application is disapproved, written notice detailing
the basis of the decision shall be provided to the applicant.
(j)
An applicant may appeal a disapproval by filing with the
commission a written request for a hearing within 10 days after the receipt
of the notice of disapproval. Following the hearing, the commission may sustain
or withdraw the disapproval or establish conditions for the approval of a
provider, course or instructor. Proceedings involving applications shall be
conducted in accordance with the Administrative Procedure and Texas Register
Act, Texas Civil Statutes, Article 6252-13a. Venue for any hearing conducted
under this section shall be in Travis County.
(k)
A course offered by a provider to satisfy all or part of
the six hours of legal topics required by the Act, §7A, must include
one or more of the legal topics listed in the Act or approved by the commission.
The commission shall periodically publish lists of additional legal topics
approved for MCE credit.
(l)
A course must be devoted to one or more of the subjects
specified under the course titles in the Act, §7(a)(2)-(4) and §7(a)(7)-(10),
to real estate professionalism and ethics or to other subjects approved by
the commission for MCE credit. MCE courses must be presentations of relevant
issues and changes within the subject areas as they apply to the practice
of real estate in the current market or topics which increase or support the
licensee's development of skill and competence. Courses approved by the commission
for core real estate course credit provided in the Act, §7(d)-(e), may
be accepted for satisfying MCE requirements provided the student files a course
completion certificate with the commission. MCE courses may be accepted by
the commission as real estate related courses for satisfying the education
requirements of §7(d)-(e) of the Act. Courses related to technology,
such as the use of personal computers, must be primarily devoted to the application
of technology to the practice of the licensee.
(m)
Providers must furnish students with copies, for students'
permanent use, of any printed material which is the basis for a significant
portion of the course. Ample space must be provided on handouts for note taking
or completion of any written exercises. If a provider charges fees for supplies,
materials, or books needed in course work, the fees must be itemized in a
written statement provided to each student by the provider before the student
registers for the course.
(n)
If a provider does not maintain a fixed office in this
state for the duration of the provider's approval to offer courses, the provider
shall designate a resident of this state as attorney-in-fact to accept service
of process and act as custodian of any records in Texas which the provider
is required to maintain by these sections. A power-of-attorney designating
the resident must be filed with the commission in a form acceptable to the
commission.
(o)
Unless withdrawn earlier for cause as provided by these
sections, a provider's authority to offer courses for which MCE credit is
given expires two years from the date the provider is approved by the commission.
Authority to offer any MCE courses ends with the expiration of the provider's
approval, and the provider must pay current fees and reapply for approval
as a provider in order to offer MCE courses again. Except for a course approved
as a single course offering, a course approved by the commission may be offered
by the provider for a period of two years after the course is approved or
until the provider's authority to act as a provider finally expires or is
withdrawn for cause, whichever first occurs. If a course was originally approved
for another provider, the approval period is measured from the date of approval
for the original provider. A provider may apply for approval to be a provider
for another two years no sooner than six months prior to the expiration of
existing provider approval. An instructor's approval expires every five years
as provided by §535.64 of this title (relating to Accreditation of Schools
and Approval of Courses and Instructors.
(p)
Correspondence courses. The commission may approve a provider
to offer an MCE course by correspondence subject to the following conditions:
(1)
the course must be offered by a college or university accredited
by a regional accrediting association, such as the Commission on Colleges
of the Southern Association of Colleges and Schools, or its equivalent, which
offers correspondence courses, whether credit or noncredit, in other disciplines;
(2)
the content of the course must satisfy the requirements
of the Act, §7A, and these sections;
(3)
students receiving MCE credit for the course must
pass a proctored written examination administered under controlled conditions
to positively identified students, at a location and by an official approved
by the commission;
(4)
written course work required of students must be graded
by an approved instructor or the provider's coordinator or director, who is
available to answer students' questions or provide assistance as necessary,
using answer keys approved by the instructor or provider; and
(5)
final examinations must be graded by the instructor
or, if the examination is being graded mechanically or by use of a computer,
by the provider, using answer keys approved by the instructor or provider.
(q)
An applicant must submit an MCE Form 3A-1, MCE Course Application,
the first time approval is sought to offer a MCE correspondence course. Once
a course has been approved, no further approval is required for another approved
provider to offer the same course. Prior to advertising or offering the course,
however, the subsequent provider must complete MCE Form 3B-2, file the form
together with the appropriate fee with the commission and receive written
acknowledgment from the commission that all necessary documentation has been
filed. Each correspondence course must contain the following:
(1)
course description;
(2)
learning objectives;
(3)
evaluation techniques;
(4)
lessons;
(5)
learning activities;
(6)
final examination;
(7)
bibliography or source of updated subject matter;
and
(8)
instructor grading guidelines, including acceptable
answers for lessons, assessments and examinations.
(r)
The commission may accept courses offered by alternative
delivery methods subject to the following conditions.
(1)
Every course accepted under this subsection shall teach
to mastery. Teaching to mastery means that the course must, at a minimum:
(A)
divide the material into major units as approved by the
commission;
(B)
divide each of the major units of content into modules
of instruction for delivery on a computer or other approved interactive audio
or audiovisual programs;
(C)
specify the learning objectives for each module of instruction.
The learning objectives must be comprehensive enough to ensure that if all
the objectives are met, the entire content of the course will be mastered;
(D)
specify an objective, quantitative criterion for mastery
used for each learning objective;
(E)
implement a structured learning method by which each student
is able to attain each learning objective;
(F)
provide a means of diagnostic assessment of each student's
performance on an ongoing basis during each module of instruction, measuring
what each student has learned and not learned at regular intervals throughout
each module of instruction, and specifically assessing the mastery of each
concept covered in the content material;
(G)
provide a means of tailoring the instruction to the needs
of each student as identified in subparagraph (E) of this subsection. The
process of tailoring the instruction shall ensure that each student receives
adequate remediation for specific deficiencies identified by the diagnostic
assessment;
(H)
continue the appropriate remediation on an individualized
basis until the student demonstrates achievement of each mastery criterion;
and
(I)
require that the student demonstrate mastery of all material
covered by the learning objectives for the module before the module is completed.
(2)
The commission must approve the method by which
each of the above elements of mastery in subparagraphs (A)-(I) of this subsection
is accomplished.
(3)
The rationale for the education processes implemented
in the course must be based on sound instructional strategies which have been
systematically designed and proven effective through educational research
and development. The basis and rationale for any proposed instructional approach
must be specified in the application for approval. The following types of
programs will not be approved:
(A)
those which consist primarily of text material;
(B)
those which primarily consist of questions similar to those
on the state licensing examination; or
(C)
those which consist primarily of combinations of the elements
in subparagraphs (A) and (B) of this paragraph.
(4)
An approved instructor or the provider's coordinator/director
shall grade the written course work.
(5)
Every provider offering an approved course under this
subsection shall:
(A)
ensure that a qualified person is available to answer students'
questions or provide assistance as necessary;
(B)
satisfy the commission that procedures are in place to
ensure that the student who completes the work is the student who is enrolled
in the course; and
(C)
certify students as successfully completing the course
only if the student;
(i)
has completed all instructional modules required to demonstrate
mastery of the material;
(ii)
has attended any hours of live instruction and/or testing
required for a given course; and
(iii)
has passed either:
(I)
a proctored final examination administered under controlled
conditions to positively identified students, at a location and by an official
approved by the commission and graded by the instructor or, if the examination
is being graded mechanically or by use of a computer, by the provider, using
answer keys approved by the instructor or provider; or
(II)
an examination by use of a computer under conditions that
satisfy the commission that the examinee is the same person who seeks MCE
credit.
§535.72.Mandatory Continuing Education: Presentation of Courses, Advertising and Records.
(a)
Providers shall file course schedules with the commission.
(b)
Providers shall notify the commission of changes to their
course schedules
(c)
The provider offering each MCE course shall file an MCE
Course Completion Roster, MCE Form 8-3 with the commission within 10 days
following completion of the course. Course completion rosters may be transmitted
for filing by facsimile machine. An authorized representative of the provider
who was in attendance and for whom an authorized signature exemplar is on
file with the commission shall sign MCE Form 8-3. Providers are responsible
for the security of the course completion rosters. The commission may not
accept signature stamps, unsigned forms or forms signed by persons for whom
an authorized signature exemplar has not been previously filed with the commission.
Providers must make every reasonable effort to ensure that no student is certified
for MCE credit who has not attended all class sessions. While a provider is
expected to ensure that each student is present in the classroom for the hours
of time for which credit is awarded, this section is not intended to penalize
students who must leave the classroom for brief periods of time for personal
reasons such as taking medication or responding to the call of nature. Providers
shall make every reasonable effort to ensure that no student is given course
credit if the student persists in disrupting the orderly conduct of a class
after being cautioned by the provider or the instructor to cease disruptive
behavior. Providers may not use students for administration or monitoring
duties during the course if the use prevents the student's participation in
a significant portion of the course.
(d)
Providers of MCE correspondence or alternative delivery
method courses shall furnish each student with an Alternative Instructional
Methods Reporting Form, MCE Form 9-3, at the time of the final examination.
Upon successful completion of the examination the student shall sign MCE Form
9-3. To report successful course completion the provider shall file the completed
MCE Form 9-3 with the commission.
(e)
A provider shall, prior to commencement of a course, announce
that the provider will not certify a student for MCE credit unless the student
attends all sessions of the course, that partial credit will not be given
for partial attendance, that no makeups or written work will be allowed for
MCE credit, and that the student must determine if the course is timely and
appropriate for the student's MCE requirement. If the provider has not advertised
or otherwise made students aware of the provider's refund policy, the pre-course
announcement must also contain the refund policy. The provider may allow a
ten-minute break for every 50 minutes of session time, but a break must be
given at least every two hours, using all accumulated break time.
(f)
Facilities used by providers for classroom presentations
must be adequate to accommodate students. Providers shall ensure each student
has seating, a writing surface and writing materials. Rigid tablets or clipboards
may be provided as a writing surface.
(g)
All MCE courses must be open to enrollment by the general
public. Providers may give preference in enrollment to persons who need MCE
credit to obtain, renew or activate a license and may enroll all others on
a space available basis. For a classroom course, the provider must offer the
course in a location conducive to instruction that is separate and apart from
the work area, such as a classroom, training room, conference room, or assembly
hall.
(h)
Advertising of MCE shall be subject to the following conditions.
(1)
A provider applicant may not advertise a specific MCE course
or represent in advertising that the applicant is a provider until the applicant
has received written approval from the commission for the providership and
at least one course. A provider applicant may advertise an intention to offer
MCE courses if no specific course is described and the advertisement clearly
indicates the applicant has not been approved as a provider.
(2)
A provider may not advertise that a course has been
approved or offer a course until the provider has received written approval
of the course.
(3)
Any advertisement or promotional material used by
a provider must indicate the MCE provider's name or assumed business name
as reflected in the commission's records and the MCE provider number assigned
by the commission. The advertisement or promotional material also must include
either the specific MCE course numbers and course titles or a statement that
MCE course numbers and titles are available from the provider. When a provider
offers a course that is hosted by another person or organization, the advertisement
or promotional material must show clearly that the approved MCE provider is
offering the course.
(4)
A provider may not publish advertisements which are
misleading or which are likely to deceive the public.
(5)
Any name a provider uses in advertising must not be
deceptively similar to the name of any other approved MCE provider or school
accredited by the commission or falsely imply a governmental relationship.
(6)
Any written advertisement which contains a fee charged
by the provider shall display all fees for the course in the same place in
the advertisement and with the same degree of prominence. If a provider requires
students to purchase course materials which are not included in the tuition,
any such fees must appear in the advertisement of the course.
(i)
Providers shall retain student attendance records for a
period of three years following the completion of a course and shall make
copies of the records available to former students. A provider may charge
a reasonable fee to defray the cost of copying student records. A provider's
records must be kept at the location designated in the MCE Provider Application.
Providers must obtain prior approval from the commission to change the location
at which the provider's records are kept.
(j)
Providers of MCE courses are responsible to the commission
for the conduct and administration of each course presentation, the punctuality
of classroom sessions, verification of student attendance, and instructor
performance. Providers shall ensure that the courses are administered in substantially
the same manner as represented in the application for approval of the course.
Instructors must teach a course in substantially the same manner represented
to the commission in the instructor's manual filed with the application for
course approval. During the presentation of a course, providers may not promote
the sale of goods or services by the provider or by a vendor affiliated or
associated with the provider.
(k)
A provider shall update course materials during the period
of time an MCE course may be given to ensure that current and accurate information
is provided to students. Updates shall be considered changes to course content
which do not alter the accuracy of the course outline. Revisions of the course
outline must be filed with the commission prior to implementation, and the
commission may direct a provider to revise the materials further or cease
use of materials.
(l)
In the event of a change of ownership, the provider must
obtain approval from the commission prior to the change, and proposed new
owners shall submit an MCE Form 2-2, Principal Information Form. Providers
shall report a change in business name, street or mailing address, person
responsible for records or day-to-day operations, or persons authorized to
sign MCE forms at least 15 days prior to the desired date of change. Providers
shall report any change in refund policy, attorney-in-fact, address of attorney-in-fact
or business telephone number as the change occurs.
(m)
Providers may request MCE credit be given to instructors
of MCE courses subject to the following guidelines.
(1)
The instructors may receive credit for only those portions
of the course which they teach by filing a completed MCE Form 11-3, Instructor
Credit Request.
(2)
The instructors may receive full course credit by
attending all of the remainder of the course and signing the course completion
roster.
(n)
Each provider shall establish written policies governing
refunds and contingency plans in the event of course cancellation. If the
provider cancels a course, the provider shall fully refund all fees collected
from students, or at the student's option, the provider may credit the student
for another course of equal or greater credit hours.
(o)
If the commission determines that it is in the public interest
to cause significant information about changes in the law of agency or other
topics to be included in an MCE course previously approved by the commission,
the commission may require the provider to furnish each student with a copy
of the information. The commission also may require the provider to ensure
that the provider's instructors include the material in the presentation of
the course. The commission shall furnish the provider with a copy of the information
and notify the provider in writing that the commission requires compliance
with this subsection in any course offered after the provider's receipt of
the notice. Failure to comply with this subsection constitutes grounds for
disciplinary action against the provider under §535.73 of this title
(relating to Compliance and Enforcement) or for disapproval of an application
for approval as a provider under §535.71 of this title (relating to
Mandatory Continuing Education: Approval of Providers, Courses and Instructors).
§535.73.Compliance and Enforcement.
(a)
The commission shall investigate complaints against MCE
providers or instructors which allege acts constituting violations of these
sections. Complaints must be in writing and the commission shall not initiate
an investigation or take action against a provider or instructor based on
an anonymous complaint. Commission employees may file written complaints against
providers or instructors if documents filed with the commission provide reasonable
cause to believe a violation of these sections has occurred.
(b)
Complaints received by the MCE section of the education
division of the commission or by any other division of the commission shall
be referred to the enforcement division for appropriate resolution. The provider
or instructor named in the complaint shall be provided with a copy of the
complaint. Proceedings involving MCE providers or instructors shall be conducted
in accordance with the Administrative Procedure and Texas Register Act, Article
6252-13a, Texas Civil Statutes and the commission's general rules of practice
and procedure. Venue for any hearing conducted under this section shall be
in Travis County.
(c)
Audits and evaluations. Commission employees may conduct
on-site audits of any course offered by an approved MCE provider. Audits shall
be conducted without prior notice to the MCE provider and commission employees
may enroll and attend an MCE course without identifying themselves as employees
of the commission. Commission employees also may evaluate the effectiveness
of course materials or instructors through surveys of students. An audit report
indicating noncompliance with these sections will be treated as a written
complaint against the provider or instructor concerned and will be referred
to the enforcement division for appropriate resolution.
(d)
A provider or instructor shall fully assist any employee
of the commission engaged in the performance of an audit or investigation
of a complaint and shall provide records in his possession for examination
by the commission or provide such information as is requested by the commission
within 15 days of receiving a request for examination of records or information.
(e)
The commission may reprimand, suspend or revoke the authority
of a provider to offer MCE courses or suspend or revoke the approval of an
instructor to teach MCE courses when it has been determined that the provider
or instructor has been guilty of:
(1)
procuring or attempting to procure approval for a provider,
course or instructor by fraud, misrepresentation or deceit, or by making a
material misrepresentation of fact in an application filed with the commission;
(2)
making a false representation to the commission, either
intentionally or negligently, that a person had attended a course or portion
of a course for which MCE credit was awarded, that a person had completed
an examination, or that the person had completed any other requirement for
an MCE course;
(3)
aiding or abetting a person to circumvent the requirements
for attendance established by these sections, the completion of any examination
or any other requirement for completion of an MCE course;
(4)
failing to provide within 15 days information requested
by the commission as a result of a complaint which would indicate a violation
of these sections;
(5)
disregarding or violating a provision of these sections
or the Act; or
(6)
making a materially false statement to the commission
in response to a request from the commission for information relating to a
complaint against the provider or instructor.
(f)
An order of suspension or revocation issued under this
section may be probated upon reasonable terms and conditions as determined
by the commission.
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 March 31, 2000.
TRD-200002304
Mark A. Moseley
General Counsel
Texas Real Estate Commission
Effective date: June 1, 2000
Proposal publication date: February 25, 2000
For further information, please call: (512) 465-3900
22 TAC §535.222
The Texas Real Estate Commission (TREC) adopts the repeal
of §535.222, concerning standards of practice for licensed inspectors,
without changes to the proposed text as published in the December 31, 1999,
issue of the
Texas Register
(25 TexReg 11870).
The section has been replaced by new sections dividing the standards of
practice into five parts. Adoption of the repeal was necessary to replace
the current inspection standards of practice with revised standards which
are easier to read and to use.
No comments were received regarding the proposal.
The repeal is adopted under Texas Civil Statutes, Article 6573a, §5(h),
which authorizes 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 April 3, 2000.
TRD-200002378
Mark A. Moseley
General Counsel
Texas Real Estate Commission
Effective date: September 1, 2000
Proposal publication date: December 31, 1999
For further information, please call: (512) 465-3910
22 TAC §§535.227 - 535.231
The Texas Real Estate Commission (TREC) adopts new §§535.227
- 535.231, concerning standards of practice, with changes to the proposed
text as published in the December 31, 1999, issue of the
Texas Register
(24 TexReg 11871) .
The new sections are adopted in connection with the repeal of §535.222
of this title (relating to Standards of Practice) . These actions divide the
current standards of practice for inspectors into five sections to make the
standards easier to read and to cite. Generally, the new sections track the
content of the current standards of practice, listing the systems, components
and items in a home the inspector must include in an inspection unless the
inspector's client agrees to limit the scope of the inspection. The new sections
continue to establish the minimum standards for an inspection performed by
a licensed inspector. The new sections also contain a number of substantive
changes recommended by the Texas Real Estate Inspector Committee, an advisory
committee of nine professional inspectors appointed by TREC.
New §535.227 addresses general provisions: definitions, the scope
of an inspection, departure provisions, under which an inspector may exclude
an item from the inspection, and enforcement. New §535.228 addresses
inspection guidelines for structural system, including the foundation, walls
and doors, windows, fireplace and chimney, roof, porches and decks. New §535.229
addresses inspection guidelines for mechanical systems: appliances, cooling
systems, heating systems, ducts, vents and flues, and plumbing systems. New §535.230
addresses inspection guidelines for electrical systems. New §535.231
addresses optional systems, such as swimming pools or septic systems, which
an inspector may agree to inspect.
The Texas Association of Realtors (TAR) generally supported adoption of
the new sections but suggested extensive changes to the proposed text. The
Texas Real Estate Inspector Committee reviewed the suggestions at public meetings
on January 14, 2000, and March 10, 2000, and recommended their inclusion in
the final version of the new sections. The commission concurred with the committee's
recommendations and modified the final text to reflect the following changes.
Where possible, definitions were deleted if the ordinary definition of the
term is sufficiently clear. The sections were broken into smaller subdivisions
to make them easier to read and to cite. In most instances, references to
"hazards" were deleted as unnecessary, since most of the conditions an inspector
is required to report relate to the health or safety of the occupants of the
home. More precise was used to indicate which items must be inspected and
which conditions or deficiencies must be reported or reported as in need of
repair by the inspector, rather than implying the need to report the condition
or item as in need of repair if the inspector is required to inspect for the
presence, or absence, of an item or condition. In most cases, the inspector
would be required to report the item or condition under the general scope
provision of §535.227; the final version of the text of the new sections
merely clarifies for each item or condition whether it is to be reported or
reported as in need of repair so as to avoid any confusion on the point.
The Texas Real Estate Inspector Committee also recommended changes based
on public comments and discussion at its meetings. The commission concurred
and made the following changes. More specific language was added to §535.228
to describe the structural components of guardrails. A requirement for reporting
the absence of a range exhaust vent in §535.229 was broadened to include
electric ranges, since a range exhaust vent serves a fire protection function
for electric ranges as well as gas ranges. A specific limitation was added
to §535.230 to clarify that the inspector is not responsible for determining
whether circuit breakers are accurately labeled in a service panel. Language
was added to the same section to require the inspector to use a separate testing
device (other than the built-in GFCI test button) to determine if the GFCI
protection device operates properly. A provision relating to parallel wiring
in §535.230 was deleted as unnecessary. Inspections of outbuildings under §535.231
will be subject to the same standards governing inspection of the principal
structure with regard to electrical, plumbing, heating, ventilation or air-conditioning
systems. A provision was deleted in §535.231 which appeared to require
an inspector to perform a coliform analysis of the well water, when the inspector
might not be authorized to do so. A provision was added to §535.231 to
require the inspector to report the proximity of septic systems when inspecting
a private water well, to be consistent with the requirements when inspecting
the septic system. Inspections of swimming pool heaters must be conducted
under the same standards as apply generally to a heating system, and a subsection
relating to built-in security and fire protection equipment was deleted as
in possible conflict with standards governing persons holding another state
license to perform such inspections.
The Texas Association of Real Estate Inspectors commented generally in
support of the new sections with the changes recommended by the Texas Real
Estate Inspector Committee.
A number of comments were made by individual inspectors in opposition to
the proposed new sections. One inspector questioned whether the amount of
time required for an inspector to complete a report under the new standards
would create economic pressure on consumers, assuming any increase in the
cost of business by an inspector would be passed on to the consumer. Based
on the recommendation of the Texas Real Estate Inspector Committee, the commission
determined that the changes in the standards primarily confirmed what should
have been included in the inspector's report under the existing standards
and declined to reduce the information to be provided to the consumer. Several
inspectors questioned whether the standards should refer to any specific building
code and whether the standards were becoming overly concerned with enforcement
of building codes. Based on the recommendation of the Texas Real Estate Inspector
Committee, the commission determined that the single reference to ground fault
circuit interruptor devices in a specific electric code was necessary in the
interest of consumer safety and that reliance upon building codes as a basis
for reporting items in need of repair was appropriate to provide a consistent
means of determining when repairs were needed. A number of inspectors suggested
replacing terms used in the standards with their more commonly used counterparts,
such as replacing "garbage disposer" with "garbage disposal" or replacing
"garage door operator" with "garage door opener." Based on the recommendation
of the Texas Real Estate Inspector Committee, the commission determined that
the language used in the standards was technically correct and declined to
make the requested changes.
The new sections 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.
§535.227.Standards of Practice: General Provisions.
(a)
Definition of terms. The following words have the following
meanings, unless the context clearly indicates otherwise.
(1)
Act - The Real Estate License Act, Article 6573a, Texas
Civil Statutes.
(2)
Functioning - Performing in an expected or required
manner; carrying out the design purpose or intended operation of a part, system,
component, member.
(3)
Inaccessible - Not having access without the use of
special tools, equipment, or instruments, or removing doors, walls, stored
items or similar obstructions, or by causing damage to a structure, finish
or component, equipment or system, or by virtue of inadequate clearance, walkways,
passageways, or hazardous condition.
(4)
In Need of Repair - Does not adequately function or
perform.
(5)
Inspect - To look at and examine accessible items,
parts, systems or components without, except as required by the rules of the
Texas Real Estate Commission, laboratory, scientific or engineering evaluation
or testing, destructive tests or the dismantling or removal of parts, members
or components.
(6)
Inspector - A person licensed as a professional inspector,
a person licensed as an apprentice inspector or a person licensed as a real
estate inspector.
(7)
Performance - The act of carrying out, completing,
executing or achievement of an operation, design or function in a manner consistent
with the intent of the manufacturer, designer or accepted industry practice.
(8)
Report - A written or oral communication of the inspector's
opinions, observations, determinations, and findings in an inspection.
(9)
Standards of Practice - §535.227 of this title
(relating to Standards of Practice: General Provisions) , §535.228 of
this title (relating to Standards of Practice: Inspection Guidelines for Structural
Systems, §535.229 of this title (relating to Standards of Practice: Inspection
Guidelines for Mechanical Systems: Appliances, Cooling Systems, Heating Systems,
Ducts, Vents and Flues, and Plumbing Systems) , §535.230 of this title
(relating to Standards of Practice: Inspection Guidelines for Electrical Systems)
and §535.231 of this title (relating to Standards of Practice: Optional
Systems) .
(b)
Scope.
(1)
The standards of practice are the minimum levels of inspection
practice required of inspectors for the accessible parts, components, and
systems typically found in improvements to real property, excluding detached
structures, decks, docks and fences. The inspector may provide a higher level
of inspection performance than required by the standards of practice and may
inspect parts, components, and systems in addition to those described by the
standards of practice.
(2)
The inspector shall:
(A)
inspect items, parts, systems, components and conditions
which are present and visible at the time of the inspection, but the inspector
is not required to determine or estimate the remaining life expectancy or
future performance of any inspected item, part, system or component;
(B)
operate mechanical and electrical equipment, systems, and
appliances during an inspection in normal modes and operating range at the
time of the inspection;
(C)
report which of the parts, components, and systems present
in the property have or have not been inspected;
(D)
report as in need of repair inspected parts, components
or systems that are not functioning or that the standards of practice require
the inspector to report as in need of repair;
(E)
address all of the parts, components, and systems contained
in the standards of practice in the property being inspected.
(F)
complete the standard inspection report form under §535.223
of this title (relating to Standard Inspection Reports) if that section applies;
(G)
identify in any written report the inspector who performed
the inspection by name and license number;
(H)
comply with any other law or license requirement necessary
to perform inspections or services other than what is required by the standards
of practice, such as an air-conditioning and refrigeration contractor license
which may be required for the inspector to make a direct in-line connection
to a refrigerant system, or a structural pest control license which may be
required to perform a wood-destroying-insect inspection;
(3)
In the event of a conflict between a specific
provision and a general provision in the standards of practice, the specific
provision controls. The standards of practice do not apply to the following:
(A)
parts, components or systems other than those specifically
described;
(B)
conditions other than those specifically described, such
as environmental conditions, presence of toxic or hazardous wastes or substances,
presence of termites or other wood-destroying insects or organisms, compliance
with codes, ordinances, statutes or restrictions or the efficiency, quality,
durability of any item inspected;
(C)
any part, component or system the inspector excludes under
the departure provision in this section; and
(D)
any determination of insurability or warrantability of
any part, component or system.
(c)
Departure Provision.
(1)
An inspector shall exclude from the inspection any part,
component or system which the inspector is not competent or qualified to inspect.
(2)
An inspector may exclude any part, component or system
required for inspection by the standards of practice which is inaccessible,
cannot be inspected due to circumstances beyond the control of the inspector,
or the inspector's client has agreed is not to be inspected.
(3)
This departure provision does not prohibit an inspector
from specializing nor require the inspector to specifically exclude other
parts, components or systems not ordinarily considered a part of the inspector's
specialty. However, the inspector shall comply with the standards of practice
for the items being inspected.
(4)
If an inspector excludes any part, component or system
listed in the standards of practice, other than one which the client has agreed
is not to be inspected, the inspector shall:
(A)
advise the client at the earliest practicable time that
the specific part, component or system will not be included in the inspection;
and
(B)
state in any written inspection report that the excluded
part, component or system was not inspected.
(d)
Enforcement. Failure to comply with §535.227 of this
title (relating to Standards of Practice: General Provisions) , §535.228
of this title (relating to Standards of Practice: Inspection Guidelines for
Structural Systems, §535.229 of this title (relating to Standards of
Practice: Inspection Guidelines for Mechanical Systems: Appliances, Cooling
Systems, Heating Systems, Ducts, Vents and Flues, and Plumbing Systems) , §535.230
of this title (relating to Standards of Practice: Inspection Guidelines for
Electrical Systems) and §535.231 of this title (relating to Standards
of Practice: Optional Systems) is a ground for disciplinary action as prescribed
by the Act, §23(1)(7) and §535.224 of this title (relating to Proceedings
before the Committee) .
§535.228.Standards of Practice: Inspection Guidelines for Structural Systems.
(a)
Foundations. The inspector shall:
(1)
report the type of foundation (for example, slab-on-grade
or pier and beam) ;
(2)
inspect the foundation, related structural components
and/or slab surfaces;
(3)
inspect the crawl space area to determine the general
condition of foundation components and report the method used to observe the
crawl space if the inspector did not enter the crawl space because the space
was inaccessible, hazardous conditions were present, or access or visibility
was limited;
(4)
render a written opinion as to the performance of
the foundation;
(5)
report general indications of foundation movement
that are present and visible, such as sheetrock cracks, brick cracks, out-of-square
door frames or floor slopes;
(6)
report as in need of repair any post tensioned cable
ends that are not protected;
(7)
report as in need of repair a crawl space that does
not appear to be adequately ventilated;
(8)
report as in need of repair conditions or symptoms
that may indicate the possibility of water penetration that are present and
visible, such as improper grading around foundation walls or plumbing leaks;
and
(9)
report as in need of repair conditions that are present
and visible and may be adversely affecting foundation performance, such as
erosion or water ponding.
(b)
Specific limitations for foundations. The inspector is
not required to enter a crawl space or any areas where headroom is less than
18 inches and the width of the access opening is less than two feet, or where
the inspector reasonably determines conditions or materials are hazardous
to health or safety of the inspector.
(c)
Interior walls, doors, ceilings and floors. The inspector
shall:
(1)
report as in need of repair deficiencies of the surfaces
of walls, ceilings and floors as related to structural performance or water
penetration that are present and visible;
(2)
report as in need of repair accessible doors that
do not operate properly, excluding locks and latches;
(3)
report as in need of repair deficiencies in steps,
stairways, balconies and railings,
(4)
report as in need of repair spacings between intermediate
balusters, spindles, or rails for steps, stairways, balconies, and railings
that permit passage of an object greater than four inches in diameter; and
(5)
report as in need of repair the absence of safety
glass in hazardous locations.
(d)
Specific limitations for Interior walls, doors, ceilings
and floors. The inspector is not required to do the following:
(1)
determine the condition of floor, wall or ceiling coverings
unless such conditions affect structural performance or indicate water penetration;
(2)
report obvious damage to floor, wall or ceiling coverings;
(3)
determine the condition of paints, stains and other
surface coatings; or
(4)
determine condition of cabinets.
(e)
Exterior walls and doors, windows and door glazing. The
inspector shall:
(1)
report as in need of repair present and visible deficiencies
of exterior walls that are related to structural performance and water penetration;
(2)
report as in need of repair deficiencies in the condition
and operation of exterior doors and garage doors, including door locks and
latches when present.
(3)
report as in need of repair damaged glazing in windows
and exterior doors;
(4)
report as in need of repair any insulated windows
that are obviously fogged or display other evidence of broken seals;
(5)
report as in need of repair the absence of safety
glass in hazardous locations;
(6)
report as in need of repair missing or damaged window
and door screens;
(7)
report as in need of repair in homes having burglar
bars the absence of functional keyless burglar bars in appropriate locations;
(8)
report as in need of repair inoperable windows at
burglar bar locations of sleeping rooms or egress areas and any inoperable
windows at other randomly sampled accessible burglar bar locations; and
(9)
report as in need of repair spacings between intermediate
balusters, spindles and rails that permit passage of an object greater than
four inches in diameter.
(f)
Specific limitations for exterior walls and doors, windows
and door glazing. The inspector is not required to do the following:
(1)
report the condition or presence of storm windows or doors,
awnings, shutters or security devices or systems;
(2)
determine the condition of paints stains or other
surface coatings; or
(3)
determine the presence of, or extent or type of, insulation
or vapor barriers in exterior walls.
(g)
Fireplace and chimney. The inspector shall:
(1)
report as in need of repair deficiencies in the visible
components and structure of the chimney and fireplace;
(2)
inspect the interior of the firebox and the visible
flue area, and report as in need of repair built up creosote in visible areas
of the firebox and flue (the inspector is not required to determine the adequacy
of the draft or perform a chimney smoke test) ;
(3)
report as in need of repair a damper that does not
operate;
(4)
report as in need of repair the presence of non-combustible
hearth extension;
(5)
report as in need of repair deficiencies in the lintel,
hearth and material surrounding the fireplace, including clearances from combustible
materials;
(6)
report as in need of repair the absence of firestopping
at the attic penetration of the chimney flue, where accessible;
(7)
report as in need of repair any gas log lighter valves
that do not function or leak gas;
(8)
report as in need of repair any circulating fan that
does not operate, if present;
(9)
report as in need of repair deficiencies in combustion
air vent, if present; and
(10)
report as in need of repair deficiencies in chimney
coping or crown, caps or spark arrestor (inspected from ground level at a
minimum) .
(h)
Roof, roof structure and attic. The inspector shall:
(1)
report the type of roof covering and report as in need
of repair:
(A)
a roof covering that is not appropriate for the slope of
the roof;
(B)
fasteners that are not present or that are not appropriate,
(where it can be reasonably determined) ; and
(C)
roof jacks, flashing and counter flashing that are not
present or not properly installed.
(2)
inspect the general condition of, and report
evidence of previous repairs to, flashing, skylights and other roof penetrations;
(3)
report as in need of repair inadequate attic space
ventilation;
(4)
report as in need of repair deficiencies in the roof
covering, structure and sheathing;
(5)
report any visible evidence of moisture penetration;
(6)
report as in need of repair the lack of or inappropriate
installation of components such as purlins, struts, collar ties or rafter
ties, where necessary;
(7)
report as in need of repair excessive deflections
or depressions in the roof's surface relating to the performance of the framing
and the roof deck;
(8)
enter and inspect attic space(s) except when inadequate
access or hazardous conditions exist as reasonably determined by the inspector
and report the method used to inspect the attic if the inspector did not enter
the attic;
(9)
report the method used to inspect the roof if the
inspection is performed from other than roof level;
(10)
inspect for the presence, and report the approximate
depth of, insulation where visible; and
(11)
report as in need of repair deficiencies in visible
installed gutter and downspout systems.
(i)
Specific limitations for roof, roof structure and attic.
The inspector is not required to do the following:
(1)
determine the remaining life expectancy of the roof covering;
or
(2)
inspect the roof from the roof level if the inspector
reasonably determines that the inspector cannot safely reach or stay on the
roof, or that damage to the roof or roof covering may result from walking
on the roof.
(j)
Porches and decks. The inspector shall:
(1)
report as in need of repair structural deficiencies in
porches, decks, steps, balconies and carports as to visible footings, joists,
deckings, railings and attachment points, where applicable; and
(2)
report as in need of repair (except for decks which
are not higher than 30 inches as measured from the adjacent grade) spacings
between intermediate balusters, spindles or rails that permit passage of an
object greater than four inches in diameter.
(k)
Specific limitations for porches and decks. The inspector
is not required to inspect detached structures or waterfront structures and
equipment, such as docks or piers.
§535.229.Standards of Practice: Inspection Guidelines for Mechanical Systems: Appliances, Cooling Systems, Heating Systems, Ducts, Vents and Flues, and Plumbing Systems.
(a)
Dishwasher. The inspector shall:
(1)
report as in need of repair any deficiencies in the door
gasket, control knobs and interior parts, including the dish tray, rollers,
spray arms and the soap dispenser;
(2)
report as in need of repair any interior signs of
rust;
(3)
report as in need of repair a door spring that does
not operate properly;
(4)
report as in need of repair deficiencies in the discharge
hose or piping or the lack of back flow prevention;
(5)
report as in need of repair units that are not securely
mounted;
(6)
report as in need of repair any water leaks;
(7)
inspect the unit's operation in normal mode with the
soap dispenser closed; and
(8)
report as in need of repair spray arms that do not
turn, soap dispensers that do not open or drying elements that do not operate.
(b)
Food waste disposer. The inspector shall:
(1)
report as in need of repair any deficiencies in the splash
guard, grinding components, wiring and exterior;
(2)
report as in need of repair a unit that is not securely
mounted; and
(3)
inspect the operation of the unit and report as in
need of repair any unusual noise or vibration level and any signs of water
leaks.
(c)
Range exhaust vent. The inspector shall:
(1)
report as in need of repair any deficiencies in the filter,
vent pipe, light and switches;
(2)
inspect the operation of the blower and report as
in need of repair any unusual sounds or vibration levels, or if the blower
does not operate at all speeds;
(3)
report as in need of repair a vent pipe that does
not terminate outside the structure when the unit is not of recirculating
type or configuration.
(4)
report as in need of repair a vent pipe that is of
inadequate material; and
(5)
report as in need of repair the absence of a range
exhaust vent.
(d)
Electric or gas ranges. The inspector shall:
(1)
report as in need of repair broken or missing knobs, elements,
drip pans or other parts, inadequate clearance from combustible material,
or the absence of an anti-tip device;
(2)
report as in need of repair signal lights and elements
or burners that do not operate at low and high settings;
(3)
report as in need of repair improper materials that
are used for the gas branch line and the connection to the appliance; and
(4)
report as in need of repair the absence of a gas shut-off
valve, or valve that is not properly located, is inaccessible, or leaks.
(e)
Electric or gas ovens. The inspector shall:
(1)
report as in need of repair any broken or missing knobs,
handles, glass panels, door hinges, lights or light covers or other parts,
or inadequate clearance from combustible material;
(2)
report as in need of repair deficiencies in the door
gasket, tightness of closure and operation of the latch;
(3)
report as in need of repair an oven that is not securely
mounted;
(4)
report as in need of repair heating elements and thermostat
sensing elements that are not properly supported;
(5)
report as in need of repair deficiencies in the operation
of the heating elements or the lighting, operation and condition of the flame;
(6)
report as in need of repair deficiencies in the operation
of the clock and timer, thermostat and door springs; and
(7)
report as in need of repair any inaccuracy of the
thermostat more than a 25 degree range plus or minus of a 350 degree setting,
as measured by a thermometer.
(f)
Microwave oven. The inspector shall:
(1)
report as in need of repair any broken or missing knobs,
handles, glass panels, or other parts, or a unit that is not securely mounted;
(2)
report as in need of repair any deficiencies in the
door and seal (the inspector is not required to test for radiation) ;
(3)
report as in need of repair an oven that does not
operate by heating a container of water or with other test equipment, as reasonably
determined by the inspector; and
(4)
report as in need of repair a light that does not
operate.
(g)
Trash compactor. The inspector shall:
(1)
inspect the overall condition of the unit;
(2)
report as in need of repair a unit that does not operate
or operates with unusual noise or vibration levels; and
(3)
report as in need of repair a unit that is not securely
mounted in place.
(h)
Other built-in appliances. The inspector shall report as
in need of repair any deficiencies in condition or operation of other built-in
appliances not listed in this section.
(i)
Bathroom exhaust vents and electric heaters. The inspector
shall operate the unit, and report as in need of repair unusual sounds, speed
and vibration levels or, when possible, vent pipes that do not terminate outside
the structure.
(j)
Whole house vacuum system. The inspector shall:
(1)
inspect the condition of the main unit;
(2)
report as in need of repair a unit that does not operate;
and
(3)
inspect the system from all accessible outlets throughout
the house.
(k)
Water heaters. The inspector shall:
(1)
report the energy source;
(2)
inspect the unit and report as in need of repair fittings
that leak or are corroded;
(3)
report as in need of repair temperature and pressure
relief valve piping that lacks gravity drainage, is improperly sized (no smaller
than the outlet fittings) , has deficiencies in material, or lacks a correct
termination;
(4)
report as in need of repair a temperature and pressure
relief valve that does not operate when the valve is of an operable type and
operation will not cause damage to persons or property as reasonably determined
by the inspector (for example, it would be reasonable not to operate the valve
if there is improper or undetermined termination of the drain pipe, a corroded
or damaged valve, improper installation of valve or drain pipe, the drain
pipe is of inappropriate material or there is no water supply cut-off valve
at the unit) ;
(5)
report as in need of repair any broken or missing
parts, covers or controls;
(6)
report as in need of repair deficiencies in the burner,
flame and burner compartment, the operation of heating elements and the condition
of wiring;
(7)
report as in need of repair deficiencies in materials
used for the gas branch line and the connection to the appliance, the absence
of a gas shut-off valve, or a valve that is not properly located, is inaccessible,
or leaks;
(8)
if applicable, report as in need of repair deficiencies
in the vent pipe, draft diverter, draft hood and their condition, draft, proximity
to combustibles and vent termination point, observing for adequate combustion
and draft air;
(9)
report as in need of repair the lack of a safety pan
and drain (including the termination of the drain line) when applicable;
(10)
report as in need of repair an unsafe location or
installation; and
(11)
inspect garage units or units which are located in
rooms or enclosures opening into a garage and report as in need of repair
the following:
(A)
a lack of protection for physical damage to the unit; and
(B)
burners, burner ignition devices or heating elements, switches
or thermostats that are not a minimum of 18 inches above the lowest garage
floor elevation.
(l)
Doorbell and chimes. The inspector shall:
(1)
inspect the condition of the unit and report as in need
of repair a unit that does not operate; and
(2)
report as in need of repair any deficiencies in visible
and accessible parts.
(m)
Attic power vents. The inspector shall:
(1)
report as in need of repair deficiencies in the operation
and installation of the unit, including the wiring and mounting of the thermostat
control, if so equipped and accessible; and
(2)
report as in need of repair unusual sounds or speed
and vibration levels.
(n)
Garage door operator. The inspector shall:
(1)
report as in need of repair deficiencies in the installation,
condition and operation of the garage door operator;
(2)
operate the door both manually and by an installed
automatic door control;
(3)
report as in need of repair a door that does not automatically
reverse during closing cycle, any installed electronic sensors that are not
operable or not installed at the proper heights above the garage floor ; and
(4)
report as in need of repair door locks or side ropes
that have not been removed or disabled.
(o)
Hydrotherapy or whirlpool equipment. The inspector shall:
(1)
report as in need of repair a unit that does not operate,
leaks, or is inaccessible;
(2)
report as in need of repair a unit that lacks a ground
fault circuit interrupter or has an interrupter that does not operate;
(3)
report as in need of repair switches that are not
in a safe location or do not operate;
(4)
report evidence of leaks under the tub if the access
cover is available and accessible, reporting when the cover is absent or inaccessible
(the inspector is not required to determine the adequacy of self-draining
features of the circulation system) ; and
(5)
report as in need of repair deficiencies in the ports,
valves, grates and covers.
(p)
Specific limitations for appliances. The inspector is not
required to do the following:
(1)
operate or determine the condition of other auxiliary components
of inspected items; or
(2)
inspect self-cleaning functions.
(q)
Cooling systems other than evaporative coolers. The inspector
shall:
(1)
report the type of system and energy sources;
(2)
operate the system using normal control devices except
when the outdoor temperature is less than 60 degrees Fahrenheit;
(3)
inspect for proper performance; such as by observing
the temperature difference between the supply air and the return air or noticeable
vibration of the blower fan and report as in need of repair any deficiencies;
(4)
report as in need of repair the lack of, or deficiencies
in drainage of, condensate drain line and secondary drain line when applicable,
including pipes made of inadequate material;
(5)
report as in need of repair a primary drain pipe that
terminates in a sewer vent, if the termination is visible;
(6)
report as in need of repair a safety pan that is not
appropriately sized for the evaporator coil or free of water or debris;
(7)
report as in need of repair a return chase and plenum
that are not free of improper and hazardous conditions, such as gas pipes,
sewer vents, refrigerant piping or electrical wiring.
(8)
report as in need of repair the lack of insulation
on refrigerant pipes and the primary condensate drain pipe;
(9)
report as in need of repair a condensing unit that
does not have adequate clearances, or air circulation, or that has deficiencies
in the condition of fins, location, levelness and elevation above ground surfaces;
and
(10)
report as in need of repair conductor sizing and
over-current protective devices that are not appropriately sized for the unit.
(r)
Evaporative coolers. The inspector shall:
(1)
operate the motor and report as one or two speed;
(2)
observe the electrical pigtail connection at the motor
(3)
inspect the power source in the unit;
(4)
report as in need of repair a pump that does not function
or deficiencies in the spider tubes, tube clips and bleeder system;
(5)
report as in need of repair deficiencies in the water
supply line and float bracket;
(6)
report as in need of repair the absence of a minimum
one-inch air gap between water discharge at float and water level;
(7)
report as in need of repair deficiencies in the fan
(blower) and squirrel cage or rust build-up, deterioration or corrosion;
(8)
report as in need of repair deficiencies in the fan
belt and pulleys;
(9)
report as in need of repair deficiencies in the housing
side panels, the water trays, the exterior housing and the roof frame;
(10)
report as in need of repair deficiencies in the roof
jack or other mounting point and the location of the seasonal damper at the
unit; and
(11)
report as in need of repair deficiencies in the interior
registers and the supply duct.
(s)
Specific limitations for cooling systems. The inspector
is not required to do the following:
(1)
inspect for the pressure of the system coolant or determine
the presence of leaks;
(2)
program digital-type thermostats or controls; or
(3)
operate setback features on thermostats or controls.
(t)
Heating systems. The inspector shall:
(1)
report the type of heating system and its energy sources;
(2)
report as in need of repair a system that does not
operate properly using normal control devices;
(3)
report as in need of repair deficiencies in the controls
and accessible operating components of the system;
(4)
in gas units, inspect the burner, and report as in
need of repair deficiencies in the burner compartment, type, condition, draft
and termination of the vent pipe, or proximity to combustibles; the lack of
combustion and draft air or inappropriate location, or the lack of forced
air in the burner compartment (full evaluation of the integrity of a heat
exchanger requires dismantling of the furnace and is beyond the scope of a
visual inspection) ;
(5)
report as in need of repair gas units that display
flame impingement, uplifting flame, improper flame color or excessive scale
buildup;
(6)
report as in need of repair gas units that use improper
materials for the gas branch line and the connection to the appliance;
(7)
report as in need of repair in gas units deficiencies
in materials used for the gas branch line and the connection to the appliance,
the absence of a gas shut-off valve, or a valve that is not properly located,
is inaccessible, or leaks; and
(8)
report as in need of repair elements in electric furnaces
that do not operate;
(9)
report as in need of repair a return chase or plenum
that are not free of improper and hazardous conditions, such as gas pipes,
sewer vents, refrigerant piping or electrical wiring; and
(10)
report if the inspector deemed the furnace to be
inaccessible.
(u)
Specific limitations for heating systems. The inspector
is not required to do the following:
(1)
inspect accessories such as humidifiers, air purifiers,
motorized dampers, heat reclaimers, electronic air filters or wood-burning
stoves;
(2)
determine the efficiency or adequacy of a system;
(3)
program digital-type thermostats or controls; or
(4)
operate radiant heaters, steam heat systems or unvented
gas-fired heating appliances.
(v)
Ducts, vents (including dryer vents) and flues. The inspector
shall:
(1)
report as in need of repair deficiencies such as damaged
ducting or insulation, improper material or improper routing of ducts where
visible and accessible;
(2)
report as in need of repair the absence of air flow
at all accessible supply registers in the habitable areas of the structure;
(3)
report as in need of repair deficiencies in accessible
duct fans and filters;
(4)
report as in need of repair deficiencies in installation,
such as gas piping, sewer vents, electrical wiring or junction boxes in the
plenum, returns or chases or improper sealing, where visible;
(5)
report as in need of repair deficiencies in the flue
system components;
(6)
report as in need of repair a flue or vent pipe that
does not properly terminate; and
(7)
report as in need of repair deficiencies in materials
used for the venting systems.
(w)
Specific limitations for ducts and vents. The inspector
is not required to do the following:
(1)
determine the efficiency, adequacy or capacity of the systems;
(2)
determine the uniformity of the supply of conditioned
air to the various parts of the structure;
(3)
determine the types of materials contained in insulation,
wrapping of pipes, ducts, jackets, boilers and wiring;
(4)
operate venting systems unless ambient temperatures
or other circumstances, in the reasonable opinion of the inspector, are conducive
to safe operation without damage to the equipment; or
(5)
operate a unit outside its normal operating range
as reasonably determined by the inspector.
(x)
Plumbing systems. The inspector shall:
(1)
inspect and report as in need of repair deficiencies in
the type and condition of all accessible and visible water supply and waste-water
and vent pipes;
(2)
inspect and report as in need of repair deficiencies
in the operation of all fixtures and faucets where the flow end of the faucet
is not connected to an appliance;
(3)
report as in need of repair the lack of back-flow
devices, anti-siphon devices or systems or air gaps when applicable;
(4)
report as in need of repair incompatible materials
in connecting devices between differing metals in the supply system, where
visible;
(5)
report as in need of repair deficiencies in water
supply by viewing functional flow in two fixtures operated simultaneously;
(6)
report as in need of repair deficiencies in functional
drainage at accessible plumbing fixtures;
(7)
report as in need of repair deficiencies in installation
and identification of hot and cold faucets;
(8)
report as in need of repair mechanical drainstops
that are missing or do not operate if installed on sinks, lavatories and tubs;
(9)
report as in need of repair commodes that have cracks
in the ceramic material, are improperly mounted on the floor, leak or have
tank components which do not operate;
(10)
report as in need of repair accessible supply and
drain pipes that leak;
(11)
report as in need of repair the lack of a visible
vent pipe system to the exterior of the structure or improper routing or termination
of the vent system;
(12)
report as in need of repair a shower enclosure that
leaks; and
(13)
report as in need of repair any exterior faucet attached
or immediately adjacent to the structure that does not operate properly.
(y)
Specific limitations for plumbing systems. The inspector
is not required to do the following:
(1)
operate any main, branch or shut-off valves;
(2)
inspect any system that has been shut down or otherwise
secured;
(3)
inspect any components that are not visible or accessible;
(4)
inspect any exterior plumbing components such as water
mains, private sewer systems, water wells, sprinkler systems or swimming pools;
(5)
inspect fire sprinkler systems;
(6)
inspect or operate drain pumps or waste ejector pumps;
(7)
inspect the quality or the volume of well water;
(8)
determine the potability of any water supply;
(9)
inspect water-conditioning equipment, such as softeners
or filter systems;
(10)
inspect solar water heating systems;
(11)
determine the effectiveness of anti-siphon devices
on appropriate fixtures or systems;
(12)
operate free-standing appliances;
(13)
inspect private water supply systems, swimming pools,
or pressure tanks;
(14)
inspect the gas supply system for leaks; or
(15)
inspect for sewer clean-outs;
§535.230.Standards of Practice: Inspection Guidelines for Electrical Systems.
(a)
Service entrance and panels. The inspector shall:
(1)
inspect service entrance cables and report as in need of
repair deficiencies in the integrity of insulation, drip loop, separation
of conductors at weatherheads and clearances;
(2)
report as in need of repair a drop, weatherhead or
mast that is not securely fastened;
(3)
report as in need of repair the lack of a grounding
electrode conductor in the service where visible, or the lack of secure connection
to the grounding electrode or grounding system;
(4)
report as in need of repair accessible main or subpanels
that are not secured to the structure or appropriate for their location (weather-tight
if exposed to weather, appropriate clearances and accessibility) , do not
have inside covers (dead fronts) in place , do not have conductors protected
from the edges of metal panel boxes, do not have trip ties installed on labeled
240 volt circuits, do not have proper fasteners or do not have knockouts filled
;
(5)
inspect and report as in need of repair deficiencies
in the type and condition of the wiring in the panels, in the compatibility
of overcurrent protectors for the size of conductor being used and in sizing
of listed equipment of overcurrent protection and conductors, when power requirements
for listed equipment are readily available and breakers are labeled;
(6)
report as in need of repair a panel that is installed
in a hazardous location, such as a clothes closet;
(7)
report as in need of repair the absence of appropriate
connections, such as copper/aluminum approved devices, pig-tailed connections
or crimp connections; and the absence of anti-oxidants on aluminum conductor
terminations; and
(8)
report as in need of repair the lack of main disconnect(s)
.
(b)
Specific limitations for service entrance and panels. The
inspector is not required to do the following:
(1)
determine service capacity amperage or voltage or the capacity
of the electrical system relative to present or future use;
(2)
determine the insurability of the property;
(3)
conduct voltage drop calculations; or
(4)
determine the accuracy of breaker labeling.
(c)
Branch circuits, connected devices and fixtures. The inspector
shall:
(1)
report the type of branch circuit wiring;
(2)
inspect all accessible receptacles and report as in
need of repair a receptacle in which:
(A)
power is not present;
(B)
polarity is incorrect;
(C)
the unit is not grounded, if applicable;
(D)
there is evidence of arcing or excessive heat;
(E)
the unit is not secured to the wall;
(F)
the cover is not in place; or
(G)
ground fault circuit interrupter devices are not properly
installed as set forth by the current edition of the National Electric Code,
publication 70A of the National Fire Protection Association, or do not operate
properly as shown by use of a separate testing device;
(3)
operate all accessible wall and appliance switches
and report as in need of repair a switch that:
(A)
does not operate or is damaged;
(B)
displays evidence of arcing or excessive heat; or
(C)
is not fastened securely with cover in place.
(4)
inspect installed fixtures including lighting
devices and ceiling fans;
(5)
report as in need of repair an inoperable or missing
fixture;
(6)
report as in need of repair deficiencies in exposed
wiring, wiring terminations, junctions and junction boxes;
(7)
report as in need of repair deficiencies or absences
of conduit in appropriate locations or conduit that is not terminated securely;
(8)
report as in need of repair appliances and electrical
gutters that do not have proper bonding;
(9)
report as in need of repair subpanels that are not
properly bonded and grounded;
(10)
report as in need of repair the lack of disconnects
in appropriate locations;
(11)
inspect (if branch circuit aluminum wiring is discovered
in the main or subpanels) a random sampling of accessible receptacles and
switches and report as in need of repair the absence of appropriate connections,
such as copper/aluminum approved devices, pig-tailed connections or crimp
connections;
(12)
report as in need of repair the improper use of extension
cords; and
(13)
report as in need of repair the absence of, or deficiencies
in, the installation and operation of smoke or fire detectors not connected
to a central alarm system.
§535.231.Standards of Practice: Optional Systems.
(a)
Scope. This section covers other systems and attachments
that an inspector may inspect. The inspector may need special knowledge or
tools to perform these inspections. It is the responsibility of the inspector
to be properly informed and know current and safe procedures for inspecting
the items described in this section. The inspector shall determine and provide
a report of the condition of the equipment, systems, parts or components by
visual observation and operation in normal modes and operating range noted
at the date and time of the inspection. If an inspector agrees to inspect
a component described in this section, §535.227 of this title (relating
to Standards of Inspection: General Provisions) applies to the inspection.
(b)
Inspection guidelines for gas lines. The inspector shall:
(1)
inspect and report as in need of repair deficiencies in
the condition and type of all accessible and visible gas piping; and
(2)
test gas lines by using a local or an industry-accepted
procedure.
(c)
Specific limitations for gas lines. The inspector is not
required to inspect sacrificial anode bonding or for its existence.
(d)
Inspection guidelines for outbuildings. The inspector shall:
(1)
inspect the building and report as in need of repair water
penetration or deficiencies in structural performance; and
(2)
report as in need of repair deficiencies in electrical,
plumbing, heating, ventilation or air-conditioning systems that the standards
of practice would require the inspector to report for the principal structure.
(e)
Inspection guidelines for outdoor cooking equipment. The
inspector shall:
(1)
report the energy source and operate the unit;
(2)
report as in need of repair deficiencies in operation,
control knobs, handles, burner bars, grills, box, rotisserie (if present)
and heat diffusion material;
(3)
report as in need of repair a unit or pedestal that
is not stable;
(4)
report as in need of repair gas units that use improper
materials for the gas branch line and the connection to the appliance; and
(5)
report as in need of repair a gas unit that has no
shut-off valve, an inaccessible valve or a valve that leaks;
(f)
Inspection guidelines for lawn and garden sprinkler system.
The inspector shall:
(1)
operate all zones or stations on the system manually;
(2)
report as in need of repair deficiencies in water
flow or pressure at the circuit heads;
(3)
report as in need of repair surface water leaks, the
absence or improper installation of anti-siphon valves and backflow preventers
or the absence of shut-off valves;
(4)
inspect and report as in need of repair deficiencies
in the condition and mounting of the control box and visible wiring; and
(5)
report as in need of repair deficiencies in the operation
of each zone and associated valves, spray head patterns and areas of non-coverage
within the zone.
(g)
Specific limitations for lawn and garden sprinkler system.
The inspector is not required to inspect the automatic function of the timer
or control box, the rain sensor or the effectiveness and sizing of anti-siphon
valves or backflow preventers.
(h)
Inspection guidelines for private water wells. The inspector
shall:
(1)
operate at least two fixtures simultaneously;
(2)
report the type of pump and type of storage equipment;
(3)
report as in need of repair deficiencies in water
pressure and flow and operation of pressure switches;
(4)
inspect and report as in need of repair deficiencies
in the condition of visible and accessible equipment and components;
(5)
report as in need of repair wiring that is improper
or lacks circuit protection;
(6)
report as in need of repair deficiencies in the well
head, including improper site drainage;
(7)
recommend, or arrange to have performed, a coliform
analysis; and
(8)
report the proximity of any known septic system.
(i)
Specific limitations for private water wells. The inspector
is not required to do the following:
(1)
open, uncover or remove the pump, heads, screens, lines
or other component parts of the system;
(2)
determine water quality or potability or the reliability
of the water supply or source; or
(3)
locate or verify underground water leaks.
(j)
Inspection guidelines for Individual private sewage systems
(septic systems) . The inspector shall:
(1)
report as in need of repair deficiencies in accessible
or visible components of the system at the time of the inspection;
(2)
operate plumbing fixtures and report as in need of
repair deficiencies in functional flow;
(3)
walk over the area of tanks and fields or beds and
report as in need of repair any visual or olfactory evidence of effluent seepage
or flow at the surface of the ground;
(4)
report as in need of repair areas of inadequate site
drainage around or adjacent to the system;
(5)
report the proximity of any known water wells; underground
cisterns; water supply lines; streams, ponds and lakes; sharp slopes or breaks;
easement lines; property lines; soil absorption systems; swimming pools or
sprinkler systems.
(6)
inspect the operation of the system;
(7)
report the lack of visible access to tanks;
(8)
report the type of the system, if possible, and the
location of the drainfield; and
(9)
report as in need of repair aerators or dosing pumps
that do not operate or equipment that is improperly wired.
(k)
Specific limitations for individual private sewage systems
(septic systems) . The inspector is not required to do the following:
(1)
excavate or uncover the system or its components to determine
the size, adequacy or efficiency of the system; or
(2)
determine the type of construction used unless readily
known without excavation or destructive examination.
(l)
Inspection guidelines for swimming pools and equipment
(spas and hot tubs) . The inspector shall:
(1)
report the type of pool construction;
(2)
report as in need of repair deficiencies in pool surfaces,
(3)
report as in need of repair deficiencies in tiles,
copings and decks;
(4)
report as in need of repair deficiencies in slides,
steps, diving boards and other equipment;
(5)
report as in need of repair deficiencies in drains,
skimmers and valves;
(6)
report as in need of repair pool lights that are missing,
do not function or lack ground fault circuit interrupter protection;
(7)
report as in need of repair pump motors, controls,
and sweeps that do not function or lack proper wiring and circuit protection;
(8)
when inspecting a heater, report as in need of repair
deficiencies that the standards of practice would require the inspector to
report for a heating system;
(9)
report as in need of repair gas heaters that use improper
materials for the branch line and the connection to the appliance;
(10)
report as in need of repair a gas unit that has no
shut-off valve, an inaccessible valve or a valve that leaks;
(11)
report as in need of repair a pump motor, blower
or other electrical equipment, if visible, that lacks external grounding;
(12)
report as in need of repair above-ground water leaks
or deficiencies in the filter tank or pressure gauge; and
(13)
report as in need of repair the absence of, or deficiencies
in, fences, gates or enclosures.
(m)
Specific limitations for swimming pools and equipment (spas
and hot tubs) . The inspector is not required to the following:
(1)
dismantle or otherwise open any components or lines;
(2)
uncover or excavate any lines or otherwise concealed
components of the system or determine the presence of sub-surface leaks;
(3)
fill the pool, spa or hot tub with water;
(4)
determine the presence of sub-surface water tables;
or
(5)
inspect ancillary equipment such as computer controls,
covers, chlorinators or other chemical dispensers, or water ionization devices
or conditioners other than required by this section.
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 April 3, 2000.
TRD-200002379
Mark A. Moseley
General Counsel
Texas Real Estate Commission
Effective date: September 1, 2000
Proposal publication date: December 31, 1999
For further information, please call: (512) 465-3900
Part 5.
STATE BOARD OF DENTAL EXAMINERS
Chapter 112.
VISUAL DENTAL HEALTH INSPECTIONS
Chapter 116.
DENTAL LABORATORIES
Part 11.
BOARD OF NURSE EXAMINERS
Part 23.
TEXAS REAL ESTATE COMMISSION
Subchapter R. REAL ESTATE INSPECTORS
Chapter 537.
PROFESSIONAL AGREEMENTS AND STANDARD CONTRACTS