Part 3. TEXAS YOUTH COMMISSION

Chapter 85. ADMISSION AND PLACEMENT

Subchapter B. PLACEMENT PLANNING

37 TAC §85.23

The Texas Youth Commission (TYC) proposes an amendment to §85.23, concerning classification. The amendment to the section will ensure that sentenced offenders are not released from confinement except under rules controlling such release. The amendment will also add the penal code offense 22.11 Harassment by Persons in Certain Correctional Facilities, also known as chunking , and 22.105 Coercing, Soliciting or Inducting Gang Membership, as a type B violent offense. The classification, type B violent offender is a TYC administratively assigned classification based on a youth's committing or classifying offense. A twelve month minimum length of stay in a high restriction facility is attached when a youth is classified as a type B violent offender.

Terry Graham, Assistant Deputy Executive Director for Financial Support, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section.

Mr. Graham also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be greater protection for TYC staff and the general public. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the section as proposed. No private real property rights are affected by adoption of this rule.

Comments on the proposal may be submitted to DeAnna Lloyd, Policy and Manuals Coordinator, Texas Youth Commission, 4900 North Lamar, P.O. Box 4260, Austin, Texas 78765.

The amendment is proposed under the Human Resources Code, §61.75, which provides the Texas Youth Commission with the authority to determine the treatment of youth.

The proposed rule implements the Human Resource Code, §61.034, which provides the Texas Youth Commission with the authority to adopt rules to accomplish its function.

§85.23.Classification

(a)

Purpose. The purpose of this rule is to establish a system for classifying each youth admitted to the Texas Youth Commission (TYC), which can be consistently applied and ensures consistent management of each youth.

(b)

Explanation of Terms Used.

(1)

Classification - the designation assigned each youth based on the youth's offense history, the classifying offense, and a finding regarding extenuating circumstances incident to the classifying offense. A youth who commits an offense while in TYC custody may be administratively reclassified through a Level I hearing.

(2)

Classifying offense - the offense on which classification is based. It is the most serious of the relevant offenses documented in the youth's record. Relevant offenses are:

(A)

on commitment, the committing offense and any offense(s) for which the youth was on probation at the time of the committing offense; or

(B)

following a level I hearing, the offense(s) found at the hearing except when the hearing is for a youth classified as a sentenced offender, in which case, the youth's classification continues to be sentenced offender.

(3)

Committing offense - the most serious of the offenses found at the youth's most recent judicial proceeding.

(4)

Most serious offense - the offense having the most severe consequences attached. The most serious offense is determined according to the following hierarchy, with each subsequent factor being considered only if two or more relevant offenses yield the same result under the preceding factor. If two or more offenses yield the same results through all steps of the hierarchy, determination of the most serious offense is left to the discretion of the staff assigning classification. The most serious offense is:

(A)

an offense which carries determinate sentence;

(B)

the offense for which the designated minimum length of stay will produce the longest time in the physical custody of TYC;

(C)

the offense which requires the highest level of restriction in placement;

(D)

the offense which carries the most severe criminal penalty; and

(E)

the most recently adjudicated offense.

(5)

Federal offenses - youth who have committed federal offenses and are sent to TYC by Federal courts. If a committing and/or classifying offense is a violation of a federal statute, the offense will be treated as a violation of a state statute which prohibits the same conduct as the relevant federal statute. Federal violations will be identified by the code number assigned to the corresponding substantive state statute preceded by an "F".

(c)

Classification assignment is based on the policy in effect at the time a youth is classified or is reclassified as appropriate. Classification of youth currently classified shall not change when the criteria for classification changes.

(d)

Classifications.

(1)

Sentenced Offender. A sentenced offender is a youth committed to TYC pursuant to §54.04(d)(3) or §54.05(f) Family Code for offenses committed:

(A)

prior to January 1, 1996, for:

(i)

murder, 19.02, all

(ii)

capital murder, 19.03, all

(iii)

aggravated kidnapping, 20.04, all

(iv)

aggravated sexual assault, 22.021, all

(v)

deadly assault on a law enforcement officer, corrections officer, or court participant, 22.03, all

(vi)

criminal attempt, 15.01, only if the offense attempted was Capital Murder (Sec.19.03)

(B)

on or after January 1, 1996, for an offense listed in subsection (d)(1)(A) of this section or:

(i)

sexual assault, 22.011, all

(ii)

aggravated assault, 22.02, all

(iii)

aggravated robbery, 29.03, all

(iv)

injury to a child, elderly individual, or disabled individual, 22.04, first, second or third degree felony only

(v)

deadly conduct, 22.05, felony only

(vi)

aggravated or first degree controlled substances felony, subchapter D, Chapter 481 Health and Safety Code, aggravated or first degree felony only

(vii)

criminal solicitation, 15.03, all

(viii)

indecency with a child, 21.11, second degree felony only

(ix)

criminal solicitation of a minor, 15.031, all

(x)

criminal attempt, 15.01, only if offense attempted was a murder (sec. 19.02), indecency with a child (sec. 21.11(a)(1)), aggravated kidnapping (sec. 20.04), sexual assault 22.011(a)(2) upon a child only, aggravated sexual assault (sec. 22.021), aggravated robbery (sec. 29.03), or repeat conviction under Health and Safety Code 481.134(c), (d), (e), or (f).

(xi)

habitual felony conduct, as defined in Juvenile Justice Code, 51.031

(C)

on or after September 1, 1997, for an offense listed in subsection (d)(1)(A) or (d)(1)(B) of this section or arson, 28.02, first degree felony only.

(2)

Type A - Violent Offender. A type A violent offender is a youth whose classifying offense is the commission, attempted commission , conspiracy to commit, solicitation, solicitation of a minor to commit, or engaging in organized criminal activity to commit one of the offenses listed in this paragraph and who has not been sentenced to commitment in TYC. TYC adopts the Texas Penal Code definition (Title 5) for each offense in its entirety except where TYC policy limits the applicability to the specific subsections or under the conditions named.

(A)

murder, 19.02, all

(B)

capital murder, 19.03, all

(C)

sexual assault, 22.011, all

(D)

aggravated sexual assault, 22.021, all

(3)

Type B - Violent Offender. A type B violent offender is a youth whose classifying offense is the commission, attempted commission, conspiracy to commit, solicitation, solicitation of a minor to commit, or engaging in organized criminal activity to commit one of the offenses listed in this paragraph and who has not been sentenced to commitment in TYC. TYC adopts the Texas Penal Code definition for each offense listed in (A-Z) of this subsection in its entirety except where TYC policy limits the applicability to specific subsections or under the conditions named.

(A)

manslaughter, 19.04, all

(B)

criminally negligent homicide, 19.05, all

(C)

unlawful restraint, 20.02, felony only

(D)

kidnapping, 20.03, all

(E)

aggravated kidnapping, 20.04, all

(F)

assault, 22.01, felony only

(G)

indecency with a child, 21.11, all

(H)

sexual assault, 22.011, all (only for youth classified before July 1, 1996)

(I)

aggravated assault, 22.02, all

(J)

aggravated sexual assault, 22.021, all (only for youth classified before July 1, 1996)

(K)

injury to child, elderly or disabled individual, 22.04, all

(L)

abandoning or endangering a child, 22.041, all

(M)

deadly conduct, 22.05, felony only

(N)

terroristic threat, 22.07, felony only

(O)

aiding suicide, 22.08, felony only

(P)

tampering with a consumer product, 22.09, all

(Q)

harassment by persons in secure correctional facilities, 22.11, all

(R)

coercing, soliciting or inducing gang membership, 22.015, felony only

(S)

[ (Q) ] arson, 28.02, all

(T)

[ (R) ] robbery, 29.02, all

(U)

[ (S) ] aggravated robbery, 29.03, all

(V)

[ (T) ] burglary, 30.02, only with intent to commit any other type A or type B violent offense

(W)

[ (U) ] intoxication assault, 49.07, all

(X)

[ (V) ] intoxication manslaughter, 49.08, all

(Y)

[ (W) ] intentionally participating with at least two other persons in conduct at a contract program or TYC operated facility that threatens imminent harm to persons or property and substantially obstructs the performance of facility operations or a program therein.

(Z)

[ (X) ] intentionally, knowingly, or recklessly causing bodily injury to a:

(i)

TYC employee;

(ii)

contract program employee;

(iii)

volunteer; or

(iv)

person who is providing contract services at a contract program or TYC operated facility.

(4)

Chronic Serious Offender. A chronic serious offender is a youth whose classifying offense is a felony and who has been found to have committed at least one felony in each of at least three separate and distinct due process hearings, where the second felony was committed after the disposition of the first felony and the third felony was committed after the disposition of the second felony.

(5)

Controlled Substances Dealer. A controlled substances dealer is a youth whose classifying offense is any felony grade offense defined as a manufacture or delivery offense under the Texas Controlled Substances Act, Chapter 481, Health and Safety Code.

(6)

Firearms Offender. A firearms offender is a youth whose classifying offense involved a finding by the court or TYC hearings examiner that the youth possessed a firearm during the offense. Classifying offenses for this classification are not limited to offenses specified in Chapter 46 of the Texas Penal Code.

(7)

Violator of CINS Probation. A violator of CINS probation is a youth who:

(A)

is committed for violating terms of probation by an act which would not be punishable by imprisonment or confinement in jail if committed by an adult; and

(B)

was on probation at the time of the probation revocation for no act more serious than Conduct Indicating a Need for Supervision (CINS) as defined in the Texas Family Code, Title 3.

(8)

General Offender. A general offender is a youth who is not eligible for any other classification.

(e)

Extenuating Circumstances.

(1)

A designated classification, except sentenced offender, may be waived and a less restrictive classification assigned by a TYC hearings examiner at a TYC Level I due process hearing when the hearings examiner finds extenuating circumstances.

(2)

Extenuating circumstances incident to a violent offense are those facts which indicate that the youth is not a significant danger to the physical or emotional well-being of another. Examples of such facts include, but are not limited to:

(A)

the youth was an indirect or passive participant in a violent act;

(B)

the youth set fire to an abandoned vehicle;

(C)

the youth engaged in consensual sexual intercourse with someone who was capable of appraising the nature of that act and of resisting it.

(3)

Extenuating circumstances incident to offenses other than violent offenses are those facts which explain a youth's conduct but do not constitute a legally recognized defense to the conduct. Examples of such facts include, but are not limited to acts in which:

(A)

the only property involved in the offense was of minimal value and was returned undamaged to its owner;

(B)

the only bodily injury intended or inflicted by the youth consisted of brief or minor discomfort;

(C)

the youth's conduct was an impulsive response to perceived provocation and posed no threat to persons or property;

(D)

the youth was persuaded to participate in the offense by a parent or other authority figure.

(4)

When extenuating circumstances incident to the classifying offense are found, the designated classification may be waived.

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

Filed with the Office of the Secretary of State, on July 31, 2000.

TRD-200005325

Steve Robinson

Executive Director

Texas Youth Commission

Earliest possible date of adoption: September 17, 2000

For further information, please call: (512) 424-6301

Chapter 343. STANDARDS FOR JUVENILE PRE-ADJUDICATION SECURE DETENTION FACILITIES

37 TAC §343.8, §343.9

The Texas Juvenile Probation Commission proposes amendments to §343.8 and §343.9 concerning multiple occupancy sleeping units. The amendment is being proposed in an effort to alleviate some of the problems associated with overcrowding in detention facilities while maintaining certain space and supervision requirements.

Scott Friedman, Director of Field Services, has determined that for the first five year period the amendments are in effect, there will be no fiscal implications for state or local government or small businesses as a result of enforcement or implementation.

Mr. Friedman has also determined that for each year of the first five years the amendments are in effect, the public benefit expected as a result of enforcement or implementation will be primarily cost savings in construction of detention facilities and an increase in approved population capacity. There will be no impact on small business or individuals as a result of the amendments.

Public comments on the proposed amendments may be submitted to Kristy M. Carr at the Texas Juvenile Probation Commission, P.O. Box 13547, Austin, Texas, 78711-3547.

The amendments are proposed under Texas Human Resources Code §141.042, which provides the Texas Juvenile Probation Commission with the authority to adopt reasonable rules that provide minimum standards for juvenile boards and that are necessary to provide adequate and effective probation services.

No other rule or standard is affected by these amendments.

§343.8.Physical Plant.

(a)

Written policy and procedure and practice of the following standards shall apply to all detention facilities.

(1)-(5)

(No change.)

(6)

Population. The population in housing and living units shall not exceed the rated capacity of the facility. Written policies shall specify procedures to be followed in case the rated capacity is unavoidably exceeded. Such procedures shall specify steps to be taken to reduce the population to the rated capacity. [ A facility that is chronically overcrowded shall meet TJPC policies regarding such conditions in order to be considered for a temporary waiver of this standard. ]

(7)-(9)

(No change.)

(b)

The following standards shall apply to all detention facilities except for hold over detention facilities.

(1)

Sleeping units. [ Sleeping rooms shall be utilized as single occupancy, except for all juvenile detention facilities designed for multiple occupancy, and operating as such, prior to September 1, 1996. Sleeping rooms shall have a minimum ceiling height of seven and one-half feet and a minimum of 60 square feet of floor space. Juveniles held in sleeping rooms shall have access to a toilet above floor level, a wash basin, drinking water, running water, and a bed above floor level. There shall be separate sleeping rooms for male and female juveniles. ]

(A)

Single Occupancy Sleeping Units. Sleeping rooms shall be utilized as single occupancy, except for all juvenile detention units designed for multiple occupancy and approved by TJPC. Sleeping rooms shall have a minimum ceiling height of seven and one-half feet and a minimum of 60 square feet of floor space. Juveniles held in sleeping rooms shall have access to a toilet above floor level, a wash basin, drinking water, running water, and a bed above floor level. There shall be separate sleeping rooms for male and female juveniles.

(B)

Multiple Occupancy Sleeping Units. A unit designed and constructed for multiple occupancy sleeping which is self-contained and includes appropriate sleeping, sanitation and hygiene equipment or fixtures within the unit. The utilization of multiple occupancy sleeping units shall have prior written approval and authorization from the juvenile board. The following standards shall not apply to any multiple occupancy units designed and operating as such prior to the effective date of this section

(i)

The capacity of multiple occupancy sleeping units shall not exceed 25% of the design capacity of the facility. No more than eight juveniles shall be housed in each multiple occupancy sleeping unit. Separate units shall be provided for male and female residents.

(ii)

Multiple occupancy sleeping units shall have a minimum ceiling height of seven and one half feet with a minimum of thirty-five unencumbered square feet of floor space per resident.

(iii)

Multiple occupancy sleeping units shall have one bed above floor level for every juvenile assigned to the unit. Bunk beds are not allowed in the unit.

(iv)

Multiple occupancy sleeping units shall have within the unit, so that juveniles have access without having to be escorted out of the unit, to toilets (ratio of 1 toilet per 4 juveniles); wash basins (ratio of 1 wash basin per 8 juveniles); and drinking water.

(v)

Juveniles are not to be admitted to multiple occupancy sleeping units directly from the intake process. Classification, screening, and behavioral observation must occur for at least 72 hours before the decision is made to admit the juvenile to a multiple occupancy sleeping unit in accordance to 343.9(c).

(vi)

Juveniles in multiple occupancy sleeping units shall be under constant personal visual supervision by a detention officer. The ratio of staff to juveniles in the multiple occupancy sleeping units shall be 1 to 8 at all times. There shall be no architectural barriers between the supervising detention officer and the juveniles assigned to the unit.

(2)-(7)

(No change.)

(8)

Common activity area. Total common activity area [ space for day rooms, classrooms, dining rooms, and recreation rooms ] shall encompass no less than 100 square feet of floor space per juvenile. Common activity areas are defined as areas to which juveniles have access and in which activities are conducted. These areas include but are not limited to dayrooms, dining rooms, covered recreation areas, recreation rooms, education rooms, counseling rooms, testing rooms, visitation areas, and medical or dental rooms.

(9)-(12)

(No change.)

§343.9. Security and Control.

(a)

Written policy and procedure and practice of the following standards shall apply to all detention facilities.

(1)-(2)

(No change.)

(3)

Special Incidents. Written policy, procedure, and practice shall ensure that all [ All ] special incidents including, but not limited to , the taking of hostages, escapes, assaults, staff use of restraint devices , chemical agents, ] and physical force shall be reported in writing to the Administrative Officer. A copy of the report shall be [ is ] placed in the permanent file of the juvenile concerned. Written procedure shall designate persons or officials at the local level, as deemed appropriate by the juvenile board, to whom notice of special incidents shall be provided.

(4)-(7)

(No change.)

(b)

(No change.)

(c)

Written policy, procedure and practice of the following standards shall apply to all detention facilities that utilize multiple occupancy sleeping units.

(1)

Classification Plan. Facilities with multiple occupancy sleeping units shall have a classification plan that determines how juveniles are grouped in said units. Juveniles shall be classified for grouping by age and gender, at a minimum.

(2)

Screening Plan. Juveniles shall be psychologically, medically, and behaviorally screened by appropriate professionals prior to placement in a multiple occupancy sleeping unit. Juveniles with the following indicators shall not be allowed admittance to multiple occupancy sleeping units:

(A)

Medical illness which may be contagious to other residents or to staff unless they wear protective clothing and/or masks, or medical conditions which require treatment and/or equipment that would present a risk to resident or others;

(B)

Mental illness, if the resident exhibits behavior dangerous to other residents or to staff;

(C)

Mental retardation, if the resident exhibits behavior dangerous to other residents or to staff;

(D)

Sex offenders who cannot function appropriately in a group setting;

(E)

Exploitive, victimizing behavior;

(F)

Violent, explosive, assaultive behavior;

(G)

Chronic detention rule violators;

(H)

Juvenile likely to be exploited or victimized by others;

(I)

Juveniles who have other special needs for single housing; or

(J)

Any other behavior or condition which could impose a threat to self or others safety and health.

(3)

Administrative Approval. The placement of any juvenile into a multiple occupancy sleeping unit shall be approved by the facility administrator or other designated probation department administrators.

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

Filed with the Office of the Secretary of State, on August 2, 2000.

TRD-200005398

Lisa Capers

Deputy Executive Director and General Counsel

Texas Juvenile Probation Commission

Earliest possible date of adoption: September 17, 2000

For further information, please call: (512) 424-6710

Chapter 375. BUILDING CONSTRUCTION ADMINISTRATION

37 TAC §§375.1 - 375.11

The Texas Military Facilities Commission proposes amendments to §§375.1-375.11, concerning building construction administration.

The sections are being amended in order to be in compliance with House Bill 1, Article IX, §167, regarding review of an agency's rules. The adopted review to Chapter 375 is being published elsewhere in this issue of the Texas Register . As part of that review process, these sections are being amended.

Lydia Cruz, Director of Accounting and Administration, Texas Military Facilities Commission, has determined that for each year of the first five years that the proposed rules are in effect there will be no effect on state or local government.

Ms. Cruz has also determined that for each year of the first five years that the proposed rules are in effect, the benefit to the public will be the agency's compliance with House Bill 1, Article IX, §167. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the sections as proposed.

The Commission requests comments on the proposed rules from any interested person. Comments may be submitted, in writing, no later than 30 days after the date of publication of this notice to Tina Burford, Texas Military Facilities Commission, P. O. Box 5426, Austin, Texas 78763-5426.

The amendments are proposed under the Texas Government Code, Chapter 435, which authorizes the Commission to adopt rules deemed necessary in accordance with House Bill 1, Article IX, §167.

There is no other code, article, or statute affected by these amendments.

§375.1.General Project Responsibility.

(a)

The commission [ board ] staff (staff) is responsible for the administration of project analyses, major construction projects, [ and ] renovation projects , associated construction, and major contracted repairs for all Texas National Guard Armories ,facilities, and improvements owned by the state located on commission property [ and associated construction and major contracted repairs at these facilities ].

(b)

During the life of any project for which it has responsibility, the [ board ] staff will maintain close liaison with the adjutant general's department regarding the needs of the Texas National Guard.

(c)

Upon completion of a construction project, the [ board ] staff will establish the warranty date in compliance with contract documents and release the project to the adjutant general's department [ and release the project to the adjutant general's department ] for occupancy and use. The adjutant general's department then assumes responsibility for use of the facility.

(d)

During the term [ tenure ] of all warranties on a construction project, the staff [ board ] is responsible for assuring that the contractor meets the terms of such warranties.

(e)

Each construction project administered by the commission [ board ] shall bear the cost of services rendered thereon including, but not limited to, professional services, staff time, prior project analysis costs, travel expense, the estimated cost of minor and incidental materials used in pursuit of project, and an account necessary to cover employee benefits. At the start of a construction project, an estimate of the cost of normal and routine services will be developed by the staff [ facility engineer ].

(f)

Each project analysis prepared by the staff [ board ] will include an estimate of all administrative costs to be applied against a construction project based upon the analysis.

(g)

All private architectural/engineering (A/E) fees paid on a project analysis are deducted from A/E fees on a subsequent construction project, provided:

(1)

the A/E on the construction project is the same firm which prepared the project analysis; and

(2)

the construction project is in accordance with that proposed in the project analysis . Should the project vary substantially from the project analysis, the amount of prior project analysis fee will be prorated in accordance with the amount of change requested by the using agency, as mutually agreed upon by the Adjutant General's Department, [ using agency, ] the A/E, and the commission [ board ].

§375.2.Project Analysis Responsibilities.

(a)

Responsibility for initiation of a project analysis lies with the commission [ board ], the [ board ] staff, and the [ or ] adjutant general's department.

(b)

Project analyses shall be initiated not later than January 1 of even numbered years in order to assure completion in time for submission of proper data to budget agencies for study prior to the regular session of the legislature.

(c)

Project analyses may be prepared by the [ board ] staff or by a private A/E.

(d)

Project analyses shall include:

(1)

justification for the project in a brief and specific form;

(2)

an estimate of the annual cost of maintenance including utilities;

(3)

an estimate of the annual cost of operating the facility excluding staffing;

(4)

feasibility of construction of the project in stages if prudent; and

(5)

a program outlining the purpose and scope of the project including space requirements.

(e)

Upon completion and before submission to budget agencies, the staff [ board ] and adjutant general's department must certify that the analysis fulfills the adjutant general's department needs for the project.

(f)

Upon certification of its adequacy, the [ board ] staff will distribute copies of the analysis to the appropriate [ budget ] agencies.

(g)

Use of the project analysis in preparing a budget request to the legislature is the responsibility of the [ board ] staff.

§375.3.Construction Project Responsibilities.

(a)

Responsibility for initiation of a construction project is with the commission, [ board, board ] staff, and the [ or ] adjutant general's department.

(b)

Projects must be initiated in ample time for a contract award to be made within the fiscal year for which appropriated project funds are available. Based upon the size and complexity of a [ given ] project, the [ board ] staff has the prerogative of determining whether sufficient time is available to prepare proper bidding documents, secure bids, and award a contract.

(c)

Initial action by the adjutant general's department on a construction project shall be submission of a request to initiate the project.

(d)

An adjutant general's department request must identify the amount, if any, of the federal funds to be applied to the project.

(e)

Selection of a firm to provide professional services on a project will be in accordance with adopted rules.

(f)

If a construction project is supported by a prior prepared project analysis, the analysis shall be the project program unless the adjutant general's department advises that an unavoidable change in project conditions has forced a modification in the analyzed concept.

(g)

If a construction project is not supported by a project analysis, the adjutant general's department should cooperate with the [ board ] staff to provide necessary data on which to prepare a project program. The [ board ] staff will be responsible for distribution of information to the A/E.

(h)

During project development, the adjutant general's department shall review and approve each phase before the next phase is started, including schematic design, design development, and finished working drawings and specifications.

(i)

The Adjutant general's department approval of working drawings and specifications constitutes staff [ board ] authority to proceed with solicitation of bids.

(j)

[ When bids are received, the board ] The staff will formally award a contract if acceptable bid(s) are within the approved project budget. If bid(s) exceed the approved budget, the [ board ] staff will again review the bids and if the bids appear reasonable, and funds are available, the staff may [ shall consult the board for authority to award a contract and ] revise the [ project ] budget and award a contract .

(k)

Should the budget not provide a basis for a contract award, the [ board ] staff will request consultation to determine whether the scope of the project can be reduced enough to bring it within the budget.

(l)

Staff [ During tenure of the contract, the board staff ] will make all payments on the project.

(m)

Any [ During tenure of the contract, any ] changes in the scope of the work shall be approved by the [ board ] staff before being made a part of the contract.

(n)

Upon completion of construction, a representative of the adjutant general's department shall be invited to attend [ an owner's ] final inspection, called and conducted by the [ board ] staff.

§375.4.Qualification of Architect/Engineer (A/E) for Professional Services.

(a)

For the purpose of this chapter, an architect/engineer means a person licensed to practice architecture/engineering in Texas. [ registered as an architect pursuant to Chapter 478, Acts of 45th Legislature, regular session, 1937, as amended (codified as Texas Civil Statutes, Article 249a) and/or a person registered as a professional engineer pursuant to Chapter 404, Acts of the 45th Legislature, regular session, 1937, as amended (codified as Texas Civil Statutes, Article 3271a), ] The architect/engineer is employed to provide professional architectural and/or engineering services and having overall responsibility for the design of a project. The term architect/engineer standing by itself may, unless the context clearly indicates otherwise, mean either an architect/engineer employed by the commission [ board ] on a salary basis or an architect/engineer in private practice retained under a contractual agreement with the commission [ board ]. The term private architect/engineer shall specifically refer to a registered architect or registered professional engineer in private practice retained by the commission [ board ] under a contractual agreement.

[ (b)

Any A/E is eligible for consideration to provide professional services on the board projects.]

(b)

[ (c) ] The A/E shall submit informative responses [ answers ] to a request for qualifications [ questionnaire ] regarding the size of [ his ] staff, field of interest, experience, and capability and may[ , if he chooses, ] supplement the answers with brochures and other material.

(c)

[ (d) ] The [ board ] staff will maintain all data received from A/E on [ in a suitable ] file for reference.

§375.5.Selection of Architect/Engineer for Professional Services.

When funds are made available to the commission [ board ] for a construction project, the following procedures shall be followed.

(1)

The director will form a selection committee using commission [ the agency facility engineer and other agency ] employees who are knowledgeable concerning the nature, scope, project location and who have an understanding of state or federal facility design, engineering, and/or contracting procedures. The [ From time to time the ] director may, with the concurrence of the Adjutant General of Texas, utilize available employees of the adjutant general's department or active members of the Texas National Guard to serve as members of such selection committees.

(2)

The selection committee will determine from the project description a list of the minimum qualifications that a prospective A/E should possess in order to provide professional services on the project.

(3)

The selection committee, where possible, will compile a list of at least three firms that meet or exceed the minimum qualifications for further consideration.

(4)

The list will be drawn from a file of A/E firms which have expressed an interest in work supervised by the commission [ board ] by having responded to a request for qualification [ questionnaire ] or by submitting adequate data on experience and capability in other formats.

(5)

Firms selected for consideration will be notified and given a brief description of the project, and those interested in further consideration will be scheduled for interviews with the selection committee.

(6)

Each firm interviewed will be rated individually by each committee member on a numeric scale [ of 1 to 10 ]. The firm receiving the highest total rating from the [ combined ] members of the committee will be considered the preferred firm for the project.

(7)

In case of identical scores, additional qualifications of the firms will be considered and rated individually until ties are resolved.

(8)

The staff will attempt to negotiate an agreement with the architect/engineer scored the highest by the selection committee. Negotiations by the staff will be under the direction of the executive director. Should the staff be unable to reach an agreement with the architect/engineer scored the highest by the selection committee, the staff will terminate negotiations with that architect/engineer and attempt to negotiate an agreement with the architect/engineer scored the next highest by the selection committee. Should the commission be unable to reach an agreement with this firm, a similar procedure will be followed until an agreement is reached. [ The firm rated highest by the committee will then be offered the project and an agreement negotiated for the work to be performed. Should the selected firm and the board staff fail to arrive at a mutually acceptable agreement, the project will be offered to the firm rated second highest. In the unlikely event that an agreement cannot be reached with the second choice, a similar procedure will be followed with the third highest rated firm. ]

(9)

After selection is completed, unsuccessful firms will be advised of the decision [ determination ].

(10)

Items of consideration in making the initial selection will include, but will not be limited to, the following:

(A)

The A/E's experience with projects similar in nature to the one for which the firm is being considered;

(B)

the location of the A/E's home office relative to the project site;

(C)

compatibility between the size of the firm and the size of the project;

(D)

the quality and amount of previous work done for the commission [ board ] (Satisfactory experience is obviously conducive to favorable consideration, but in the interest of giving as many eligible and qualified firms as possible a fair chance to obtain commission [ board ] work, a substantial amount of prior commission [ board ] work may be the basis for rejection);

(E)

current work load and capability of proceeding with project at reasonable speed; and

(F)

experience with control of budgets and schedules; [ cooperation with owners. ]

(G)

the A/E status as a Historically Underutilized Business (HUB).

§375.6.Contracts with Architects/Engineers.

(a)

The contract form for A/E services is a standard document adopted by the staff [ board ] or National Guard Bureau and approved by the attorney general of Texas for use.

(b)

The contract will name the project, state the budgeted project cost, describe the respective responsibilities of the A/E and the commission [ board ], and establish the compensation the A/E will receive for his services.

(c)

Compensation for A/E services is not bound by a fixed schedule except as may be otherwise established by law.

(d)

The contract may be amended to reflect desirable changes in project scope, responsibility, or compensation at any time upon written consent of both contracting parties.

§375.7.Qualifications of Contractor To Bid Construction Projects.

(a)

Any contractor interested in participating in bidding on any commission [ board ] construction/renovation project should advise the commission [ board ] thereof by writing.

(b)

An interested contractor will be sent a contractor's qualifications form to complete and return to the commission [ board ]. The completed form will provide information concerning the contractor's type of organization, names of partners or officers, type of work performed, experience history, financial condition, bonding capacity, and financial and construction related references. Contractor may update file information [ File information may be updated by contractor ] as significant changes in [ his ] status occur.

(c)

Staff will determine if contractors meet the minimum qualifications for the project before making bidding documents available [ Out of state contractors may bid state work but must, if awarded a contract, notify the state comptroller of public accounts, Texas Employment Commission, state industrial accident board, and local county tax assessor/collector and must execute a nonresident contractor's surety bond for 10% of the contract, unless the contractor is eligible for a reciprocity exemption under Texas Civil Statutes, Article 5160a ].

§375.8.Bidding Procedures.

(a)

All commission [ board ] construction/renovation projects are to be bid competitively with bids being opened publicly in the office of the commission [ board ] or another location designated in the bid advertisement and in the bid documents.

(b)

The staff shall place advertisement [ Advertisement ] for bids [ is placed by the board staff ] in not less than two newspapers of general circulation far enough in advance of the bid opening date to allow bidders [ bidder ] time to secure and examine bid documents and to prepare a bid therefrom.

(c)

Upon determination by the staff that a project for repair, rehabilitation, or renovation is of an emergency nature necessary to prevent or remove a hazard to life or property, the staff may issue a bid advertisement for such emergency project less than 30 days in advance of bid opening date.

(d)

Upon determination by the staff that, in order to prevent undue additional costs to a state agency, it is necessary that a project for repair, rehabilitation, or renovation commence within a time frame which does not permit normal bidding procedures to be utilized, the staff may issue a bid advertisement for such project less than 30 days in advance of bid opening date.

(e)

[ (c) ] Advertisement for bids shall contain pertinent information on the project, including name and location of the project; date, time, and place of the bid opening[ ; ] and pre-bid conference; where and how bid documents may be obtained; and a listing of the requirements of the contractor for submitting the bid.

(f)

[ (d) ] To eliminate the expense of bid preparation by a contractor not qualified to perform the work, a contractor must secure the permission of the [ board ] staff to obtain bidding documents prior to receiving these documents.

(g)

[ (e) ] All bids submitted must be accompanied by [ either ] bid bond, cashier's check, or certified check in the amount indicated in the Invitation for Bid and Instructions to Bidders and a Surety's Commitment to provide a Performance and Payment Bond if awarded the contract . [ of 5.0% of the bid submitted ]

(h)

[ (f) ] A bid proposal must submitted on the form, or a clear reproduction thereof, provided with the bid documents.

(i)

[ (g) ] Bids should be submitted in sealed envelopes externally identified as to content, including project name and number, bid opening date, and name and address of bidder. Failure to identify sealed envelopes containing bid proposal(s) will not disqualify a bid but may increase the possibility of the bid being inadvertently misdirected and not officially received in proper time. [ Special bid envelopes are provided by the board for this purpose. Failure to use the envelope will not disqualify a bid but may increase the possibility of the bid's being inadvertently misdirected and not officially received in proper time. ] It is the sole responsibility of bidders to deliver proposals to the designated bid opening site prior to the time the bids are scheduled to be read. Any bid received after this time will be returned unopened to the bidder.

(j)

[ (h) ] Bidding documents shall include the plans and specifications, including all addenda issued thereto. Bidders are assumed to have given full consideration to the entire content of any proposal submitted.

(k)

Bids should be submitted in sealed envelopes externally identified as to content, including project name and number, bid opening date, and name and address of bidder. Failure to identify sealed envelopes containing bid proposal(s) will not disqualify a bid but may increase the possibility of the bid being inadvertently misdirected and not officially received in proper time. It is the sole responsibility of bidders to deliver proposals to the designated bid opening site prior to the time the bids are scheduled to be read. Any bid received after this time will be returned unopened to the bidder.

(l)

Bidding documents shall include the plans and specifications, including all addenda issued thereto. Bidders are assumed to have given full consideration to the entire content of any proposal submitted.

§375.9.Contract Award.

(a)

Formal award of construction contracts will be made by the [ board ] staff. Award will be based upon the lowest and best bid received from a qualified bidder.

(b)

All advertised conditions, which bear upon the quality of a bid proposal, will be considered when making an award. The commission reserves the right to accept or reject all or any part of any bid, waive minor technicalities, waive any and all formalities of bidding and award the bid to best serve the interests of the state. The commission is not bound to accept the lowest bid or any proposal for this work or any part, and has the right to request new bids for the whole or any parts. [ All advertised conditions which bear upon the quality of a bid proposal will be considered when making an award. The board reserves the right to reject any or all bids when in the best interest of the owner it is necessary to do so. ]

(c)

Award shall become effective upon the date that the commission formally accepts a bidder's proposal or any part [ thereof is formally accepted by the board ] and notice thereof is communicated to the successful bidder. A contract binding on both parties will exist from that date forward.

(d)

Formal notice of award to the successful bidder shall be in writing and shall state the basis of award.

(e)

The furnishing of any required bonds and insurance by the contractor is not prerequisite to award of a contract but constitutes a part of the work and must be provided before any work on the project site is initiated and before the [ board ] staff can issue a Notice to Proceed [ work order ].

(f)

Contract documents will consist of the following:

(1)

the contractor's proposal;

(2)

the owner-contractor agreement;

(3)

the conditions of the contract (general, supplementary general, and special conditions);

(4)

the drawings and specifications;

(5)

the notice and description of the award;

(6)

the bidding documents;

(7)

the advertisement and Invitation for Bids and Instructions to Bidders;

(8)

all addenda to the plans and specifications issued prior to bid opening; and

(9)

all change orders issued after execution of the contract.

[ (2)

the notice and description of the award;]

[(3)

the bidding documents;]

[(4)

all addenda to the plans and specifications issued prior to bid opening; and]

[(5)

all changes in the work made after award of the contract.]

§375.10.Construction Contract Administration.

(a)

Upon completion of contract award procedures and the furnishing of all required insurance and bonds by the contractor, the board staff will issue a written work order to the contractor which establishes the starting and completion date of the contract.

(b)

Prior to commencement of work on the contract, the [ board ] staff will schedule and hold a preconstruction conference to explain routine administrative procedures and answer any questions about the contract documents. This conference is for the benefit of the prime contractor, his subcontractors, and the A/E.

(c)

All activities of a contractor on a project [ for which he has a contract ] shall be in accordance with the contract documents.

(d)

Unless [ expressly ] modified because of job conditions peculiar to a specific project, procedures followed by the [ board ] staff in the administration of construction projects shall include the following.

(1)

At the start of work, a contractor shall submit to the [ board ] staff for review a listing of [ his major ] subcontractors , and material suppliers and the name of the [ his ] job superintendent.

(2)

At the start of work, a contractor shall submit to the [ board ] staff for approval a schedule of values [ breakdown ] of the material and labor costs of the various work items in the contract.

(3)

The board staff will review all submittals, shop drawing, and schedules required by the specifications before final approval is given thereon.

(4)

The board staff will periodic on-site inspections of work in progress as it deems necessary and may assign a full-time inspector to a project if justified by its size and nature. An official owner's final inspection is conducted at the completion of each project.

(5)

Partial payments for work performed are made monthly. Request for payment must be submitted on [ state ] construction voucher forms supplied by the [ board ] staff and must include the project schedule of values [ cost breakdown ] as approved at the start of the project.

(6)

Changes in the work on a construction project are not official until the staff has [ they have been ] formally approved them [ by the board staff ]. The staff [ owner ] shall provide necessary forms for documenting all changes in the work.

(7)

Changes in the contract time [ tie ] of a construction project are not official until approved by the [ board ] staff. Forms [ Necessary forms ] for documenting [ reasons for ] time extension requests are provided by the staff [ contractor ].

(8)

After a final inspection has been completed [ held ] and the [ board ] staff is satisfied that all conditions of the contract have been met, the contractor may submit a [ his ] request for final payment.

(9)

The contractor must warrant all materials and labor incorporated into a project against failure for a period of one year from the date of substantial completion [ acceptance of the project by the board staff ]. Extended warranties are required on specific items of work.

(10)

At the end of the warranty period, a warranty inspection will be conducted, and any discrepancies found which are not beyond the contractor's control shall become the contractor's responsibility to correct. It is also the contractor's responsibility to make corrections of discrepancies as they occur during the warranty period when notified of such. [ At the end of the warranty period, a warranty inspection will be held, and failures found which are not attributable to owner/user misuse or to acts of God beyond the contractor's control shall become the contractor's control shall become the contractor's responsibility to correct. It is his further responsibility to make corrections of failures as they occur during the warranty period when brought to his attention. ]

(11)

An A/E retained for professional services on a construction project is a representative of the commission [ board ] and is the person to whom the contractor should go when initiating any of the procedures in paragraphs (1)-(10) of this subsection or when project conditions require owner approval or action.

§375.11.State of Texas Uniform General Conditions (UGC).

(a)

The Texas Military Facilities Commission (TMFC) adopts by reference the State of Texas Uniform General conditions as they appear in 1 TAC Chapter 123 on the effective date thereof.

(b)

Changes in the UGC may be made by the TMFC when circumstances arise making applicability of any provision of the document either illegal or clearly impractical. On Federally funded projects, the TMFC may waive, suspend or modify any Article in the Uniform General Conditions or the Supplementary General Conditions which conflict with any Federal statute, rule, regulation or procedure, where such waiver, suspension or modification is essential to receipt by the TMFC of such Federal funds for the project. In the case of any project wholly financed by Federal funds, and standards required by the enabling Federal statute, or any Federal rules, regulations or procedures adopted pursuant thereto, shall be controlling, but shall not weaken the character or intent of the Uniform General Conditions or the Supplementary General Conditions.

[ (a)

Texas Civil Statutes, Article 601b, §5.26, holds the state purchasing and general services commission responsible for periodic review of the State of Texas Uniform General Conditions, and holds all state agencies responsible for use of any changes to the UGC resulting from such review.]

[ (b)

All review procedures shall be in accordance with the provisions of Texas Civil Statutes, Article 601b, §5.26(b).]

[ (c)

Emergency changes in the UGC may be made by the state purchasing and general services commission when any circumstances arises making applicability of any provision of the document either illegal or clearly impractical.]

(c)

[ (d) ] Changes in the UGC either as a result of formal review or emergency will be submitted to the Office of the Attorney General for review of legal sufficiency [ are distributed to all contracting authorities of the State of Texas ].

(d)

[ (e) ] The UGC are applicable to all building construction contracts entered into by the TMFC, [ agencies of the state, ] which is [ are ] solely responsible for any consequences resulting from the [ their ] use of the documents [ document ].

(e)

[ (f) ] The commission [ board ] staff is responsible for compliance with all state statutes or regulations concerning the application of the UGC.

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

Filed with the Office of the Secretary of State, on August 7, 2000.

TRD-200005451

Jerry D. Malcolm

Executive Director

Texas Military Facilities Commission

Earliest possible date of adoption: September 17, 2000

For further information, please call: (512) 406-6971