Part 16.
TEXAS BOARD OF PHYSICAL THERAPY EXAMINERS
Chapter 341.
LICENSE RENEWAL
22 TAC §341.6
The Texas Board of Physical Therapy Examiners proposes amendments
to §341.6, concerning Restoration of license. These amendments delete
an outdated reference to CEUs, clarify how timeliness is determined, and change
the basis for the restoration fee from the NPTE fee to the board's renewal
fee.
John P. Maline, Executive Director of the Executive Council of Physical
Therapy and Occupational Therapy Examiners, has determined that for the first
five-year period the rule is in effect there will be no effect on state or
local government.
Mr. Maline also has determined that for each year of the first five years
the rule is in effect the public benefit anticipated as a result of enforcing
the rule will be clearer instructions for restoration of license. There will
be no effect on small business, and no economic cost to persons having to
comply is anticipated.
Comments on the proposed amendments may be submitted to Nina Hurter, PT
Coordinator, Texas Board of Physical Therapy Examiners, 333 Guadalupe, Suite
2-510, Austin, Texas 78701; email: nhurter@mail.capnet.state.tx.us.
The amendments are proposed under the Physical Therapy Practice
Act, Title 3, Subtitle H, Chapter 453, Occupations Code, which provides the
Texas Board of Physical Therapy Examiners with the authority to adopt rules
consistent with this Act to carry out its duties in administering this Act.
Title 3, Subtitle H, Chapter 453, Occupations Code is affected by this
amended section.
§341.6.Restoration of License.
(a)
When a licensee fails to renew the license within the renewal
month, as indicated by the postmark
date on the items required for renewal,
[
(1)
If
the
[
(2)
If
the
[
(3)
If
the
[
(4)
If the license has been expired for
one year or more, and the licensee is currently licensed and has actively
practiced in another state for the past two years, the board may renew the
license without examination. The licensee must provide appropriate documentation
and proof of current licensure in another state for the two-year period. The
licensee also must pay to the executive council a restoration fee that is
equal to the renewal fee for the license. If the board no longer has the licensee's
application file, the licensee must also submit a new application, including
the application fee, in accordance with §329.6(b) of this title (relating
to Licensure of Persons Currently Licensed in Other States, the District of
Columbia, or Territories of the United States).
(b)
When a person restores a license, the renewal month stays
the same as the original renewal month.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State, on May 15, 2000.
TRD-200003362
John P. Maline
Executive Director
Texas Board of Physical Therapy Examiners
Earliest possible date of adoption: June 25, 2000
For further information, please call: (512) 305-6900
22 TAC §341.8
The Texas Board of Physical Therapy Examiners proposes amendments
to §341.8, concerning Inactive status. These amendments establish that
the board charges a fee to go inactive, rather than to return to active status,
clarify that a late fee will be charged if the change in status is not completed
prior to the license expiration date; clarify that a passing score on the
jurisprudence exam is a requirement to return to active status; and correct
a misstatement about continuing education requirements.
John P. Maline, Executive Director of the Executive Council of Physical
Therapy and Occupational Therapy Examiners, has determined that for the first
five-year period the rule is in effect there will be no effect on state or
local government.
Mr. Maline also has determined that for each year of the first five years
the rule is in effect the public benefit anticipated as a result of enforcing
the rule will be clearer instructions for licensees about the inactive status,
and more efficient administrative processes. There will be no effect on small
business, and no economic cost to persons having to comply is anticipated.
Comments on the proposed amendments may be submitted to Nina Hurter, PT
Coordinator, Texas Board of Physical Therapy Examiners, 333 Guadalupe, Suite
2-510, Austin, Texas 78701; email: nhurter@mail.capnet.state.tx.us.
The amendments are proposed under the Physical Therapy Practice
Act, Title 3, Subtitle H, Chapter 453, Occupations Code, which provides the
Texas Board of Physical Therapy Examiners with the authority to adopt rules
consistent with this Act to carry out its duties in administering this Act.
Title 3, Subtitle H, Chapter 453, Occupations Code is affected by this
amended section.
§341.8.Inactive Status.
(a)
Requirements for Inactive Status. Inactive status indicates
the voluntary termination of the right or privilege to practice physical therapy
in Texas by a licensee in good standing with the board.
A licensee who
is not actively engaged in the practice of physical therapy in the state may
request a change to inactive status, to be effective on the next license renewal
date.
(1)
To be put on inactive status, the licensee must notify
the board in writing and submit the inactive fee as adopted by the executive
council. The written request and the fee must be received prior to the expiration
date of the license.
[
(2)
If the inactive status requirements
are not met prior to the expiration date of the license, the licensee is subject
to late renewal fees as adopted by the executive council.
[
(3)
A licensee on inactive status must
fulfill the continuing education requirements set for active license renewal
for each two-year renewal period the license is inactive, including the one
in which the inactive status is requested.
(4)
[
(5)
A licensee may remain on inactive
status for no more than six consecutive years (three renewal periods). A licensee
may petition the board in writing for an extension of inactive status for
more than six years.
(b)
Reinstatement of active status. A licensee on inactive
status may request a return to active status at any time. After the licensee
has fulfilled the requirements for reinstatement, the board will send a renewal
certificate for the current two-year renewal period to the licensee [
(1)
a successfully completed jurisprudence exam
[
(2)
the license renewal fee for the current renewal period;
(3)
a completed and notarized
reinstatement
[
(4)
proof of the required amount of continuing education
for each two-year renewal period on inactive status, including the current
period and the renewal period prior to the effective date of the inactive
status. Alternatively, the licensee applying for reinstatement to active status
may substitute
for the continuing education requirements
one of
the following actions [
(A)
re-take and pass the national licensure exam;
(B)
attend a university review course pre-approved by the board;
or
(C)
complete an internship (equal to 150 hours of continuing
education) pre-approved by the board.
This agency hereby certifies that the proposal
has been reviewed by legal counsel and found to be within the agency's legal
authority to adopt.
Filed with the Office of
the Secretary of State, on May 15, 2000.
TRD-200003363
John P. Maline
Executive Director
Texas Board of Physical Therapy Examiners
Earliest possible date of adoption: June 25, 2000
For further information, please call: (512) 305-6900
Chapter 535.
PROVISIONS OF THE REAL ESTATE LICENSE ACT
Subchapter M. NONRESIDENTS
22 TAC §535.131, §535.132
The Texas Real Estate Commission (TREC) proposes an amendment
to §535.131, concerning the splitting of fees with nonresident brokers,
and to §535.132, concerning a nonresident's eligibility for a Texas real
estate broker or salesperson license. The amendments are proposed in connection
with TREC's on-going review of its rules and are generally intended to clarify
the existing sections and revise them to address changes in law or policy
since the sections were adopted.
The amendment to §535.131 rewrites the section to cite TREC's enabling
act and to make the section easier to read. The amendment also clarifies that
a person engaged in real estate brokerage in a foreign state that does not
license brokers will be considered a licensed broker for the purpose of Texas
Civil Statutes, Article 6573a, §14 if the person complies with the law
of the foreign state and practices there as a real estate broker. The purpose
of the section is to prevent the sharing of fees with a person who is not
in compliance with the law of the state in which the person practices, and
the purpose would continue to be served by requiring the foreign broker to
practice in compliance with the requirements of the foreign law. Permitting
cooperation between foreign brokers and Texas licensees may also serve the
public interest by opening up cross-border business between Texas consumers
and residents of states which do not presently license real estate brokers.
The amendment to §535.132 adds limited liability companies to the
general provisions of the section relating to the licensing of corporations
chartered in another state. These entities are treated in the same manner
in Texas Civil Statutes, Article 6573a, and the amendments would clarify that
a limited liability company created under the law of another state may apply
for a Texas real estate broker license if the limited liability company is
licensed as a broker in the state in which it was created or is licensed as
a broker by a state in which it is permitted to engage in business as a foreign
limited liability company. In some states, a limited liability company or
corporation cannot be licensed as a broker, and the amendment clarifies that
the business entity may use a license issued by another state for the purpose
of qualifying for a Texas license.
Mark A. Moseley, general counsel, has determined that for the first five-year
period the sections are in effect there will be no fiscal implications for
the state or for units of local government as a result of enforcing or administering
the sections. There is no anticipated impact on small businesses, micro businesses
or local or state employment as a result of implementing the sections.
Mr. Moseley also has determined that for each year of the first five years
the sections as proposed are in effect the public benefit anticipated as a
result of enforcing the sections will be elimination of confusion as to whether
foreign brokers may be paid a real estate commission in Texas or obtain a
Texas real estate license. There is no anticipated economic cost to persons
who are required to comply with the proposed sections.
Comments on the proposal may be submitted to Mark A. Moseley, General Counsel,
Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188.
The amendments are proposed 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.
The statute which is affected by this proposal is Texas Civil Statutes,
Article 6573a.
§535.131.Unlawful Conduct; Splitting Fees.
(a)
The Real Estate License Act,
Texas Civil Statutes,
Article 6573a,( the Act)
permits Texas-licensed brokers to cooperate
with and share earned
commissions
[
(b)
As used in §14 of the Act, the
[
(c)
An unlicensed person may share in the income earned by
a real estate brokerage operation
if the
[
(d)
If a member of a partnership or an officer of a corporation
does not engage in
acts for which a license is required
[
(e)
A resident of a foreign state that does
not require a person to be licensed to act as a real estate broker is considered
to be licensed as a broker for the purposes of the Act, §14(a), if the
person complies with the law of the foreign state and practices there as a
real estate broker.
§535.132.Eligibility for Licensure.
(a)
(No change.)
(b)
A limited liability company created under the laws
of another state or a
[
(1)
The entity is licensed as a broker by the
state in which is was created or chartered.
(2)
The entity is licensed as a broker
in a state in which it is permitted to engage in real estate brokerage business
as a foreign limited liability company or corporation.
(3)
The entity was created or chartered
in a state that does not license limited liability companies or corporations,
as the case may be, and the entity
[
(c)
An individual licensed as a broker who subsequently moves
to another state
is not
[
(d)
The word "state" refers to the states, territories, and
possessions of the United States and any foreign country or governmental subdivision
thereof.
(e)
To be eligible to receive a license and maintain an
active license, a limited liability company or corporation created or chartered
in another state must designate a person to act for it who meets the requirements
of the Act, §6(c), although the designated person is not required to
be a resident of Texas. Foreign corporations and limited liability companies
also must be permitted to engage in business in this state to receive a Texas
real estate broker license.
[
[
[
[
[
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State, on May 12, 2000.
TRD-200003341
Mark A. Moseley
General Counsel
Texas Real Estate Commission
Earliest possible date of adoption: June 25, 2000
For further information, please call: (512) 465-3900
22 TAC §§535.141, 535.143 - 535.148, 535.154, 535.156, 535.159
The Texas Real Estate Commission (TREC) proposes amendments
to §§535.141, concerning initiation of investigation, 535.143, concerning
fraudulent procurement of a license, 535.144, concerning a licensee's conduct
when acquiring or disposing of property, 535.145, concerning false promises,
535. 146, concerning failure to properly account for or remit money and commingling,
535.147, concerning splitting a fee with an unlicensed person, 535.154, concerning
false advertising, 535.156, concerning dishonesty, bad faith or untrustworthiness,
533.159, concerning failing properly deposit escrow monies and new §535.148,
concerning a licensee's receiving an undisclosed commission or rebate. The
amendments and new section are proposed in connection with TREC's on-going
review of its rules and are generally intended to update and to clarify the
grounds for disciplinary action against Texas real estate licensees.
The amendment to §535.141 clarifies that easement and right-of-way
agents registered with TREC are "licensees" for the purposes of the section,
which relates to the investigation of complaints and the effect of a suspension
or revocation on a licensee's business. To streamline the resolution of complaints,
the amendment also would permit a licensee not named in the original complaint
to be included in the investigation if reasonable cause has been found in
the course of the investigation to believe that the licensee has engaged in
a violation of the law or a TREC rule. In some cases, all the licensees who
were involved in a transaction are unknown to the complainant and may not
be named in the original complaint. Before the licensee could be added to
the investigation, however, the section would require TREC to notify the licensee
and provide the licensee with a copy of the complaint. Currently, these matters
are presented to the members of the commission at a public meeting; adoption
of the amendment would permit investigations to be concluded more quickly.
The amendment to §535.143 would shorten the rule to make it easier
to read by combing two related subsections.
The amendment to §535.144 would clarify when a licensee is considered
to be acting on his or her own behalf. Licensees who are acting on their own
behalf in a real estate transaction are subject to discipline by TREC if they
engage in misrepresentation, fraud or dishonesty. The section requires a licensee
acting on his or her on behalf to disclose in writing the fact that the person
is licensed as a real estate broker or salesperson, either in the contract
of sale or rental agreement, or in a writing given prior to entering into
any contract. The amendment would treat a licensee as acting on his or her
own behalf if the licensee is acting on behalf of a business entity controlled
by the licensee or in which the licensee is more than a 10% owner. The amendment
would ensure that licensees who either control the entity acting as a party
to the contract or have a material stake in the transaction disclose their
status as licensees so as to prevent advantage being taken by reason of their
position and expertise.
The amendment to §535.145 concerns false promises by a licensee, which
are a basis for disciplinary action under Texas Civil Statutes, Article 6573a
(the Act), §15(a)(6)(B). The amendment would clarify that it is not necessary
for a party to a real estate transaction to have relied upon a false promise
made by a licensee for TREC to discipline the licensee. While reliance or
lack of reliance upon the promise may be considered in determining the appropriate
discipline, the Act does not require proof of reliance to establish grounds
for disciplinary action. Adoption of the amendment would ensure that the section
is consistent with the Act.
The amendment to §535.146 would provide a definition of the term "trust
account" consistent with the Act, and require a licensee maintaining a trust
account to retain a documentary record of each deposit or withdrawal from
the account for a period of four years. TREC is authorized by the Act to initiate
investigations of complaints concerning a licensee's conduct within four years
after the transaction, and this change would ensure that pertinent records
would be available if needed to resolve a complaint. Other changes to the
section would require a licensee to remove money belonging to the licensee
from a trust account within 30 days after the licensee acquires ownership
of the money in the account, regardless of the reason the licensee acquires
ownership of the money. Nonsubstantive changes also are proposed in order
to make the section easier to read.
The amendment to §535.147 addresses the splitting of fees with an
unlicensed person, which is prohibited by the Act. The amendment would clarify
that the Act is not violated in this regard if the licensee pays a portion
of the licensee's fee to a party in the transaction, since the Act does not
require a person to be licensed as a real estate broker or salesperson to
act as a principal in a transaction. The amendment would require the licensee
who intends to pay a portion of the licensee's fee to a party the licensee
does not represent in the transaction to obtain the consent of the party represented
by the licensee before making the payment. This change would incorporate into
the section the common law rules that, as a fiduciary, a real estate licensee
is charged with the responsibility of acting in the best interests of the
licensee's principal and not acting on the behalf of an adverse party without
the principal's consent.
New §535.148 concerns a licensee's acceptance of an undisclosed commission
or rebate. The new section would prohibit a licensee from receiving a commission,
rebate, or fee in a transaction from a person other than the person the licensee
represents without first disclosing the licensee's intention to all parties
and obtaining the consent of all parties. The section would implement the
Act, §15(a)(6)(H), which authorizes disciplinary action against licensees
who accept, receive, or charge an undisclosed commission or rebate and §15(a)(D),
which authorizes disciplinary action against licensees who fail to make it
clear for whom they are acting or who receive compensation from more than
one party except with the knowledge and consent of all parties. The amended
section would also be consistent with the common rule that an agent must deal
fairly with his principal in all matters related to the transaction between
them.
The amendment to §535.154 would clarify that communications from a
licensee to a member of the public are not advertisements subject to statutory
disclosure requirements if the communication is made after the member of the
public has signed a written agreement for the licensee to provide services.
The Act, §15(a)(6)(P), authorizes disciplinary action against a licensee
who fails to disclose that the licensee is acting as a real estate broker
or agent in an advertisement. If the licensee has entered into a written agreement
to represent a consumer, the consumer would no longer need to be notified
of the capacity in which the licensee is acting. In the absence of such an
agreement, it may not be clear to the member of the public that the communication
is from a licensee. The amendment also clarifies that any advertisement that
does not readily identify the licensee as a real estate agent must include
an additional designation such as "agent" or "broker." The amendment deletes
as unnecessary a provision that encouraged licensees to use a broker's name
first in a business name including the name of a salesperson. Finally, the
amendment addresses advertisements which offer a rebate of the licensee's
commission or which promote the use of a service provider with an expectation
that the licensee will be paid by the service provider. In such cases, the
licensee would be required to include disclosures in the advertisement that
payment of the rebate is subject to the consent of the person the licensee
represents in the transaction, and that the payment of the rebate is subject
to restrictions if use of a specific service provider is required to receive
the rebate. The amendment also would require the licensee to disclose in the
advertisement that the licensee may receive compensation from the service
provider.
The amendment to §535.156 revises the section to require a licensee
to provide information to a principal considering whether to make an offer,
as well as to a principal considering whether or not to accept or reject an
offer. If the principal is a buyer, or a seller who is initiating the negotiations,
it would be consistent also to require information to be provided to that
principal relative to the making of an offer. The amendment also would make
the section consistent with current industry practice of obtaining written
consent from a principal if the licensee is not to submit an offer to the
principal after the principal has accepted an offer to buy, sell, rent or
lease the property.
The amendment to §535.159 clarifies that a person depositing funds
with a broker may authorize the broker in writing to retain any interest on
the deposited funds. In the absence of a written agreement, the section would
continue to require the person who deposited the funds to receive any interest
earned on the funds. The amendment could relieve the broker of accounting
for nominal amounts of interest earned on small deposits or deposits held
for short periods of time, while ensuring that the owner of the funds would
have to consent for the broker to retain any accrued interest.
Mark A. Moseley, general counsel, has determined that for the first five-year
period the sections are in effect there will be no fiscal implications for
the state or for units of local government as a result of enforcing or administering
the sections. There is no anticipated impact on small businesses, micro businesses
or local or state employment as a result of implementing the sections.
Mr. Moseley also has determined that for each year of the first five years
the sections as proposed are in effect the public benefit anticipated as a
result of enforcing the sections will be a simplified process for accrediting
existing schools. There is no anticipated economic cost to persons who are
required to comply with the proposed sections.
Comments on the proposal may be submitted to Mark A. Moseley, General Counsel,
Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188.
The amendments are proposed 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.
The statute which is affected by this proposal is Texas Civil Statutes,
Article 6573a.
§535.141.Initiation of Investigation; Compliance with Orders.
(a)
If the Texas Real Estate Commission
(the commission)
receives a complaint, and such complaint on its face alleges a possible
violation of the Real Estate License Act,
Texas Civil Statutes, Article
6573a, (the Act),
the
commission
[
(b)
The commission, on its own motion, with reasonable cause,
may initiate an investigation of the actions and records of a
licensee
[
(c) - (d)
(No change.)
(e)
Once a complaint has been filed with the commission, the
commission has jurisdiction to consider, investigate and take action based
on the complaint.
If information obtained in the course of an investigation
provides the commission with reasonable cause to believe that a licensee other
than the licensee named in the complaint has engaged in a violation of the
Act or a rule of the commission, the commission shall promptly notify the
licensee that the licensee has been added as a respondent in the investigation
of the complaint and shall provide the licensee with a copy of the complaint.
Complaints may be withdrawn only with the consent of the commission.
(f)
(No change.)
(g)
If the commission suspends or revokes a license or
registration
[
(h)
A person whose license or
registration
[
(1)
perform or attempt to perform any act for which a license
or
registration
[
(2)
unless instructed otherwise by the principals to the
transaction, continue to hold any funds received in a real estate transaction
in which the person acted as a real estate broker or salesperson.
(i) - (j)
( No change.)
§535.143.Fraudulent Procurement of License.
[
A violation of the Act, §15(a)(2), occurs
if an applicant for licensure for the applicant or a salesperson
omits
material information or
makes material misstatements, written or oral,
in connection with the filing of an application to obtain licensure. This
does not include an unintentional mistake of fact; however, a broker submitting
an application as sponsor of a proposed salesperson has an affirmative duty
to ascertain that all information called for in the application is given and
is true, correct and complete, whether the application is filled out by the
broker or the prospective salesperson.
[
§535.144.When acquiring or disposing of own property.
A licensee, when engaging in a real estate transaction on his or her
own behalf,
or on behalf of a business entity controlled by the license
or in which the licensee is more than a 10% owner,
is obligated to inform
any person with whom the licensee deals that he or she is a licensed real
estate broker or salesperson acting on his or her own behalf either by disclosure
in any contract of sale or rental agreement, or by disclosure in any other
writing given prior to entering into any contract of sales or rental agreement.
A licensee shall not use the licensee's expertise to the disadvantage of a
person with whom the licensee deals.
§535.145.False promise.
"False promise" includes both oral and written promises. The fact that
a written contract between the parties to a real estate transaction does not
recite a promise made by a real estate licensee to one of the parties
or that a person did not detrimentally rely on the false promise
will
not prevent the commission from determining that a false promise was made.
When deciding whether this section has been violated, neither a written contractual
provision disclaiming oral representations nor the parol evidence rule shall
prevent the commission from considering oral promises made by a licensee.
§535.146.Failure to Properly Account for Money; Commingling.
(a)
For the purposes of this section, "trust
account" includes any trust, escrow, custodial, property management account
, or other account in which a licensee holds money on behalf of another person.
(b)
[
(c)
[
(d)
[
(e)
[
(f)
[
(g)
[
(h)
[
§535.147.Splitting Fee with Unlicensed Person.
(a)
"Any other state" means the states, territories, and possessions
of the United States and any foreign country or governmental subdivision thereof.
(b)
"Commission or fees" includes any form of compensation
received for
engaging in an act for which a license is required by Texas
Civil Statutes, Article 6573a
[
(c)
It is not a violation of this section for a licensee
to pay a portion of the licensee's fee or commission to a party in the transaction.
A licensee who intends to pay a portion of the licensee's fee or commission
to a party the licensee does not represent must obtain the consent of the
party represented by the licensee prior to making the payment.
[
§535.148.Receiving an Undisclosed Commission or Rebate.
A licensee may not receive a commission, rebate, or fee in a transaction
from a person other than the person the licensee represents without first
disclosing to all parties to the transaction that the licensee intends to
receive the commission, rebate or fee, and obtaining the consent of all parties.
§535.154.Misleading Advertising.
(a)
For the purposes of this section, an "advertisement" is
a written or oral statement which induces or attempts to induce a member of
the public to use the services of a real estate licensee. The term "advertisement"
includes, but is not limited to all publications, radio or television broadcasts,
all electronic media including E-mail and the Internet, business stationary,
business cards, signs and billboards. The provisions of this section apply
to all advertisements by a real estate licensee unless the context of a particular
provision indicates that it is intended to apply to a specific form of advertisement.
Provided, however, a communication from a licensee to a member of the public
after the member of the public has
signed a written agreement
[
(b) - (c)
(No change.)
(d)
[
(e)
(No change.)
(f)
[
(g) - (j)
(No change.)
(k)
An advertisement containing an offer to
rebate to a principal a portion of a licensee's commission must disclose that
payment of the rebate is subject to the consent of the party the licensee
represents in the transaction . If payment of the rebate is contingent upon
a party's use of a selected service provider, the advertisement also must
contain a disclosure that payment of the rebate is subject to restrictions.
If the advertisement offers, recommends or promotes the use of services of
a real estate service provider other than the licensee and the licensee expects
to receive compensation if a party uses those services, the advertisement
must contain a disclosure that the licensee may receive compensation from
the service provider.
§535.156.Dishonesty; Bad Faith; Untrustworthiness.
(a)
A licensee's relationship with the licensee's principal
is that of a fiduciary. A licensee shall convey to the principal all known
information which would affect the principal's decision on whether or not
to
make,
accept or reject offers; however,
if the principal
has agreed in writing that offers are not to be submitted after the principal
has entered into a contract to buy, sell, rent, or lease a property
the licensee shall have no duty to submit offers to the principal after the
principal has accepted an offer.
(b) - (d)
(No change.)
§535.159.Failing to Properly Deposit Escrow Monies.
(a) - (d)
(No change.)
(e)
It is permissible for a broker to establish a savings account
as an escrow account, provided said funds may be withdrawn at the appropriate
time for disbursal.
In the absence of an agreement to the contrary signed
by the person depositing the funds with the broker, any
[
(f) - (k)
(No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State, on May 12, 2000.
TRD-200003342
Mark A. Moseley
General Counsel
Texas Real Estate Commission
Earliest possible date of adoption: June 25, 2000
For further information, please call: (512) 465-3900
22 TAC §§535.148, 535.150 - 535.152, 535.155, 535.157, 535.158
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Real Estate Commission or in the Texas Register office, Room
245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Texas Real Estate Commission (TREC) proposes
the repeal of §§535.148, 535.150-535.152, 535.155, 535.157, 535.158,
concerning various grounds for disciplinary action against real estate brokers
and salespersons. The repeals are proposed as part of TREC's on-going review
of its rules. The affected sections merely restate various provisions of Texas
Civil Statutes, Article 6573a, and are unnecessary. Repeal of the sections
would reduce the number of TREC rules and place appropriate emphasis on the
law governing the conduct of real estate licensees.
Mark A. Moseley, general counsel, has determined that for the first five-year
period the sections are in effect there will be no fiscal implications for
the state or for units of local government as a result of enforcing or administering
the repeals. There is no anticipated impact on small businesses, micro businesses
or local or state employment as a result of implementing the repeals.
Mr. Moseley also has determined that for each year of the first five years
the repeals as proposed are in effect the public benefit anticipated as a
result of enforcing the repeals will be the elimination of unnecessary rules.
There is no anticipated economic cost to persons who are required to comply
with the proposed repeals.
Comments on the proposal may be submitted to Mark A. Moseley, General Counsel,
Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188.
The repeals are proposed 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.
The statute which is affected by this proposal is Texas Civil Statutes,
Article 6573a.
§535.148.Failing to Specify Date of Termination of Listing Contract or Other Contract for Services.
§535.150.Acting in Dual Capacity.
§535.151.Guaranteeing Profits.
§535.152.Offering Property without Owner's Consent.
§535.155.Associating with Unlicensed Person; Conspiring to Violate Act.
§535.157.Negligence; Incompetence.
§535.158.Violation of Act.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State, on May 12, 2000.
TRD-200003343
Mark A. Moseley
General Counsel
Texas Real Estate Commission
Earliest possible date of adoption: June 25, 2000
For further information, please call: (512) 465-3900
22 TAC §535.191, §535.192
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Real Estate Commission or in the Texas Register office, Room
245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Texas Real Estate Commission (TREC) proposes
the repeal of §535.191, concerning prerequisites for filing a suit for
a commission, and §535.192, concerning the requirement for a written
agreement to file a suit for a commission. The repeals are proposed as part
of TREC's on-going review of its rules. The affected sections merely restate
provisions of Texas Civil Statutes, Article 6573a, and are unnecessary. Repeal
of the sections would reduce the number of TREC rules and place appropriate
emphasis on the law governing the conduct of real estate licensees.
Mark A. Moseley, general counsel, has determined that for the first five-year
period the sections are in effect there will be no fiscal implications for
the state or for units of local government as a result of enforcing or administering
the repeals. There is no anticipated impact on small businesses, micro businesses
or local or state employment as a result of implementing the repeals.
Mr. Moseley also has determined that for each year of the first five years
the repeals as proposed are in effect the public benefit anticipated as a
result of enforcing the repeals will be the elimination of unnecessary rules.
There is no anticipated economic cost to persons who are required to comply
with the proposed repeals.
Comments on the proposal may be submitted to Mark A. Moseley, General Counsel,
Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188.
The repeals are proposed 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.
The statute which is affected by this proposal is Texas Civil Statutes,
Article 6573a.
§535.191.Prerequisites.
§535.192.Written Agreement Required.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State, on May 12, 2000.
TRD-200003344
Mark A. Moseley
General Counsel
Texas Real Estate Commission
Earliest possible date of adoption: June 25, 2000
For further information, please call: (512) 465-3900
Chapter 711.
DIETITIANS
The Texas State Board of Examiners of Dietitians (board) proposes
amendments to §§711.1 - 711.14, 711.16, 711.17, and §711.19;
the repeal of §711.15 and new §711.15 relating to the licensing
and regulation of dietitians.
The amendments cover definitions, the board's operation, the profession
of dietetics, academic requirements for licensure, experience requirements
for examination, examinations for dietitian licensure, application procedures,
determination of eligibility, provisionally licensed dietitians, licensing,
changes of name or address, license renewal, licensing of persons with criminal
backgrounds to be licensed and provisionally licensed dietitians, violations,
complaints and subsequent board actions, inactive status, continuing education
requirements and informal disposition. The repeal and new section cover formal
hearings.
The Appropriations Act of 1997, House Bill 1, Article IX, §167 (§167)
requires that each state agency review and consider for readoption each rule
adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative
Procedure Act). Such reviews shall include, at a minimum, an assessment by
the agency as to whether the reason for adopting or readopting the rules continues
to exist. Sections 711.18, 711.20 and §711.21 are simultaneously proposed
for readoption without changes to the existing rules. These sections cover
temporary license, default orders, and suspension of license for failure to
pay child support.
The board published a Notice of Intention to Review the sections as required
by Rider 167 in the February 12, 1999, issue of the
Texas Register
(24 TexReg 999). No comments were received regarding
this notice that was published.
The board held workshops to conduct a preliminary review of its rules.
As a result of these workshops, the board is amending its existing rules located
at 22 Texas Administrative Code (TAC) Chapter 711 to; (1) satisfy the requirements
of §167; (2) delete language no longer needed; (3) update existing rules
to reflect changes in the names of organizations and changes in the profession;
(4) add two new fees; (5) eliminate descrepencies so the terms used in the
rules agree with the Licensed Dietitian Act; (6) amend rules according to
changes pursuant to the codification of the Licensed Dietitian Act in the
new Texas Occupations Code, Chapter 701 (House Bill 3155, 76th Texas Legislature,
Regular Session, 1999); (7) delete duplicative language and clarify, reorganize
and simplify the rules; (8) update and strengthen the code of ethics, emulating
that of the Commission on Dietetic Registration, as applicable to current
methods and standards by which nutrition services are provided to the public;
(9) and make typographical corrections.
Ms. Donna Flippin, Executive Secretary, has determined, that for each year
of the first five-year period the sections as proposed are in effect, fiscal
implications will result from the enforcement or administration of the sections
proposed. The effect on state government will be an estimated increase in
revenue to the state of approximately $500 per year. No fiscal implications
will be incurred by local government.
Ms. Flippin has also determined, that for each year of the first five years
the sections as proposed are in effect, the public benefit anticipated as
a result of the amendments, repeal and new rules will be the elimination of
duplicative rules, the clarification of existing rules, and the updating of
rules that will apply to current practice. Furthermore, public benefit is
anticipated as a result of enforcing the sections as proposed to assure the
appropriate regulation of dietitians and continue to identify competent dietitians.
There will be no effect on small businesses or micro businesses. No fee increases
are proposed. Two new fees, for written verifications and returned checks,
are proposed and should have no effect for small or micro businesses. No new
requirements are proposed upon licensed or provisionally licensed dietitians
which would result in a business expense. There are no anticipated economic
costs to persons who are required to comply with the sections as proposed,
except for those persons who request written verifications or submit returned
checks for licensure fees. There is no anticipated impact on local employment.
Ms. Flippin has also determined, that for each year of the first five years
the proposed sections are in effect, since there should be no effect on a
local economy, local employment impact statement is required under Administrative
Procedure Act, §2001.022.
Written comments on the proposed amendments, repeal, new section and readoption
may be submitted in writing to Donna Flippin, Executive Secretary, Texas State
Board of Examiners of Dietitians, 1100 W. 49th Street, Austin, Texas 78756-3183,
phone: (512) 834-6601. Comments will be accepted for 30 days after publication
of this notice in the
Texas Register
.
General changes to rule language:
Citations to the Licensed Dietitian Act have been updated to conform to
the Texas Occupations Code throughout the sections. As unnecessary wording
has been deleted and sections have been simplified or updated, sections of
the rules have been changed to reflect the new section designations. Some
text has been proposed for deletion as unnecessary because the dates in the
text no longer apply due to the passage of time. The amendments also correct
typographical errors.
The board invites specific comments regarding the costs associated with
and the benefits that will be gained by the implementation of the proposed
amendments. The board also invites specific comments regarding the §167
requirement as to whether the reason for adopting amendments or readopting
the rule continues to exist.
of their submitted renewal application, fees, and CEUs,
]
the licensee
may restore the license by complying with the requirements
as follow.
[
is subject to fees as follows.
]
a person's
] license has been
expired for 90 days or less, the
licensee must submit
[
person
may renew the license by paying
] to the executive council the required
renewal fee and a restoration fee that is one-half of the
renewal
[
examination
] fee for the license.
The licensee must also
comply with all renewal requirements set by §341.1 of this title (relating
to License renewal).
a person's
] license
has been expired for more than 90 days but less than one year, the
licensee
must submit
[
person may renew the license by paying
] to the
executive council
the required renewal fee
[
all unpaid renewal
fees
] and a restoration fee that is equal to the
renewal
[
examination
] fee for the license.
The licensee must also
comply with all renewal requirements set by §341.1 of this title (relating
to License renewal).
a person's
] license
has been expired for one year or more,
and the licensee has not maintained
licensure in another state as provided in paragraph (4) of this subsection,
the license may not be renewed.
[
the person may not renew the license.
]
To
[
The person may
] obtain a new license
, the licensee must take and pass the national examination again and comply
[
by submitting to reexamination and complying
] with the
requirements and procedures for obtaining an original license
set by §329.1
of this title (relating to General licensure procedure)
. [
However,
the board may renew without examination an expired license of a person who
was licensed in this state, moved to another state, and is currently licensed
and has been in practice in the other state for the two years preceding application.
If the board no longer retains manual files on the person, the person must
resubmit an application in accordance with §329.6(b) of this title (relating
to Licensure of Persons Currently Licensed in Other States, the District of
Columbia, or Territories of the United States) and provide appropriate documentation
and proof of current licensure in another state for the two-year period. The
person must pay to the executive council a fee that is equal to the examination
fee for the license. If a new application must be submitted, the board requires
additionally the submission of an application fee. The person must pay to
the executive council a fee that is equal to the examination fee for the license.
]
A licensee who is not actively engaged in
the practice of physical therapy in the state may request in writing a change
to inactive status, to be effective on the next license renewal date. On or
by that date, the licensee must submit to the board a written request to be
placed on inactive status. A completed inactive status application must be
received by the board no later than one month after the expiration date of
the license.
]
(2)
A licensee may remain on inactive
status for no more than six consecutive years (three renewal periods). A licensee
may petition the board in writing for an extension of inactive status for
more than six years.
]
(3)
] A licensee on inactive
status must notify the board by the end of each renewal period of his/her
intention to remain on inactive status.
If
[
A fee equal to
that for late renewal will be charged if
] the licensee does not notify
the board prior to the
license expiration date, the inactive licensee
is subject to late renewal fees as adopted by the executive council.
[
expiration of the license.
]
for display purposes
]. To return to active status, a licensee must submit
the following listed in paragraphs (1) - (4) of this subsection:
the Inactive to Active Status reinstatement fee
];
re-instatement
] application; and
for the continuing education requirements
]
listed in subparagraphs (A) - (C) of this paragraph:
Part 23.
TEXAS REAL ESTATE COMMISSION
commission
] with
persons licensed as brokers in other states, but all negotiations
physically
conducted
within Texas must be handled by Texas licensees.
The
] word "state" refers to the states, territories, and possessions of
the United States and any foreign country or governmental subdivision thereof.
, provided that
such unlicensed
] person
engages in no acts for which a license
is required
[
performs none of the activities of a real estate agent
] and
does not lead
the public [
is not led
] to
believe that
the
[
such unlicensed
] person is in the
real estate brokerage business.
the activity of a real estate agent
], the person is not required to
be licensed and may share in the income earned by the partnership or corporation.
A
] corporation chartered in a state
other than Texas may
apply for a Texas real estate broker license if
the entity meets one of the following requirements.
obtain Texas broker licensure,
but to be eligible to apply for same it must be licensed as a real estate
broker by the state of its incorporation or by a state in which it is permitted
to engage in real estate brokerage business as a foreign corporation and must
designate an officer to act for it who meets the requirements of §6(c);
provided, however, that the designated officer is not required to be a resident
of Texas. A corporation which is not licensed in the state of its incorporation
may also apply for Texas licensure upon proof that such state does not license
corporations as brokers and that the corporation
] is lawfully engaged
in the practice of real estate brokerage in another state and meets all other
requirements for applications for
a license in
Texas [
licensure
].
would not be
] required to maintain
an office in Texas unless the individual
sponsors
[
wished
to sponsor
] a salesperson in this state.
A foreign limited liability company
organized under the laws of another state may apply for a Texas real estate
broker license if it meets the following requirements.
]
(1)
If the state of its organization licenses
limited liability companies, it is licensed as a real estate broker by that
state.
]
(2)
If the state of its organization
does not license limited liability companies, it is lawfully engaged in the
real estate brokerage business in that or another state.
]
(3)
The designated manager of the foreign
limited liability company is licensed as an active Texas real estate broker.
]
(f)
Foreign corporations and limited liability
companies must be permitted to engage in business in this state to receive
a Texas real estate broker license.
]
Subchapter N. SUSPENSION AND REVOCATION OF LICENSURE
Texas Real Estate
Commission
] shall investigate the complaint.
As used in this section,
the term "licensee" includes a person registered as an easement or right-of-way
agent and the term "license" includes a registration issued by the commission.
real estate broker or real estate salesperson
].
certification
] or probates an order of suspension
or revocation against a licensee or holder of a
registration
certificate
issued by the commission, the commission may monitor compliance with its order
and initiate action based on the authority of the original complaint or original
authorization by the members of the commission.
certification
] has been suspended may not during the period of any suspension:
certification
] is required by law or
commission rule; or
(a)
]
(b)
A violation of the Act, §15(a)(2),
occurs if pertinent information is omitted from an application, and that omission
causes the application to be inaccurate in any material particular.
]
(a)
]
A licensee maintaining
a trust account shall retain for a period of four years a documentary record
of each deposit or withdrawal from the account.
[
Licensees are
not required to act as escrow agents or to accept money belonging to others.
]
(b)
] If a licensee accepts money
belonging to others, the licensee holds such money in a fiduciary capacity.
If any or all of the parties to a real estate transaction make demand for
the money, the licensee must, within a reasonable time, properly account for
or remit the money. "Reasonable time" means
within
30 days after
demand is made for an accounting or for remittance of money belonging to others.
(c)
] "Properly account for or remit"
means to pay the money to the party or parties entitled to the money if it
can be reasonably determined to which party or parties the money should be
paid. A licensee may pay the money into the registry of a court and interplead
the parties if it cannot be reasonably determined to which party or parties
the money should be paid.
(d)
] If, by written agreement of
the parties to the real estate transaction, the licensee holding money belonging
to others has the right to require the receipt, release and authorization
in writing from all parties before paying the money to any party or parties,
and if the licensee chooses to exercise that right, "properly account for
or remit" means to furnish every party with a written statement requesting
such receipt, release and authorization and detailing the amount and place
of custody of the money and to pay the money to the party or parties in accordance
with the receipts, releases and authorizations, if obtained. A licensee may
pay the money into the registry of a court and interplead the parties if the
receipts, releases and authorizations that the licensee has the right to require
cannot be obtained.
(e)
] If escrow or other money belonging
to another is held by a licensee, it must be maintained in a trust account.
Placing such money in a licensee's operating account constitutes commingling.
(f)
] If [
, by virtue of closing
a sales transaction, or by virtue of default of one of the parties,
]
a licensee acquires ownership of money in the licensee's
trust
[
escrow
] account that was originally held in trust for another,
such money must be removed from the
trust
[
escrow
] account
within a reasonable time. "Reasonable time" in this context means within 30
days after the licensee acquires ownership of the money.
(g)
] Paying operating expenses or
making withdrawals from a broker's
trust
[
escrow
] account
for any purpose other than proper disbursement of [
escrow
] money
held in trust
is prima facie evidence of commingling money held in trust
with the broker's own funds.
services as a real estate agent
].
"Services as a real estate agent" refers to the acts of a "real estate broker"
as enumerated in §2(2)(A-J) and §2(3), when those acts are performed
for another and for compensation.
]
agreed
] for the licensee to provide services is not an advertisement
for the purposes of this section
If a broker advertises under an assumed name, and
that assumed name
]
In any advertisement placed by a licensee that
does not readily identify the
licensee
[
broker
]
as a real estate agent, the [
broker's
] advertisement must include
an additional designation such as "agent," "broker" or a trade association
name which serves clearly to identify the advertiser as a real estate agent.
Where a business name includes the name of a licensed
salesperson as well as a licensed broker, the broker's name should appear
first to avoid the possibility that the public would be misled to believe
that the salesperson is a broker; provided, however, that
]
A
[
a
] corporation or limited liability company licensed as a real
estate broker may do business in the name in which it was chartered or registered
by the Secretary of State.
Any
]
interest earned on a savings account must be distributed to the person or
persons who are the equitable owners of the funds during the time the interest
is earned.
Subchapter Q. SUIT FOR COMPENSATION
Part 31.
TEXAS STATE BOARD OF EXAMINERS OF DIETITIANS