TITLE 16.ECONOMIC REGULATION

Part 4. TEXAS DEPARTMENT OF LICENSING AND REGULATION

Chapter 60. TEXAS COMMISSION OF LICENSING AND REGULATION

Subchapter A. AUTHORITY AND RESPONSIBILITIES

16 TAC §60.10

The Texas Department of Licensing and Regulation proposes amendments to §§60.10 concerning the Texas Commission of Licensing and Regulation.

These rules are necessary to implement statutory changes to Title 2, Texas Occupations Code, Chapter 51. The statutory changes to Chapter 51 were enacted by Acts of the 77th Legislature; HB 1214. The proposed rules related to HB 1214, §41(b) define "Commissioner" as being the Executive Director of the Texas Department of Licensing and Regulation and define the "Executive Director" as being the Commissioner of the Texas Department of Licensing and Regulation.

Michael Chisum, General Counsel and Director of Legal Services of the Texas Department of Licensing and Regulation, has determined that for the first five-year period these sections are in effect there will be no fiscal implications as a result of enforcing or administering the proposed revised rules. There also will be no fiscal implications on local government.

Mr. Chisum also has determined that for each year of the first five years the sections are in effect, there will be no direct benefit to the public, nor is there any cost to the public. This is due to the fact that the proposed amendments are only for the purpose of modification of the definition of commissioner.

There is no anticipated economic effect on small businesses and persons who are required to comply with the revised rules as proposed.

Comments on the proposal may be submitted to Michael Chisum, General Counsel and Director of Legal Services, Texas Department of Licensing and Regulation, P. O. Box 12157, Austin, Texas 78711, facsimile (512) 475-2872, or by e-mail: michael.chisum@license.state.tx.us. The deadline for comments is thirty days after publication in the Texas Register .

The amendments are proposed under Texas Occupations Code, Chapter 51, §51.203. The Department interprets §51.203 as authorizing the Executive Director to adopt rules as necessary to implement this chapter and any other law establishing a program regulated by the Department. The Department interprets §41(b) of HB 1214, Acts of the 77th Texas Legislature, as authorizing the Executive Director of the Texas Department of Licensing and Regulation to promulgate and enforce a code of rules and take all action necessary to assure compliance with the intent and purpose of Chapter 51.

The statutory provisions affected by the proposed amendments related to HB 1214 are Texas Occupations Code, Chapter 51, §§51.001. No other statutes, articles, or codes are affected by the proposed amendments.

§60.10.Definitions.

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

(1) - (4) (No Changes).

(5) Commissioner--As used in any statute or rule assigned to the Texas Department of Licensing and Regulation, means the Chief Executive Officer, whose statutory title is Executive Director; therefore, "Commissioner" and "Executive Director" have the same meaning.

(6) [ (5) ] Complainant--Any person who has filed a complaint with the Department against any person whose activities are subject to the jurisdiction of the Department.

(7) [ (6) ] Contested case or proceeding--A proceeding in which the legal rights, duties, or privileges of a party are to be determined by the Department after an opportunity for adjudicative hearing.

(8) Executive Director--as used in any statute or rule assigned to the Texas Department of Licensing and Regulation, means the Chief Executive Officer, whose position title is Commissioner; therefore, "Commissioner" and "Executive Director" have the same meaning.

(9) [ (7) ] Final decision maker--The Commission and/or the Executive Director, both of whom are authorized by law to render the final decision in a contested case.

(10) [ (8) ] Hearings Examiner, Examiner, Administrative Law Judge--A person appointed by the Executive Director to conduct hearings in contested cases.

(11) [ (9) ] License--The whole or part of any Departmental registration, license, Commission, certificate of authority, approval, permit, endorsement, title or similar form of permission required or permitted by law.

(12) [ (10) ] Party--A person admitted to participate in a case before the final decision maker.

(13) [ (11) ] Person--any individual, partnership, corporation, or other legal entity, including a state agency or governmental subdivision.

(14) [ (12) ] Pleading--A written document submitted by a party, or a person seeking to participate in a case as a party, which requests procedural or substantive relief, makes claims, alleges facts, makes legal argument, or otherwise addresses matters involved in the case.

(15) [ (13) ] Respondent--Any person, licensed or unlicensed, who has been charged with violating a law establishing a regulatory program administered by the Department or a rule or order issued by the Commission or the Executive Director.

(16) [ (14) ] Rule--Any Departmental statement of general applicability that implements, interprets, or prescribes law or policy, or describes the procedure or practice requirements of the Department and is filed with the Texas Register.

(17) [ (15) ] T.R.C.P.--Texas Rules of Civil Procedure

(18) [ (16) ] U.S.P.S.--United States Postal Service.

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 20, 2001.

TRD-200104188

William H. Kuntz, Jr.

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: September 2, 2001

For further information, please call: (512) 463-7348


Chapter 68. ARCHITECTURAL BARRIERS

The Texas Department of Licensing and Regulation proposes the repeal of 16 Texas Administrative Code §§68.1, 68.10, 68.20, 68.21, 68.30, 68.31, 68.33, 68.60, 68.61, 68.62, 68.63, 68.64, 68.65, 68.66, 68.70, 68.90, 68.93, 68.100, 68.101 and new §§68.1, 68.10, 68.20, 68.30, 68.31, 68.50, 68.51, 68.52, 68.53, 68.54, 68.65, 68.70, 68.75, 68.76, 68,79, 68.90, 68.93, 68.100 and 68.101, concerning architectural barriers. The new rules rearrange, consolidate, and revise existing language for clarification.

These rules are also necessary to implement a new regulatory program and other statutory changes in Title 132, Texas Civil Statutes, Chapter 20, Article 9102, Architectural Barriers Act. Article 9102 was amended by Acts of the 77th Legislature; SB 484 and HB 1214. The proposed rules related to SB 484: describe the buildings and facilities subject to compliance with the Texas Accessibility Standards, provide certain exemptions to compliance, and establish procedures for requesting a variance to waive compliance on specific items; establish procedures for the accessibility review of construction documents and for the inspection of subject buildings and facilities following construction or renovation, require corrective modifications following an inspection that finds items not in compliance, and provide for the issuance of notices evidencing full compliance; establish procedures related to an advisory committee; establish minimum qualifications for issuance of a certificate of registration for individuals who will perform the agency's plan review and inspection functions, and establish certain responsibilities and standards of conduct for these individuals, who will be known as "registered accessibility specialists"; apply the same minimum qualifications, responsibilities and standards of conduct to representatives of state agencies and political subdivisions who may contract with the Department to perform its plan review and inspection functions, except as may otherwise be provided in their contracts; provide for the investigation of complaints filed against registered accessibility specialists and against owners of subject buildings or facilities, and for the assessment of administrative penalties or sanctions when violations are found; adopt the Texas Accessibility Standards, provide for the Department's publication of technical memoranda related to those standards, and establish special standards for state leased buildings or facilities.

The proposed rules related to HB 1214 define "Commissioner" as being the Executive Director of the Texas Department of Licensing and Regulation and define the "Executive Director" as being the Commissioner of the Texas Department of Licensing and Regulation.

George Ferrie, Director of Code Review and Inspections, of the Texas Department of Licensing and Regulation, has determined that for the first five-year period these sections are in effect, there will be no fiscal implications until fee rules are proposed and adopted by the Department. The Department anticipates proposing the fee rules in the very near future.

Mr. Ferrie also has determined that for each year of the first five years the sections are in effect, the public benefit as a result of enforcing the section should be an increase in the level of accessibility in new and renovated buildings and facilities in the state. An increase in general revenue to the Department is also anticipated, which should help the Department increase its enforcement and regulatory efforts.

The Department does not anticipate an economic effect on small businesses and persons who are required to comply with the sections as proposed until it proposes and adopts fee rules. The Department anticipates proposing and adopting fee rules in the very near future.

Comments on the proposal may be submitted to George Ferrie, Director of Code Review and Inspections, Texas Department of Licensing and Regulation, P. O. Box 12157, Austin, Texas 78711, facsimile (512) 475-2872, or by e-mail: george.ferrie@license.state.tx.us. The deadline for comments is thirty days after publication in the Texas Register .

16 TAC §§68.1, 68.10, 68.20, 68.21, 68.30, 68.31, 68.33, 68.60 - 68.66, 68.70, 68.90, 68.93, 68.100, 68.101

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

The repeal is proposed under Texas Occupations Code, Chapter 51, §51.203, Texas Civil Statutes, Article 9102, §§5 and 5A, Acts of the 77th Legislature, SB 484, §5(b), and Acts of the 77th Texas Legislature, HB 1214, §41(b). The Department interprets §51.203 as authorizing the Executive Director to adopt rules as necessary to implement this chapter and any other law establishing a program regulated by the Department. The Department interprets §§5 and 5A of Article 9102, §5(b) of SB 484, and §41(b) of HB 1214, as authorizing the Executive Director of the Texas Department of Licensing and Regulation to promulgate and enforce a code of rules and take all action necessary to assure compliance with the intent and purpose of Article 9102.

The statutory provisions affected by the repeal are Texas Civil Statutes, Article 9102, and Texas Occupations Code, Chapter 51. No other statutes, articles, or codes are affected by the repeal.

§68.1.Authority.

§68.10.Definitions.

§68.20.Registration -- Submittal of Constructions Documents.

§68.21.Registration -- Subject Buildings and Facilities.

§68.30.Exemptions.

§68.31.Variance Procedures.

§68.33.Technical Deviation -- State Leased Facilities.

§68.60.Review of Construction Documents.

§68.61.Resubmittals.

§68.62.Inspections

§68.63.Corrective Modifications.

§68.64.Certificates and Approvals.

§68.65.Advisory Committee.

§68.66.Contract Providers.

§68.70.Responsibilities of the Registrant -- Construction Document Submittals.

§68.90.Sanctions -- Administrative Sanctions or Penalties.

§68.93.Complaints and Investigations.

§68.100.Technical Standards and Technical Memoranda.

§68.101.State Leases (Initial or Renewed).

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 20, 2001.

TRD-200104189

William H. Kuntz, Jr.

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: September 2, 2001

For further information, please call: (512) 463-7348


16 TAC §§68.1, 68.10, 68.20, 68.30, 68.31, 68.50 - 68.54, 68.65, 68.70, 68.75, 68.76, 68.79, 68.90, 68.93, 68.100, 68.101

The new rules are proposed under Texas Occupations Code, Chapter 51, §51.203, Texas Civil Statutes, Article 9102, §§5 and 5A, Acts of the 77th Legislature, SB 484, §5(b), and Acts of the 77th Texas Legislature, HB 1214, §41(b). The Department interprets §51.203 as authorizing the Executive Director to adopt rules as necessary to implement this chapter and any other law establishing a program regulated by the Department. The Department interprets §§5 and 5A of Article 9102, §5(b) of SB 484, and §41(b) of HB 1214, as authorizing the Executive Director of the Texas Department of Licensing and Regulation to promulgate and enforce a code of rules and take all action necessary to assure compliance with the intent and purpose of Article 9102.

The statutory provisions affected by the new rules are Texas Civil Statutes, Article 9102, and Texas Occupations Code, Chapter 51. No other statutes, articles, or codes are affected by these proposed new rules.

§68.1.Authority.

These rules are promulgated under the authority of the Architectural Barriers Act, Texas Civil Statutes, Article 9102 and Texas Occupations Code, Chapter 51.

§68.10.Definitions.

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

(1) Act -- The Texas Architectural Barriers Act, Texas Civil Statutes, Article 9102.

(2) Building -- Any structure located in the State of Texas that is used and intended for supporting or sheltering any use or occupancy.

(3) Business days -- Calendar days, not including Saturdays, Sundays, and legal holidays.

(4) Commencement of Construction -- Placement of engineering stakes, delivery of lumber or other construction materials to the job site, erection of batter boards, formwork, or other construction related work.

(5) Commissioner -- As used in Article 9102 and in this chapter, has the same meaning as Executive Director.

(6) Completion of Construction -- That phase of a construction project which results in occupancy or the issuance of a certificate of occupancy.

(7) Construction Documents -- Documents used for construction of a building or facility, including working drawings, specifications, addenda, and applicable change orders.

(8) Contract Provider -- The state agency or political subdivision under contract with the department to perform plan reviews, inspections, or both.

(9) Designated Agent -- An individual designated by the owner to act on the owner's behalf.

(10) Facility -- All or any portion of buildings, structures, site improvements, complexes, equipment, roads, walks, passageways, parking lots, or other real property located in the State of Texas.

(11) Issue -- To mail or deliver plans or specifications to an owner, lessee, contractor, subcontractor, or any other person acting for an owner or lessee for the purpose of construction, after such plans or specifications have been sealed by an architect, interior designer, landscape architect, or engineer. In the event of a conflict between this definition and a definition promulgated by a licensing agency with authority over the person issuing the plans or specifications, then the definition of that licensing agency shall govern.

(12) Lessee -- With respect to state leased or occupied space, the state agency that enters into a contract with a building owner. In instances of free space or where a written contract is non-existent, reference to the lessee shall mean the occupying state agency.

(13) Owner -- The person or persons, company, corporation, authority, commission, board, governmental entity, institution, or any other entity that holds title to the subject building or facility. For purposes under these rules and the Act, an owner may designate an agent.

(14) Registered Building or Facility -- For the purposes of Article 9102, §5(k), a registered building or facility is a construction project that has been assigned a project registration number by the department.

(15) Registered Accessibility Specialist -- An individual who is certified by the department to perform the review functions, inspection functions, or both review and inspection functions of the department.

(16) Religious Organization -- An organization that qualifies as a religious organization as provided in Vernon's Texas Statutes and Codes Annotated Tax Code, Title 1, Subtitle C, Chapter 11, §11.20(c).

(17) Renovated, Modified, or Altered -- Any construction activity, including demolition, involving any part or all of a building or facility. Cosmetic work and normal maintenance do not constitute a renovation, modification, or alteration.

(18) Rules -- Title 16, Texas Administrative Code, Chapter 68, the administrative rules of the Texas Department of Licensing and Regulation promulgated pursuant to the Texas Architectural Barriers Act.

(19) State Agency -- A board, commission, department, office, or other agency of state government.

(20) TAS -- the Texas Accessibility Standards.

(21) Variance Application -- The formal documentation filed with the department, by which the owner petitions the department to rule on the impracticality of applying one or more of the standards or specifications to a building or facility.

§68.20.Buildings and Facilities Subject to Compliance with the Texas Accessibility Standards.

(a) A building or facility is subject to compliance with the Texas Accessibility Standards (hereinafter "TAS") if:

(1) public funds from a municipality, county, the state, or any political subdivision of the state are used any time during the construction process;

(2) a municipality, county, the state, or any political subdivision of the state donate land or other use of public lands on which buildings or facilities are constructed with private funds; or

(3) constructed with private funds with the intent of donating or deeding to a public entity.

(b) Buildings or facilities that are leased or rented to the state:

(1) need not be registered with the department for plan review and inspection if the annual lease expense is $12,000 or less.

(2) may be exempted from compliance if it is determined by the occupying agency that the space will not be used by the public and that the occasion for employment for persons with disabilities is improbable because of the essential job functions. The agency shall, prior to advertisement for bid, submit to the department for a determination a completed Lease Evaluation Form obtained from the department. If a Lease Evaluation Form is not submitted, compliance with all applicable standards shall be required.

(c) The following private entities are considered public accommodations and subject to the Act:

(1) an inn, hotel, motel, or other place of lodging except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of such establishment as the residence of such proprietor;

(2) a restaurant, bar, or other establishment serving food or drinks;

(3) a motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment;

(4) an auditorium, convention center, lecture hall, or other place of public gathering;

(5) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;

(6) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment;

(7) a terminal, depot, or other station used for specified public transportation;

(8) a park, zoo, amusement park, or other place of recreation;

(9) a museum, library, gallery, or other place of public display or collection;

(10) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education;

(11) a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and

(12) a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.

(d) Commercial facilities are subject to the Act if they are intended for non-residential use and if their operations will affect commerce. Such application shall not include railroad locomotives, railroad freight cars, railroad cabooses, railroad cars described in the Americans with Disabilities Act (ADA) §242, or covered under the ADA, Title III, railroad rights-of-way, or facilities that are covered or expressly exempted from coverage under the federal Fair Housing Act of 1968.

(e) Buildings or facilities of a religious organization are subject to the Act except for areas exempted under §68.30 of this title (relating to Exemptions).

(f) Buildings or facilities not subject to the Act may be reviewed and/or inspected upon request and payment of the applicable fee(s).

§68.30.Exemptions.

The following buildings, facilities, or spaces are exempt from the provisions of the Act:

(1) Federal Property . Buildings or facilities owned, operated, or leased by the federal government;

(2) Construction Sites . Structures, sites, and equipment directly associated with the actual processes of construction, including, but not limited to, scaffolding, bridging, materials hoists, materials storage, construction trailers, portable toilet units provided for use exclusively by construction personnel on a construction site;

(3) Raised Security Areas . Raised areas used primarily for purposes of security, life safety, or fire safety, including, but not limited to, observation galleries, prison guard towers, fire towers, or lifeguard stands;

(4) Limited Access Spaces . Spaces accessed only by ladders, catwalks, crawl spaces, very narrow passageways, or tunnels;

(5) Equipment Spaces . Spaces frequented primarily by personnel for maintenance, repair, or periodic monitoring of equipment. Such spaces include, but are not limited to, elevator pits, elevator penthouses, mechanical, electrical, or communications equipment rooms, piping or equipment catwalks, petroleum and chemical processing and distribution structures, electric substations and transformer vaults, environmental treatment structures, and highway and tunnel utility facilities.

(6) Single Occupant Structures . Single occupant structures accessed only by passageways below grade or elevated above grade, including but not limited to, toll booths that are accessed only by underground tunnels.

(7) Restricted Occupancy Spaces . Vertical access (elevators and platform lifts) is not required for the second floor of two-story control buildings located within a chemical manufacturing facility where the second floor is restricted to employees and does not contain common areas or employment opportunities not otherwise available in accessible locations within the same building.

(8) Places Used Primarily for Religious Rituals . Within a building or facility of a religious organization, an area used primarily for religious ritual, as determined by the owner or occupant. To facilitate the plan review, the owner or occupant shall include a clear designation of such areas with the plans submitted for review. This exemption does not apply to common areas. Examples of common areas include, but are not limited to, the following: parking facilities, accessible routes, walkways, hallways, toilet facilities, entrances, public telephones, drinking fountains, and exits.

§68.31.Variance Procedures.

(a) Requests to waive or modify a standard shall be submitted on the Variance Application form prescribed by the department. A separate variance application shall be submitted for each condition within a single building or facility.

(b) Variance applications shall be submitted by the owner of the subject building or facility, and shall be accompanied by the applicable fee.

(c) A denial of a variance application may be appealed to the Director of Code Review and Inspections, or his designate, in writing within 21 calendar days from issuance, upon payment of the applicable appeal fee.

(d) A denial of a variance appeal from the Director of the Code Review and Inspections Division may be appealed to the Executive Director of the Texas Department of Licensing and Regulation, or his designate, in writing within ten days of notification of the Division Director's decision. The decision of the Executive Director may be appealed to the Texas Commission of Licensing and Regulation in writing within ten calendar days of notification of the Executive Director's decision.

(e) At each stage of the variance process, the party making the request shall be advised in writing of the determination.

§68.50.Submission of Construction Documents.

(a) An architect, interior designer, landscape architect, or engineer with overall responsibility for the design of a building or facility subject to compliance with TAS, shall mail, ship, or hand-deliver the construction documents to the department, a registered accessibility specialist, or a contract provider not later than five (5) business days after the design professional issues the construction documents..

(b) An Architectural Barriers Project Registration form must be completed for each subject building or facility and submitted along with the construction documents and the applicable review fee.

(c) In projects involving multiple phases, construction documents pertaining to each phase shall be submitted in accordance with this chapter.

(d) In projects involving "fast-track" construction, partial submittals of constructions documents may be made. Construction documents pertaining to each portion of the work shall be submitted in accordance with these rules.

(e) When bid packages involve multiple facilities such as prototypes or other identical facilities, only one set of building drawings need be submitted. An Architectural Barriers Project Registration form must be submitted for each separate building and facility. Drawings noting site adaptations are required for each location.

§68.51.Review of Construction Documents.

(a) After review, the person making the submission will be advised in writing of the results. Construction documents will be approved only when the documents reflect compliance with all applicable accessibility standards. Conditional approval may be granted when it is determined that resubmittals are not warranted. Conditional approvals will refer to all items noted during the review which must be included in the design and construction of the building or facility.

(b) Construction documents received by the department, a registered accessibility specialist, or a contract provider shall become the property of the department.

(c) When the department, a registered accessibility specialist, or a contract provider requires verification of design revisions, such verifications may be made by submission of revised construction documents, change orders, addenda, and letters specifically addressing each revision.

(1) Resubmittals will be reviewed and the person making the resubmittal will be advised of the results. Resubmittals will be approved only when the resubmittal reflects compliance with all applicable accessibility standards. Conditional approval may be granted when it is determined that additional submittals are not warranted.

(2) Resubmittals received after completion of construction, based on the recorded estimated completion date, may not be reviewed but will become a matter of record.

§68.52.Inspections.

(a) The building or facility owner must request an inspection from the department, a registered accessibility specialist, or a contract provider no later than thirty (30) calendar days after the completion of construction, renovation, modification, or alteration of the subject building or facility.

(b) Inspections will be performed during the normal operating hours of the owner. Any deviation from operating hours shall be at the convenience of the owner.

(c) The owner will be notified of the impending inspection and requested to be present during the inspection.

(d) The owner will be advised of the results of each inspection.

§68.53.Corrective Modifications Following Inspection.

When corrective modifications to achieve compliance are required, the department, registered accessibility specialist, or contract provider shall:

(1) provide the owner a list of deficiencies and a deadline for completing modifications;

(2) grant an extension, consistent with established procedures, if satisfactory evidence is presented showing that the time period specified is inadequate to perform the necessary corrections; and

(3) require written verification of corrective modifications from the owner, as needed.

§68.54.Notice of Compliance.

A Notice of Substantial Compliance will be provided to the owner, after a newly constructed building or facility has had a satisfactory inspection or submitted verification of corrective modifications.

§68.65.Advisory Committee.

(a) The purpose of the Architectural Barriers Advisory Committee is to review rules and Technical Memoranda relating to the Architectural Barriers program and recommend changes in the rules and Technical Memoranda to the Commission and the Executive Director.

(b) Recommendations of the committee will be transmitted to the Commission by the Executive Director through the Director of the Code Review and Inspections Division.

(c) Committee meetings are called by the chair or Executive Director. Meetings in excess of those mandated by the Act may be authorized by the Executive Director.

(d) Expenses reimbursed to committee members shall be limited to authorized expenses incurred while on committee business and traveling to and from committee meetings. The least expensive method of travel should be used. Expenses can be reimbursed to committee members only when the legislature has specifically appropriated money for that purpose.

(e) Expenses paid to committee members shall be limited to those allowed by the State of Texas Travel Allowance Guide and the Texas Department of Licensing and Regulation policies governing travel allowances for employees.

(f) The committee shall consist of four building professionals and five consumers. A majority of the Committee shall be persons with disabilities. Committee members will serve staggered three-year terms.

§68.70.Registered Accessibility Specialists -- Qualifications for Certification.

(a) An applicant seeking departmental certification as a registered accessibility specialist in order to perform plan review services shall meet the following minimum qualifications:

(1) Any one of the following:

(A) a degree in architecture, engineering, interior design, landscape architecture, or equivalent, and a minimum of one year experience related to building planning, accessibility design or review, or equivalent; or

(B) eight years experience related to building planning, accessibility design or review, or equivalent; or

(C) four years experience related to building planning, accessibility design or review, or equivalent, and certification as an accessibility specialist granted by a model building code organization; and

(2) satisfactory completion of the Texas Accessibility Academy; and

(3) pass an examination approved by the department.

(b) An applicant seeking departmental certification as a registered accessibility specialist in order to provide inspection services shall meet the following minimum qualifications:

(1) Any one of the following:

(A) minimum of a high school diploma or equivalent; and

(B) either

(i) four years experience related to building inspections, accessibility inspections, building planning, accessibility design or review, or equivalent; or

(ii) two years experience related to building inspections, accessibility inspections, building planning, accessibility design or review, or equivalent, and certification as an accessibility specialist as granted by a model building code organization; and

(2) satisfactory completion of the Texas Accessibility Academy; and

(3) pass an examination approved by the department.

(c) An applicant shall submit a complete application for certification on the form prescribed by the department, accompanied by all appropriate fees. An applicant must complete all requirements, including satisfactory completion of an examination, no later than one year after the date the application is filed.

(d) Each applicant who satisfies all requirements will be provided a wallet card. The wallet card is the actual certificate of registration. A wall certificate will be provided to a new registrant.

(e) Endorsement codes for certificates of registration are as follows: Plan review functions-R; Inspection functions-I; Plan review and inspection functions-RI.

§68.75.Responsibilities of the Registered Accessibility Specialist.

(a) Registered accessibility specialists may set and collect fees for services.

(b) Records maintained by registered accessibility specialists, as required by department rules or procedures, are subject to the provisions of the Texas Government Code, Chapter 552, Texas Open Records Act.

(c) Registered accessibility specialists endorsed for plan review services shall submit all required fees to the department, and comply with all procedures established by the department relating to plan reviews.

(d) Registered accessibility specialists endorsed for inspection services shall:

(1) verify the ownership of each building or facility for which they perform inspection services, prior to submittal of the inspection;

(2) submit all required fees to the department, and comply with all procedures established by the department relating to inspections.

§68.76.Standards of Conduct for the Registered Accessibility Specialist.

(a) Competency . The registered accessibility specialist shall be knowledgeable of and adhere to the Act, the rules, the TAS, Technical Memoranda published by the department, and all procedures established by the department for plan reviews and inspections. It is the obligation of the registered accessibility specialist to exercise reasonable judgment and skill in the performance of plan reviews, inspections, and related activities.

(b) Integrity . A registered accessibility specialist shall be honest and trustworthy in the performance of plan review, inspection, and related activities, and shall avoid misrepresentation and deceit in any fashion, whether by acts of commission or omission. Acts or practices that constitute threats, coercion, or extortion are prohibited.

(c) Interest . The primary interest of the registered accessibility specialist is to ensure compliance with the Act, the rules, and the TAS. The registered accessibility specialist's position, in this respect, should be clear to all parties concerned while conducting plan reviews, inspections, and related activities.

(d) Conflict of Interest . A registered accessibility specialist is obliged to avoid conflicts of interest and the appearance of a conflict of interest. A conflict of interest or the appearance of a conflict of interest includes, but is not limited to, the following:

(1) performing a plan review, inspection, or a related activity on a building or facility in which a registered accessibility specialist is an owner, either in whole or in part, or an employee of a full or partial owner;

(2) performing a plan review, inspection, or related activity on a building or facility in which a member of the family of the registered accessibility specialist is an owner, either in whole or in part;

(3) performing a plan review, inspection, or related activity on a building or facility for which the design of the current project was created, either in whole or in part, by the registered accessibility specialist; and

(4) performing a plan review, inspection, or related activity on a building or facility for which the design of the current project was created, either in whole or in part, by the registered accessibility employer(s).

(e) Specific Rules of Conduct . A registered accessibility specialist shall not:

(1) participate, whether individually or in concert with others, in any plan, scheme, or arrangement attempting or having as its purpose the evasion of any provision of the Act, the rules, or the TAS;

(2) knowingly furnish inaccurate, deceitful, or misleading information to the department, a building owner, or other person involved in a plan review, inspection, or related activity;

(3) state or imply to the building owner that the department will grant a variance;

(4) engage in any activity that constitutes dishonesty, misrepresentation, or fraud while performing a plan review, inspection, or related activity; and

(5) perform a plan review, inspection, or related activity in a negligent or incompetent manner.

§68.79.Contract Providers.

In addition to the specific terms of their contracts, contract providers are subject to the same minimum qualifications, responsibilities, and standards of conduct as registered accessibility specialists. Contract providers are also subject to the same investigation and audit procedures as registered accessibility specialists.

§68.90.Administrative Sanctions or Penalties.

(a) If a person violates any provision of Title 132A, Texas Civil Statutes, Article 9102, any provision of Title 16, Texas Administrative Code, Chapter 68, any provision of the Texas Accessibility Standards (TAS), or an order of the Executive Director or Commission, proceedings may be instituted to impose administrative sanctions, administrative penalties, or both administrative penalties and sanctions in accordance with the provisions of Title 132A, Texas Civil Statutes, Article 9102; Title 2, Texas Occupations Code, Chapter 51; and Title 16, Texas Administrative Code, Chapter 60 of this title (relating to the Texas Department of Licensing and Regulations).

(b) It is a violation of the Act for a person to perform a plan review or inspection function of the department, unless that person is a department employee, a registered accessibility specialist with the appropriate endorsement, or a contract provider. A person who does not hold one of these designations and performs a plan review or inspection function of the department is subject to administrative penalties in accordance with the Act or Title 2, Texas Occupations Code, Chapter 51 and Title 16, Texas Administrative Code, Chapter 60.

(c) Cheating on an examination is grounds for denial, suspension, or revocation of a license, imposition of an administrative penalty, or both.

§68.93.Complaints, Investigations, and Audits.

(a) Complaints . A complaint may be filed against an owner if there is reason to believe that a building or facility is not in compliance with the Act, the rules, or the TAS. A complaint may be filed against a registered accessibility specialist if there is reason to believe that the registered accessibility specialist has violated the Act, the rules, or the TAS.

(b) Investigations and Monitoring . Owners of buildings and facilities subject to compliance with the TAS are subject to investigation by the department. Registered accessibility specialists are subject to investigation and monitoring by the department.

(c) Inspection and Copying of Records of Registered Accessibility Specialist . A registered accessibility specialist's records, pertaining to a project for which plan review, inspection, or related activities have been or will be performed, shall be made available for the inspection and copying by the department. The registered accessibility specialist shall make said records available within ten (10) calendar days of receiving a written request for records from the department.

§68.100.Technical Standards and Technical Memoranda.

(a) The Texas Department of Licensing and Regulation adopts by reference the Texas Accessibility Standards (TAS), April 1, 1994 edition.

(b) The Texas Department of Licensing and Regulation may from time to time, publish Technical Memoranda to provide clarification of technical matters relating to the Texas Accessibility Standards, if such memoranda have been reviewed by the Architectural Barriers Advisory Committee.

(c) Copies of TAS or Technical Memoranda may be obtained at www.license.state.tx.us or by contacting the department.

§68.101.State Leases (initial or renewed).

(a) State leased buildings or facilities with an annual lease expense in excess of $12,000 shall be registered with the department by completing a State Lease Registration form. For state leased buildings or facilities that are being newly constructed or substantially renovated, an Architectural Barriers Project Registration form shall also be completed.

(b) Buildings or facilities that are leased or occupied in whole or in part for use by the state, shall meet the following requirements of TAS:

(1) New construction shall comply with TAS 4.1.2 and 4.1.3.

(2) Additions shall comply with TAS 4.1.5.

(3) Alterations shall comply with TAS 4.1.6.

(4) Historic buildings or facilities shall comply with TAS 4.1.7.

(5) Existing buildings and facilities are ones that have not been constructed, renovated, modified or altered since April 1, 1994. In an existing building or facility, where alterations are not planned or the planned alterations will not affect an area containing a primary function, the following minimum requirements shall apply:

(A) If parking is required as part of the lease agreement or is provided to serve the leased area, accessible parking spaces shall comply with TAS 4.6.

(B) An accessible route from the parking area(s) shall comply with TAS 4.3.

(C) At least one entrance serving the leased space shall comply with TAS 4.14.

(D) If toilet rooms or bathrooms are required by the lease agreement or are provided to serve the leased area, at least one set of men's and women's toilet rooms or bathrooms or at least one unisex toilet room or bathroom serving the leased area shall comply with TAS 4.22 or 4.23.

(E) Signage at toilet rooms or bathrooms shall comply with TAS 4.30. Toilet rooms or bathrooms serving the leased area which are not accessible shall be provided with signage complying with TAS 4.30.1, 4.30.2, 4.30.3, 4.30.5 and 4.30.7, indicating the location of the nearest accessible toilet room or bathroom within the facility.

(F) If drinking fountains are required by the lease agreement, or are provided to serve the leased area, at least one fountain shall comply with TAS 4.15. If more than one drinking fountain is provided, at least 50% shall comply with TAS 4.15.

(G) If public telephones are required by the lease agreement, or are provided to serve the leased area, at least one public telephone shall comply with TAS 4.31.

(H) If an element or space of a lease is not specified in this subsection but is present in a state leasehold, that element or space shall comply with TAS 4.1.6.

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 20, 2001.

TRD-200104190

William H. Kuntz, Jr.

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: September 2, 2001

For further information, please call: (512) 463-7348


Chapter 71. WARRANTORS OF VEHICLE PROTECTION PRODUCTS

16 TAC §§71.1, 71.10, 71.21, 71.22, 71.70, 71.80, 71.90

The Texas Department of Licensing and Regulation proposes new §§71.1, 71.10, 71.21, 71.22, 71.70, 71.80, and 71.90 concerning the regulation of certain warrantors of vehicle protection products.

These rules are necessary to implement a new regulatory program required by Title 132, Texas Civil Statutes, Chapter 20, Article 9035, Vehicle Protection Product Regulatory Act. Article 9035 was enacted by Acts of the 77th Legislature; SB 714 and HB 1214. The proposed rules related to SB 714 establish requirements and set fees necessary for the registration and regulation of certain warrantors of vehicle protection products. The proposed rules related to HB 1214 define "Commissioner" as being the Executive Director of the Texas Department of Licensing and Regulation and define the "Executive Director" as being the Commissioner of the Texas Department of Licensing and Regulation.

Jimmy Martin, Director of Enforcement, of the Texas Department of Licensing and Regulation, has determined that for the first five-year period these sections are in effect there will be fiscal implications as a result of enforcing or administering these new rules. State government will have an increase in revenue due to the collection of fees for certificates of registration. The average annual revenue increase for each of the first five years these sections are in effect will be approximately $24,800, for an approximate total amount of $124,000 for the first five-year period. Costs to the state are expected to be approximately equal to these revenues. There will be no fiscal implications on local government.

Mr. Martin also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the section will be to provide industry oversight and require warrantors of vehicle protection products to maintain financial responsibility.

The anticipated economic effect on small businesses and persons who are required to comply with the sections as proposed will be a yearly registration fee of $500 for registrants who became obligated as warrantors of 0 to 999 vehicle protection product warranties during the twelve (12) months preceding the date of the application; $1,000 for registrants who became obligated as warrantors of 1,000 to 1,999 vehicle protection product warranties during the twelve (12) months preceding the date of the application; and $1,500 for registrants whom became obligated as warrantors of 2,000 or more vehicle protection product warranties during the twelve (12) months preceding the date of the application.

The cost of compliance will not exceed the statutory limit of $2,500 per annual registration fee.

Comments on the proposal may be submitted to Jimmy G. Martin, Director of Enforcement, Texas Department of Licensing and Regulation, P. O. Box 12157, Austin, Texas 78711, facsimile (512) 475-2872, or by e-mail: jimmy.martin@license.state.tx.us. The deadline for comments is thirty days after publication in the Texas Register .

The new rules are proposed under Texas Occupations Code, Chapter 51, §51.203 and Texas Civil Statutes, Article 9035, §4. The Department interprets §51.203 as authorizing the Executive Director to adopt rules as necessary to implement this chapter and any other law establishing a program regulated by the Department. The Department interprets §4 of Article 9035 and §41(b) of HB 1214, Acts of the 77th Texas Legislature, as authorizing the Executive Director of the Texas Department of Licensing and Regulation to promulgate and enforce a code of rules and take all action necessary to assure compliance with the intent and purpose of Article 9035.

The statutory provisions affected by the new rules are Texas Civil Statutes, Article 9035, and Texas Occupations Code, Chapter 51. No other statutes, articles, or codes are affected by these proposed new rules.

§71.1.Authority.

These rules are promulgated under the authority of Title 132, Texas Civil Statutes, Chapter 20, Article 9035, and Title 2, Texas Occupations Code, Chapter 51.

§71.10.Definitions.

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

(1) Commissioner--As used in Texas Civil Statutes, Article 9035, and in these rules, has the same meaning as Executive Director.

(2) Executive Director--As used in Texas Civil Statutes, Article 9035, and in these rules, has the same meaning as Commissioner.

(3) Financial statements--A balance sheet, income statement, statement of cash flows, and statement of equity reflecting the financial condition of the subject during the most recent twelve (12) months, prepared in accordance with generally accepted accounting principles.

(4) Net worth--The excess of total assets over total liabilities.

(5) Nonpublic information--Information prohibited from disclosure by statute.

§71.21.Registration Requirements - General.

(a) No person may operate as a warrantor of vehicle protection products, or offer to be a warrantor of vehicle protection products sold or offered in this state without first registering with the department.

(b) Registration is valid for one year from the date issued and must be renewed annually.

(c) The required fee must accompany both initial and renewal applications.

(d) Falsification of information on an application is cause for denial of the application and revocation of the registration.

§71.22.Registration Requirements - Financial Security Requirements.

(a) Each applicant and registrant may comply with the financial security requirement under Article 9035 by:

(1) submitting proof of a reimbursement insurance policy described in Article 9035, or

(2) presenting an audit report and audited financial statements for the twelve-month period preceding the filing of the application which demonstrate that either the applicant or the registrant, or the parent corporation of the applicant or registrant, if there is one, has a net worth of at least $50 million.

(b) If the applicant or registrant relies upon the net worth of its parent corporation to satisfy the financial security requirements of Article 9035, then the applicant or registrant must furnish sufficient written proof that the parent corporation has agreed to guarantee the liabilities and obligations of the applicant or registrant relating to vehicle protection products sold or offered for sale by the applicant or registrant in this state.

§71.70.Responsibilities of Registrant.

(a) A registrant must provide the following written notification to all purchasers of their vehicle protection products and warranties: "Regulated by the Texas Department of Licensing and Regulation, P. O. Box 12157, Austin, Texas 78711, 1-800-803-9202, 512-463-6599." The notification shall be on all contracts and invoices prepared, issued, or used by the registrant.

(b) A registrant shall notify the Department in writing within thirty (30) days of any change in the information set forth in the registrant's application.

(c) The registrant shall allow the department to audit, examine, and copy any and all records maintained by the registrant pursuant to Article 9035 or relating to vehicle protection products sold or offered for sale in this state.

(d) A registrant who is a warrantor of vehicle protection products shall provide a copy of the warranty to the purchaser within 45 days from the date of purchase.

(e) A registrant who is a warrantor of vehicle protection products shall not disclose nonpublic information obtained in connection with the sale of a vehicle protection product in this state except to an entity acting on behalf of the registrant to perform the functions required to implement the vehicle protection product warranty who agrees not to disclose the nonpublic information.

(f) An entity acting on behalf of the registrant under subsection (e) of this section shall not disclose nonpublic information concerning a consumer unless it is necessary to fulfill the terms and conditions of the consumer's warranty.

§71.80.Fees.

(a) All fees are non-refundable.

(b) The original and renewal registration fees shall be:

(1) $500 for registrants who became obligated as warrantors of 0 to 999 vehicle protection product warranties during the twelve (12) months preceding the date of the application;

(2) $1,000 for registrants who became obligated as warrantors of 1,000 to 1,999 vehicle protection product warranties during the twelve (12) months preceding the date of the application; and

(3) $1,500 for registrants who became obligated as warrantors of 2,000 or more vehicle protection product warranties during the twelve (12) months preceding the date of the application.

(c) A $50 fee shall be charged for duplicate or amended registration certificates.

§71.90.Administrative Penalties and Sanctions.

If a person violates any provision of Title 132, Texas Civil Statutes, Chapter 20, Article 9035, any provision of Title 16, Texas Administrative Code, Chapter 71, or any provision of an order of the Executive Director or Commission, proceedings may be instituted to impose administrative penalties, administrative sanctions, or both administrative penalties and sanctions in accordance with the provisions of Title 132, Texas Civil Statutes, Chapter 20, Article 9035; Title 2, Texas Occupations Code, Chapter 51; and Title 16, Texas Administrative Code, Chapter 60 of this title (relating to the Texas Department of Licensing and Regulation).

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 20, 2001.

TRD-200104185

William H. Kuntz, Jr.

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: September 2, 2001

For further information, please call: (512) 463-7348


Chapter 75. AIR CONDITIONING AND REFRIGERATION CONTRACTOR LICENSE LAW

16 TAC §75.10, §75.100

The Texas Department of Licensing and Regulation proposes amendments to §75.10 and §75.100 concerning the regulation of air conditioning and refrigeration contractors.

These rules are necessary to implement statutory changes to Title 132, Texas Civil Statutes, Article 8861, Air Conditioning and Refrigeration Contractor License Law. The statutory changes to Article 8861 were enacted by Acts of the 77th Legislature; HB 196 and HB 1214. The proposed rule revisions related to HB 196 change the references to codes to be applied by air conditioning and refrigeration contractors performing installation services and in fulfilling the standards of practice for their professional services. The proposed rules related to HB 1214 define "Commissioner" as being the Executive Director of the Texas Department of Licensing and Regulation and define the "Executive Director" as being the Commissioner of the Texas Department of Licensing and Regulation.

Jimmy Martin, Director of Enforcement, of the Texas Department of Licensing and Regulation, has determined that for the first five-year period these sections are in effect there will be no fiscal implications as a result of enforcing or administering the proposed revised rules. There also will be no fiscal implications on local government.

Mr. Martin also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the section will be to provide increased industry oversight and to clarify contractors' responsibilities under municipal codes affecting air conditioning and refrigeration services.

There is no anticipated economic effect on small businesses and persons who are required to comply with the revised rules as proposed.

Comments on the proposal may be submitted to Jimmy G. Martin, Director of Enforcement, Texas Department of Licensing and Regulation, P. O. Box 12157, Austin, Texas 78711, facsimile (512) 475-2872, or by e-mail: jimmy.martin@license.state.tx.us. The deadline for comments is thirty days after publication in the Texas Register .

The amendments are proposed under Texas Occupations Code, Chapter 51, §51.203 and Texas Civil Statutes, Article 8861, §3. The Department interprets §51.203 as authorizing the Executive Director to adopt rules as necessary to implement this chapter and any other law establishing a program regulated by the Department. The Department interprets §3 of Article 8861 and §41(b) of HB 1214, Acts of the 77th Texas Legislature, as authorizing the Executive Director of the Texas Department of Licensing and Regulation to promulgate and enforce a code of rules and take all action necessary to assure compliance with the intent and purpose of Article 8861.

The statutory provisions affected by the proposed amendments related to HB 196 are Texas Occupations Code, Chapter 51 and Texas Civil Statutes, Article 8861. The statutory provisions affected by the proposed amendments related to HB 1214 are Texas Occupations Code, Chapter 51, §51.001 and Texas Civil Statutes, Article 8861, §2. No other statutes, articles, or codes are affected by the proposed amendments.

§75.10.Definitions.

The following words and terms have the following meanings:

(1)-(8) (No Change).

(9) Commissioner -- As used in Texas Civil Statutes, Article 8861, and in these rules, has the same meaning as Executive Director.

(10) [ (9) ] Contracting -- Agreeing to perform work, either verbally or in writing, or performing work, either personally or through an employee or subcontractor.

(11) [ (10) ] Cryogenics -- refrigeration that deals with producing temperatures ranging from:

(A) -250 degrees F to Absolute Zero (-459.69 degrees F);

(B) -156.6 degrees C to -273.16 degrees C;

(C) 116.5 K to 0 K; or

(D) 209.69 degrees F to 0 degrees R.

(12) [ (11) ] Design of a system -- making decisions on the necessary size of equipment, number of grilles, placement and size of supply and return air ducts, and any other requirements affecting the ability of the system to perform the function for which it was designed.

(13) [ (12) ] Direct personal supervision -- Directing and verifying the design, installation, construction, maintenance, service, repair, alteration, or modification of an air conditioning, refrigeration, process cooling, or process heating product or equipment for compliance with mechanical integrity.

(14) [ (13) ] Employee -- An individual who performs tasks assigned to him by his employer. The employee is subject to the deduction of social security and federal income taxes from his pay. An employee may be full time, part time, or seasonal. Simultaneous employment with a temporary employment agency, a staff leasing agency, or other employer does not affect his status as an employee.

(15) [ (14) ] Employer -- One who employs the services of others, pays their wages, deducts the required social security and federal income taxes from the employee's pay, and directs and controls the employee's performance.

(16) Executive Director -- as used in Texas Civil Statutes, Article 8861, and in these rules, has the same meaning as Commissioner.

(17) [ (15) ] Full time employee -- an employee who is present on the job 40 hours a week, or at least 80% of the time the company is offering air conditioning and refrigeration contracting services to the public, whichever is less.

(18) [ (16) ] Licensee -- an individual holding a license of the class and endorsement appropriate to the work performed under the Act and these rules.

(19) [ (17) ] Permanent office -- Any business location at which contractual agreements to perform work requiring a license under the Act are arranged and where supervising control for those contracts originate. Temporary construction sites or other locations at which employees of a licensee work under contract to provide service, maintenance and repair work are not permanent offices.

(20) [ (18) ] Primary process medium -- a refrigerant or other primary process fluid that is classified in the current ANSI/ASHRAE Standard 34 as Safety Group A1, A2, B1, or B2. Safety Groups A3 and B3 refrigerants are specifically excluded.

(21) [ (19) ] Proper installation -- installing air conditioning or refrigeration equipment in accordance with:

(A) applicable municipal ordinances and codes adopted by a municipality where the installation occurs;

(B) the least [ most ] stringent current Uniform Mechanical Code [ Codes, Standard Mechanical Code, Standard Gas Code ], International Mechanical Code, and International Fuel Gas Code in areas where no code has been adopted;

(C) the manufacturer's instructions; and

(D) all requirements for safety and the proper performance of the function for which the equipment or product was designed.

(22) [ (20) ] Repair work -- diagnosing and repairing problems with air conditioning, commercial refrigeration, or process cooling or heating equipment, and remedying or attempting to remedy the problem. Repair work does not mean simultaneous replacement of the condensing unit, furnace, and evaporator coil.

§75.100.Technical Requirements.

(a)-(d) (No Change)

(e) Standards

(1) The standard for the practice of air conditioning and refrigeration in a municipality is the code the municipality adopted by ordinance, provided that the ordinance does not make the code less strict than the current [ 2000 ] edition of the code adopted.

(2) The standards for the practice of air conditioning and refrigeration in an area where no code has been adopted is the least strict applicable provision of the current [ 2000 ] International Mechanical Code or the current [ 2000 ] Uniform Mechanical Code.

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 20, 2001.

TRD-200104187

William H. Kuntz, Jr.

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: September 2, 2001

For further information, please call: (512) 463-7348


Chapter 80. LICENSED COURT INTERPRETERS

16 TAC §§80.1, 80.10, 80.20, 80.22, 80.24, 80.70, 80.80, 80.90

The Texas Department of Licensing and Regulation proposes new §§80.1, 80.10, 80.20, 80.22, 80.24, 80.70, 80.80, and 80.90 concerning the licensing and regulation of court interpreters for individuals who do not communicate in English.

These rules are necessary to implement a new licensing and regulatory program required by Title 2, Texas Government Code, Chapter 57. Title 2, Texas Government Code, Chapter 57 was enacted by Acts of the 77th Legislature; HB 2735 and HB 1214. The proposed rules related to HB 2735 establish requirements and set fees necessary for the licensure and regulation of court interpreters for individuals who do not communicate in English. The proposed rules related to HB 1214 define "Commissioner" as being the Executive Director of the Texas Department of Licensing and Regulation and define the "Executive Director" as being the Commissioner of the Texas Department of Licensing and Regulation.

Jimmy Martin, Director of Enforcement, of the Texas Department of Licensing and Regulation, has determined that for the first five-year period these sections are in effect there will be fiscal implications as a result of enforcing or administering these new rules. State government will have an increase in revenue due to the collection of fees for original applications, renewal applications, duplicate licenses, and language examinations. The average annual revenue increase for each of the first five years these sections are in effect will be approximately $167,525, for an approximate total amount of $837,625 for the first five-year period. Costs to the state are expected to be approximately equal to these revenues. There will be no fiscal implications on local government.

Mr. Martin also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be to increase the efficiency and reliability of the judicial system, and to ensure equal access to the system regardless of a person's ability to communicate in English.

The anticipated economic effect on small businesses and persons who are required to comply with the sections as proposed will be an initial application fee of $200, an annual renewal fee of $100, a duplicate license fee of $50, a $50 fee to add another language endorsement to an existing license, and a language examination fee of $100 for each language test administered.

Comments on the proposal may be submitted to Jimmy G. Martin, Director of Enforcement, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711, facsimile (512) 475-2872, or by e-mail: jimmy.martin@license.state.tx.us. The deadline for comments is thirty days after publication in the Texas Register .

The new rules are proposed under Texas Occupations Code, Chapter 51, §51.203 and Title 2, Texas Government Code, Chapter 57, §57.043(b). The Department interprets §51.203 as authorizing the Executive Director to adopt rules as necessary to implement this chapter and any other law establishing a program regulated by the Department. The Department interprets §57.043(b) of Chapter 57 and §41(b) of HB 1214, Acts of the 77th Texas Legislature, as authorizing the Executive Director of the Texas Department of Licensing and Regulation to promulgate and enforce a code of rules and take all action necessary to assure compliance with the intent and purpose of Chapter 57.

The statutory provisions affected by the new rules are Title 2, Texas Government Code, Chapter 57, and Texas Occupations Code, Chapter 51. No other statutes, articles, or codes are affected by these proposed new rules.

§80.1.Authority.

These rules are promulgated under the authority of Title 2, Texas Government Code, Chapter 57, and Title 2, Texas Occupations Code, Chapter 51.

§80.10.Definitions.

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

(1) Commissioner--As used in Title 2, Texas Government Code, Chapter 57, and in these rules, has the same meaning as Executive Director.

(2) Dishonorable--Lacking in integrity, indicating an intent to deceive or take unfair advantage of another person, or bringing disrepute to the profession of court interpretation.

(3) Executive Director--As used in Title 2, Texas Government Code, Chapter 57, and in these rules, has the same meaning as Commissioner.

(4) Unethical--Conduct that does not conform to generally accepted standards of conduct for professional court interpreters.

§80.20.Licensing Requirements - General.

(a) Prior to performing court interpretation services, a person first must obtain a court interpreter license from the Department with a language endorsement for each language that the applicant will interpret.

(b) A person seeking to be licensed as a court interpreter must file an application with the Department using Department forms for this purpose and must pay a non-refundable license application filing fee at the time the application is filed with the Department.

§80.22.License Requirements - Examination.

Except as provided by §80.24 of this title (relating to Licensing Requirements-Waiver of Examination Requirement), each applicant must pass all parts of a Department approved language examination before the applicant will be licensed as a court interpreter for that language.

§80.24.License Requirements - Waiver of Examination Requirement.

(a) Upon acceptable proof of an applicant's qualifications, the Executive Director may waive the examination requirement of §80.22 of this title (relating to Licensing Requirements - Examination), if the application is submitted prior to January 1, 2002.

(b) Acceptable proof of an applicant's qualifications may include any or all of the following:

(1) a written reference from an officer of a court, including administrative hearing proceedings, stating that the applicant has acted as a court interpreter in that court, and that the applicant has demonstrated proficiency interpreting in a specific language;

(2) the results of an examination passed within the two years preceding the filing of the application; and

(3) any other proof the Executive Director may deem appropriate.

§80.70.Responsibilities of Licensee - General.

(a) A licensee must provide the following written notification to the court: "Regulated by The Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711, 1-800-803-9202, 512-463-6599." The notification shall also be included on all contracts and invoices for court interpreter services.

(b) A licensee shall present their court interpreter license upon the request of a court or an officer of the court.

(c) A licensee shall notify the Department, in writing, within thirty (30) days of any change in the information set forth in the licensee's application.

§80.80.Fees.

(a) All fees are non-refundable.

(b) The original license application filing fee shall be $200.

(c) The renewal application filing fee shall be $100.

(d) The fee for obtaining a duplicate license, making a change in name or address, or obtaining an additional language endorsement shall be $50 each.

(e) Each language examination shall have a separate fee of $60 for the written examination and $40 for the oral examination.

§80.90.Sanctions - Administrative Sanctions/Penalties.

If a person violates any provision of Title 2, Texas Government Code, Chapter 57, any provision of 16 Texas Administrative Code, Chapter 80, or any provision of an order of the Executive Director or Commission, proceedings may be instituted to impose administrative penalties, administrative sanctions, or both administrative penalties and sanctions in accordance with the provisions of Title 2, Texas Occupations Code, Chapter 51, or 16 Texas Administrative Code, Chapter 60 (relating to the Texas Department of Licensing and Regulation).

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 20, 2001.

TRD-200104186

William H. Kuntz, Jr.

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: September 2, 2001

For further information, please call: (512) 463-7348