Part 4.
OFFICE OF THE SECRETARY OF STATE
Chapter 73.
STATUTORY DOCUMENTS
Subchapter D. STATEMENT OF OFFICER FORMS
1 TAC §73.43, §73.44
The Office of the Secretary of State adopts amendments to
Subchapter D concerning Statement of Officer Forms without changes to the
proposed text as published in the January 10, 2003 issue of the
Texas Register
, (28 TexReg 415).
The amendments amend §73.43 and §73.44. The purpose of the amendments
is to conform the procedure for executing the Statement of Officer ("Statement")
to the requirements of Section 1, Article XVI of the Texas Constitution. The
referenced Section 1 of Article XVI simply requires that an elected or appointed
state officer "subscribe" to the Statement, and file the signed Statement
with the Secretary of State. The language in Section 1 does not require that
the Statement be subscribed to before a person authorized to administer oaths.
An advisory opinion letter, dated September 18, 2002, from the Office of the
Texas Attorney General agrees that there is no requirement that the Statement
be subscribed to before a person authorized to administer oaths. The amendments
remove the requirement that the Statement be executed before an officer authorized
to administer oaths. The amendments also update the language in §73.43
and §73.44 to indicate that, pursuant to amendments to Section 1 of Article
XVI, there is only one Statement form.
No comments were received concerning the proposed amendments.
The amendments are adopted under the Texas Government Code, §2001.004(1)
which provides the Secretary of State with the authority to prescribe and
adopt rules. The amendments affect the Texas Constitution, Section 1, Article
XVI.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on February 24, 2003.
TRD-200301399
Geoffrey S. Connor
Assistant Secretary of State
Office of the Secretary of State
Effective date: March 16, 2003
Proposal publication date: January 10, 2003
For further information, please call: (512) 475-0775
Subchapter D. VOTING SYSTEM CERTIFICATION
1 TAC §81.62
The Office of the Secretary of State, Elections Division,
adopts an amendment to §81.62, concerning the use of audit logs in automatic
tabulation equipment. The rule is adopted without changes to the text as published
in the January 17, 2003,
Texas Register
(28
TexReg 531).
No comments were received concerning the rule.
The amendment is adopted under the Texas Election Code, §31.003,
which provides the Office of the Secretary of State with the authority to
obtain and maintain uniformity in the application, interpretation, and operation
of provisions under the Texas Election Code and other election laws.
Statutory Authority: Election Code, Chapter 31, Subchapter A, §31.003
Election Code §122.001 is affected by this rule.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on March 5, 2003.
TRD-200301584
Geoffrey S. Connor
Assistant Secretary of State
Office of the Secretary of State
Effective date: March 25, 2003
Proposal publication date: January 17, 2003
For further information, please call: (512) 463-5562
The Office of the Secretary of State, Texas Register Section, adopts
the repeal of all the rules in Chapter 91 and replaces them with new rules
grouped into four subchapters: Subchapter A, General; Subchapter B, Nonrulemaking;
Subchapter C, Rulemaking; and Subchapter D, Rule Review. In response to public
comments, the new rules are adopted with changes to the proposed text as published
in the December 27, 2002, issue of the
Texas Register
(27 TexReg 12115).
We adopt the repeal of 1 TAC §§91.1, 91.3, 91.5, 91.7, 91.9,
91.11, 91.13 - 91.15, 91.17, 91.19, 91.21, 91.23, 91.25, 91.27, 91.29, 91.31,
91.61 - 91.63, 91.65 - 91.67, 91.69, 91.71, 91.73, 91.75, 91.77, 91.121, 91.122,
91.131, 91.133, 91.135, and 91.137. We adopt new 1 TAC §§91.1 -
91.7, 91.21 - 91.24, 91.31 - 91.41, and 91.71 - 91.74.
New §§91.2, 91.5, 91.21 - 91.24, 91.32 - 91.41, and 91.71 - 91.74
are adopted with changes. New §§91.1, 91.3, 91.4, 91.6, 91.7, and
91.31 are adopted without changes to the proposed text.
The revisions to Chapter 91 are necessary to describe changes in Texas
Register procedures and format, such as Internet-based submission forms. The
revisions also regroup the rules according to subject matter. For clarity,
we have separated rules concerning rulemaking and nonrulemaking filings into
separate subchapters. Throughout Subchapters B, C, and D, we have presumed
that every submitting agency now drafts its documents in a word processing
program and can submit electronic files through e-mail or the Internet. To
improve readability, we title some rules in Subchapters B, C, and D with "How
to" names that clearly identify the topic. Each "How to" rule covers a single
phase of the filing process. We also moved the list of document codes into
tables because the codes in old §91.61(c)(1) - (10), Electronic Procedures
for Filing Rules and Miscellaneous Documents, did not display correctly in
the web format.
SUMMARY OF COMMENTS
The Texas Education Agency (TEA), the Texas Department of Health (TDH),
and the Railroad Commission of Texas (RRC) each submitted comments, suggestions
and questions concerning the proposed rules.
COMMENTS FOR SUBCHAPTER A, GENERAL
TEA:
Should the authority referenced in §91.2(4)
be §2002.020 rather than §2001.020?
Response:
Yes, we agree this is a typographical
error. The correct cite is §2002.020.
TEA:
In §91.2(13) Should the term
"certifying official" be used rather than "certifying agent" for consistency
since that's how the term is referenced elsewhere?
Response:
We agree with the comment. The
section is adopted with the suggested change.
RRC:
Proposed new §91.2(11) includes
a definition of "rulemaking document." This term is not used consistently
in other rules; that makes it a little tricky to figure out if other similar
terms should be interpreted as meaning the same thing, and if not, if those
terms should be separately defined. The definition of "rulemaking document"
is still a little confusing about the minimum content of a "document." For
example, the provisions in proposed new §91.35(c) - (e) illustrate where
the use of the defined term "rulemaking document"--if that is the correct
term--would have been helpful. If that is not the correct term for the concept,
then definition of the terms that are used (e.g., "rule document" and "rulemaking
notices") would be helpful.
Response:
We agree with the comment. The
definition of "rulemaking document" is adopted with changes to make it clear
that a rulemaking document is a notice of proposed rulemaking, adopted rulemaking,
emergency rulemaking, or withdrawn rulemaking. In the context of rulemaking
notices, it may be referred to simply as a "document." To be consistent we
changed the term "rulemaking notices" to "rulemaking documents" in §91.35,
How to File a Proposed Rule, and §91.36, How to File an Adopted Rule.
RRC:
Regarding proposed new §91.4,
Acceptance or Refusal of a Document, there is no explanation in the preamble
for this new provision, so its purpose is not entirely clear. However, if
this is intended to make an operational distinction between the receipt of
a document at the Texas Register and its acceptance for filing and publication,
we think it's a helpful addition.
Response:
We agree with the comment. The
purpose of new §91.4 is to distinguish between the receipt of a document
and the acceptance for filing and publication of a document by the Texas Register.
COMMENTS FOR SUBCHAPTER B, NONRULEMAKING
TDH:
In §91.21, How to File an Open
Meeting Notice, fails to recognize emergency notices as allowed under the
Open Meetings Act.
Response:
We agree with the comment. The
Section is adopted with a paragraph that addresses the two-hour deadline for
notice of emergency meeting posting in accordance with the Government Code, §551.045.
RRC:
In §91.21(i), the word "only"
in the first sentence is misplaced. The sentence should be re-written as follows:
"(i) Although the Open Meetings Submit Form is available to liaisons at
all times, you will be able to contact Texas Register staff for assistance
in posting open meeting notices only during normal business hours."
Response:
We agree with the comment. We
have incorporated the suggested change into §91.21(i).
RRC:
The second sentence in §91.21(i)
reads, "If we anticipate that our web site will be off-line for an extended
period of time, we will notify liaisons of an alternate means of posting open
meeting notices." The preamble states that filing notices on diskette or through
the file transfer protocol or e-mail is obsolete, but the rule does not explicitly
prohibit this. The inference is that these methods would be authorized only
if the Texas Register's web site is off-line "for an extended period of time."
The only time this could be critical is toward the end of a workday when an
agency might need to file an open meeting notice and the web site is not working
for some reason. If the web site is not going to be off-line for an extended
period of time, the agency will not be advised of an alternative method for
filing; if it is not possible to file the open meeting notice until after
all the Texas Register staff have left for the day, the agency won't know
how to accomplish that filing. While this is sort of a "once in a blue moon"
scenario, when it happens, it could be very, very bad. Technology is great,
but timing trumps everything. We think it would be helpful to specify at least
ONE acceptable alternative filing method.
Response:
We disagree with the comment.
If the Secretary of State web site is disabled, then we also are unable to
post a meeting notice. Our priority in the event of a technical malfunction
is to secure and if necessary restore the display of notices that were posted
on the web site. Next, as promptly as possible, we will provide for agencies
to continue posting new notices. Although in practice the Open Meetings Submit
Form is available to liaisons at all times, the open meetings law does not
require that the Secretary of State provide a method that allows an agency
to post a meeting notice after office hours. There are numerous causes that
could hinder an agency's ability to post a notice. The liaison's password
may expire or a technical failure may occur that is unrelated to the secretary
of state system. The liaison should report any difficulty to us. We will notify
liaisons by e-mail or telephone if it becomes necessary to implement an alternative
posting procedure.
RRC:
Proposed new §91.23(b) specifies
acceptable formats for graphic files; this information helps us advise other
divisions in our agency in advance rather than having to re-key a document
into an acceptable format.
Response:
We agree with the comment.
COMMENTS FOR SUBCHAPTER C, RULEMAKING
RRC:
Proposed new §91.33(a)(1) includes
the statement, "The highest subdivision within a rule is a 'subsection.' You
need not subdivide below this level." Unless this rule is intended to impose
a new requirement that all rules be subdivided, which was not mentioned in
the preamble, it is not accurate. There is no need to subdivide a rule at
all. We suggest that this be reworded as follows:
"(a) You need not subdivide below the section level. If you do subdivide
a rule, then follow the structure and order outlined in paragraphs (1) - (7)
of this subsection when drafting a rule.
"(1) The highest subdivision within a rule is a 'subsection.' You need
not subdivide below this level."
Response:
We disagree with the comment.
This is not a new requirement, and does not differ from current rule format.
The highest subdivision within a rule is a subsection. If a rule contains
only one subsection, it is an implied (a). This is explained in §91.33(a)(1)(B).
The "(a)" is omitted, but it is a subsection--the (a) is implied. This is
the only implied subdivision that exists in the Texas Register rule format.
RRC:
Proposed new §91.34 is just as
confusing as the statute because there is no definition of what constitutes
"the first day." The rule would be much more helpful with clarifying language
in paragraph (1), such as: "In computing a period of days, the first day,
such as the date of publication or the date of filing, is excluded and the
last day is included."
Response:
We agree with the comment. The
section is adopted with change to include the suggested wording.
TEA:
Concerning §91.34(2), how do
holidays or weekends factor into the way of calculating date in §91.34(2)?
Response:
This is a factor only when the
last day of the six-month period before a proposed rule expires falls on a
weekend or holiday. We have added a provision to §91.36(a), How to File
Adopted Rules, that states: "If the last day of the six-month period falls
on Saturday, Sunday, or a legal holiday, you may file the notice of adopted
rulemaking on the next business day." The last sentence in §91.34(2),
Calculation of Dates, and §91.38(d), How to Withdraw a Proposed or Emergency
Rule, now reference this new provision.
RRC:
In the new tables for §§91.22,
91.35, 91.36, and 91.37, the codes for superscript and subscript (currently
in §91.61) are not included. We assume the codes were in §91.61
because they are commonly used and we suggest that these codes be retained
in the tables. In the alternative, we suggest wording be added to the four
new rules stating that if an agency needs to use other codes not specified
in the table, the agency should contact the Texas Register.
Response:
We agree with the comment. The
tables are adopted with the suggested change.
RRC:
In proposed new §91.35, retention
of the explanation of the "no change" protocol (currently in §91.23)
would be helpful. Even though it is not mandatory, when an agency does use
the "no change" designation it must be used properly. Furthermore, it is mandatory
that, upon adoption, the "no change" designation may not be used.
Response:
We agree with the comment. Both §91.35(a)(2),
How to File Proposed Rules, and §91.37(a)(2), How to File Emergency Rules,
now briefly explain how to use "no change" and include an example. We omitted
the "no change" instructions from the proposed rules because it is less important
now that agencies file complete rule text with adopted rulemaking documents.
We no longer rely on proposed text to compile the Texas Administrative Code.
RRC:
In §91.35(l), the proposed exception
seems potentially problematic, unless the exception would permit adoption
of a definition with a different number or letter than was proposed.
Response:
We agree with the comment that
this exception could be problematic, but the provision is not new and does
not differ from current procedure. The exception was introduced in 1998 when
we adopted the rule that restricts an agency from proposing more than one
concurrent amendment per section. To permit an agency to keep definitions
consistent with amendments to other related sections, "a rule that consists
exclusively of definitions" became the exception to the rule. However, agencies
are well-advised to use this exception with caution to avoid adoption of an
incomplete or incorrect version of the definitions section. We update the
Texas Administrative Code from the last adopted rulemaking document filed
with our office. The agency is responsible for the content and must reconcile
any overlapping proposals when it files an adopted rulemaking document for
the definitions section.
RRC:
In §91.36(b), the second sentence
should clarify that "incorporate any changes to the proposed rulemaking text"
includes any editorial changes that the Texas Register editors might have
made to the proposal prior to publication.
Response:
We agree with the comment. The
section is adopted with change to include this clarification. The sentence
now reads: "Incorporate any changes to the proposed rulemaking text, including
any style or format corrections made by the Texas Register."
RRC:
Proposed new §91.36(f) does not
specify including "cross-reference to statute"; it is not clear why that would
not be part of an adoption preamble requirement, if only to confirm what was
in the proposal.
Response:
We agree with the comment that
including the cross-reference to statute is consistent with §91.35(f).
The section is adopted with change to include this clarification.
RRC:
Also, §91.36 does not provide
that the "no change" notation may not be used in the text of an adopted rule.
The preamble says that the rules omit non-mandatory instructions, but this
one is mandatory.
Response:
We agree with the comment. The
section is adopted with change to clarify this requirement. Although proposed
new §91.36(b), How to File Adopted Rules, clearly stated "Submit the
complete text of new and amended rules", we have added even more explicit
language to the adopted rule. As adopted, §91.36(b) now includes the
sentence "Do not designate any portion of the rule text as "(No change.)"
TEA:
In §91.36(e), is the term "fiscal
impact note" the same as "fiscal note" that is reference in §91.35(e)?
Response:
Yes. We agree that this is inconsistent.
The section is adopted with change. The word "impact" is omitted.
RRC:
In §91.37, there is no explanation
of why there is no requirement to include a cross-reference to statute in
an emergency rule adoption. Emergency rules are valid, and they do not seem
to be excepted from the matters that are required to be cross-referenced to
statute pursuant to Texas Government Code, §2002.011.
Response:
We agree with the comment. The
section is adopted with change to include this clarification.
TEA:
It appears that §91.39(c) requires
an agency to submit only an adopted filing in the event of a court order invalidating
a rule rather than going through the proposal stage, which would include a
30-day public comment period. Is this the intent?
Response:
The intent of this subsection
is to establish a filing procedure that would be consistent with court remands
under the Government Code, §2001.40. For example, if the court directs
an agency to clarify the reasoned justification for a rule, the agency might
determine that publishing a revised adoption notice would satisfy the court's
order. On the other hand, if the court invalidates the rule and directs an
agency to start over, then an agency might determine that it would be appropriate
to repeal the rule and propose a new rule. The section is adopted with change
to clarify this.
TDH:
Concerning §91.39(a), Rule Transfers
and Invalid Rules, the Health and Human Services Commission (HHSC) is authorized
to organize and reorganize Medicaid programs among the various health and
human services agencies. The laws regarding HHSC are not "legislation (that)
transfers rulemaking authority" expressly as stated in the proposed rule.
Subsection (a) should be broadened to include "if legislation authorizes the
transfer of a program to your agency from another agency."
Response:
We disagree with the comment.
The transfer procedure described under §91.39(a) applies to specific
legislative directives. This section does not establish a deadline for filing
a notice of transfer, but in practice state agencies typically have completed
the transfer of rules from within one month to one year of the effective date
of the legislation authorizing the transfer. The comment appears to suggest
that an agency might reorganize its rules from time to time by publishing
notice of an administrative transfer rather than following rulemaking procedures.
The transfer notice should not be used to circumvent the rulemaking process.
RRC:
In proposed §91.40(d), it is
not clear why state and federal rules are excepted from the requirement that
the newer version be adopted by reference. We think it is the better practice
to cite the date and to amend the rule to adopt the newer version, and we
assume that this rule would not operate as a prohibition on doing so.
Response:
We agree with the comment. The
section is adopted with change to omit the exception
RRC:
Proposed §91.41(b) needs to include
the instructions for naming graphic files; we recommend retaining the graphic
file naming procedures in current §91.77.
Response:
We agree with the comment. The
section is adopted with the suggested change.
RRC:
Proposed §91.41(e) omits the
word "corner" in the first sentence: "(e) Include in the upper left hand corner
of each electronic graphic file. . . ."
Response:
We agree with the comment. The
section is adopted with the suggested change.
RRC:
Concerning §91.41(h), because
the instructions for using the "no change" protocol have been omitted from
these rules, and because a new rule would not be eligible for use of the "no
change" protocol in any event, the last sentence of §91.41(h) makes no
sense: "When you propose or adopt a new rule, submit any associated graphics
and do not mark the figure line as "(No change.)"
Response:
We agree with the comment. The
"no change" provision is restored to the adopted rules.
TEA:
Section 91.41(j)--For readability,
the word "in" should be added to §91.41(j) just before the reference
to §91.35(f).
Response:
We agree with the comment. The
section is adopted with the suggested change.
COMMENTS FOR SUBCHAPTER D, RULE REVIEW
TDH:
In §97.71(b), Scope of Rule Review,
the proposed rule states that "Agencies may follow the procedures" relating
to notice of intention to review and notice of readoption. Law does not require
these two notices. Please add language to acknowledge that these notices are
not legally required.
Response:
Compliance with the procedures
in Subchapter D of this Chapter, concerning Review of Agency rules, remains
discretionary. Section 91.71(b) states that agencies
"may"
follow the procedures. We believe the procedures are beneficial.
These procedures permit an agency to distinguish
reviewing
rules (to assess whether the reasons for initially adopting
the rule continue to exist) and
adopting
rules
(to state an agency's policy). The procedures further provide a cumulative
tracking or progress report of rule review. The alternative would be to examine
each published rulemaking preamble to verify whether an agency had addressed
rule review as part of its notice for a proposal or adoption of amended, repealed
or new rules.
TEA:
Relating to §91.73(a)(1) and §91.74(c)(1),
should the part number be reflected on the submission form rather than in
the notice of proposed or adopted review preamble, as is the case for proposed/adopted
rule filings?
Response:
We agree with the comment. The
section is adopted with the suggested change.
TEA:
According to §91.73(a)(2), will
agencies now be required to include "an assessment by the agency as to whether
the reason for adopting or readopting the chapter continues to exist" in the
notice of proposed review? This seems premature at this stage.
Response:
We agree with the comment. The
section is adopted to omit this paragraph.
RRC:
Proposed new §91.74(b) allows
an agency to review multiple chapters, subchapters, divisions, or sections,
but limits the posting of a Review Date to that which confirms completion
of the review of an entire chapter. A Review Date that is only the date an
agency completes the review of all rules within a chapter can be misleading,
since rules within a chapter could have different actual Review Dates. This
seems inconsistent with Texas Government Code, §2001.039, which pertains
to individual rules.
Response:
We agree with the comment that
the section as proposed needs clarification. Paragraph (1) of §91.74(b)
states "The Review Date is the filing date of the notice of readoption unless
an agency specifies an earlier date...." The section is adopted with change
to add the word "Chapter" to the term "Review Date." This change also will
be reflected in the TAC database. The Chapter Review Date is the date specified
by an agency that review of a chapter is complete.
TDH:
In §91.74(b), Notice of Readoption
(Adopted Review), since sections in a chapter can be reviewed at different
times under Government Code, §2001.039, sections in the same chapter
could have different dates for the four year review required by Government
Code, §2001.039. Please define "Review Date." If this is the date which
begins the four year period for the next review, establishing dates by chapter,
rather than by section, will result in false dates and will not meet the legal
requirements of Government Code, §2001.039. In order to ensure the SOS
does not give out inaccurate information, a review date should be established
by each section, not chapter.
Response:
We disagree with the recommendation
to establish individual review dates for each section because such an undertaking
would be cumbersome without providing additional information. Effective dates
for individual sections are included under the existing procedures in Subchapter
C of this chapter, concerning Rulemaking. An agency that determines to conduct
rule review by republishing each rule, section by section, may do so under
the existing procedures.
TDH:
In §91.74, Notice of Readoption
(Adopted Review), under Government Code, §2001.039, a rule is to be reviewed
by four years from the date the rule takes effect, not the date of publication
of a notice of readoption. If the review date is intended to reflect the start
of the four years, using the date of the notice of readoption gives a false
date and does not meet the requirements of Government Code, §2001.039.
Response:
We agree with the comments that
the section, as proposed, needs clarification. The section is adopted with
changes to clarify the meaning of "Review Date." This change will be reflected
in the TAC database, as well as in the text of the adopted rule. Section 91.74(b)(1)
as adopted with changes will read as follows.
"The Chapter Review Date is the filing date of an adopted review notice,
which states that the review of a chapter is complete. An agency may specify
an earlier date, such as the first date on which an agency reviewed any portion
of a chapter. The Chapter Review Date does not represent the "effective date"
of a rule under the Government Code, §2001.036 (typically 20 days after
filing), nor does it represent the "effective date" under §1.11(c) of
Acts 1999, 76th Legislature, Chapter 1499, Senate Bill 178 (the date on which
the state agency begins the review of the rule)."
The purpose of the Chapter Review Date is to report on the status of rule
review for all state agencies. For past reports, we were asked to list the
state agencies which had completed rule review. We were not asked to report
section-by-section effective dates.
NONSUBSTANTIVE CHANGES
In the process of revising the new chapter in response to public comment,
we decided to make additional minor changes to the rules.
We changed the definition of "preamble" in §91.2(9) to read "Preamble--A
narrative introduction to a notice of rulemaking that conforms to the requirements
of the Government Code, §§2001.024, 2001.033, and 2001.034, for
proposed, adopted, and emergency rules. Two or more rulemaking documents may
have a single or 'common' preamble, as long as they share the same chapter
and fiscal note." The reference to the Government Code statutes clarifies
the preamble requirements outlined in more detail in Subchapter C.
We changed the term "section number" to "rule number" in §§91.32,
91.73, and 91.74 in instances where it was being used inconsistently. We also
changed the name of §91.32 to "Rule Numbers," which is more apt than
"Numbering Schemes."
Subchapter A. ADMINISTRATIVE
1 TAC §§91.1, 91.3, 91.5, 91.7, 91.9, 91.11, 91.13 - 91.15, 91.17, 91.19, 91.21, 91.23, 91.25, 91.27, 91.29, 91.31
Statutory Authority: Government Code, §2002.017.
Cross-reference to Statute: Government Code, Chapters 551, 2001, 2002,
and 2254.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on March 3, 2003.
TRD-200301518
Geoffrey S. Connor
Assistant Secretary of State
Office of the Secretary of State
Effective date: March 23, 2003
Proposal publication date: December 27, 2002
For further information, please call: (512) 463-5562
1 TAC §§91.61 - 91.63, 91.65 - 91.67, 91.69, 91.71, 91.73, 91.75, 91.77
Statutory Authority: Government Code, §2002.017.
Cross-reference to Statute: Government Code, Chapters 551, 2001, 2002,
and 2254.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on March 3, 2003.
TRD-200301519
Geoffrey S. Connor
Assistant Secretary of State
Office of the Secretary of State
Effective date: March 23, 2003
Proposal publication date: December 27, 2002
For further information, please call: (512) 463-5562
1 TAC §91.121, §91.122
Statutory Authority: Government Code, §2002.017.
Cross-reference to Statute: Government Code, Chapters 2001 and 2002.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on March 3, 2003.
TRD-200301520
Geoffrey S. Connor
Assistant Secretary of State
Office of the Secretary of State
Effective date: March 23, 2003
Proposal publication date: December 27, 2002
For further information, please call: (512) 463-5562
1 TAC §§91.131, 91.133, 91.135, 91.137
Statutory Authority: Government Code, §2002.017.
Cross-reference to Statute: Government Code, §2001.039.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on March 3, 2003.
TRD-200301521
Geoffrey S. Connor
Assistant Secretary of State
Office of the Secretary of State
Effective date: March 23, 2003
Proposal publication date: December 27, 2002
For further information, please call: (512) 463-5562
Subchapter A. GENERAL
1 TAC §§91.1 - 91.7
Statutory Authority: Government Code, §2002.017.
Cross-reference to statute: Government Code, Chapters 551, 2001, 2002,
and 2254.
§91.1.Purpose.
(a)
The
Texas Register
is the
official bulletin for:
(1)
notices of state agency rulemaking;
(2)
other notices defined in the Government Code, §2002.011;
(3)
open meeting notices defined in the Government Code, Chapter
551; and
(4)
notices of major consulting services contracts defined
in the Government Code, Chapter 2254.
(b)
The Secretary of State publishes the
Texas Register
in print and on the Internet and provides an electronic
bulletin board for open meeting notices posted by state agencies and certain
regional authorities. The Secretary of State also publishes the Texas Administrative
Code, a compilation of current state agency rules, on the Internet.
(c)
The Secretary of State's role in agency rulemaking is to
prescribe the requirements for document format and style, administrative filing
procedures, and publication. The Secretary of State is not responsible for
rule content and legal authority.
(d)
The Texas Register office is located at 1019 Brazos, Room
245, in Austin. Our mailing address is P.O. Box 13824, Austin, TX 78711-3824.
Contact us by telephone at (512) 463-5561, by fax at (512) 463-5569, or by
e-mail at subadmin@sos.state.tx.us. Our web site address is www.sos.state.tx.us.
§91.2.Definitions.
The following words and terms, when used in this chapter, have the
following meanings, unless the context clearly indicates otherwise.
(1)
APA--Administrative Procedure Act, Government Code, Chapter
2001.
(2)
Agency--A state officer, board, commission, or department
with statewide jurisdiction that makes rules or determines contested cases
other than an agency wholly financed by federal money, the legislature, the
courts, or an institution of higher education.
(3)
Certify--To confirm that documents have been reviewed by
legal counsel to determine that the rule action is within the agency's legal
authority to adopt or that the rule action is a valid exercise of the agency's
legal authority.
(4)
Certifying official--An individual authorized by an agency
to certify documents submitted for filing with the Texas Register, as authorized
by the Government Code, §2002.020, concerning Certification.
(5)
Electronic file--An electronic text file consisting of
either one or more miscellaneous documents or one or more rulemaking documents
submitted for publication in the
Texas Register
.
(6)
Graphic material--Charts, maps, spread sheets, pictures,
equations, tables of two or more columns, or any other type of information
that requires special formatting to be reproduced in the
Texas Register
.
(7)
Liaison--An individual designated by an agency to act as
its representative to the Texas Register, as authorized by the Government
Code, §2002.021, concerning Agency Liaison.
(8)
Miscellaneous document--A nonrulemaking notice that is
submitted for publication in the "In Addition" section of the
Texas Register
.
(9)
Preamble--A narrative introduction to a notice of rulemaking
that conforms to the requirements of the Government Code, §§2001.024,
2001.033, and 2001.034, for proposed, adopted, and emergency rules. Two or
more rulemaking documents may have a single or "common" preamble, as long
as they share the same chapter and fiscal note.
(10)
Rule--Any agency statement of general applicability that
implements, interprets, or prescribes law or policy or describes the procedure
or practice requirements of an agency. It includes the amendment or repeal
of a prior rule, but does not include a statement regarding only the internal
management of a state agency not affecting private rights or procedures.
(11)
Rulemaking document--Notice of proposed rulemaking, adopted
rulemaking, emergency rulemaking, or withdrawn rulemaking. In the context
of rulemaking notices, a "rulemaking document" may be referred to as a "document."
If a group of rulemaking notices share a common preamble as defined in paragraph
(9) of this section, each separate notice is still considered to be a "rulemaking
document."
(12)
Section--A specific numbered rule in the Texas Administrative
Code.
(13)
Signature--A signature required by Government Code, §2002.016,
Filing Procedures. It is not limited to the cursive writing of a signer's
name, but may be electronic, printed, typed, stamped, or faxed, as authorized
by the certifying official and liaison.
(14)
TAC--The Texas Administrative Code, as established by
the Government Code, Chapter 2002.
(15)
Text only--The electronic file format required by the
Texas Register in document submissions. Text only (.txt) excludes formatting
such as indentations, type styles, and special characters.
(16)
TRD number--The Texas Register docket number assigned
to each document.
(17)
Verify--To confirm that submitted documents have been
reviewed by the agency liaison and are correct in format, structure, and content.
§91.3.Liaison and Certifying Official.
(a)
An agency must designate a liaison or liaisons in writing.
(b)
The Texas Register will issue a User Name and Password
to agency liaisons. This User Name and Password will allow the liaison to
access submission forms and to post open meeting notices on the Secretary
of State's web site.
(c)
The certifying official indicates that he or she has certified
a document by signing the submission form that accompanies any document submitted
for publication in the
Texas Register
. The
liaison indicates that he or she has verified that the document meets Texas
Register filing requirements by signing the submission form.
(d)
After submitting a document, the liaison must be available
to answer questions about the document.
(e)
It is the liaison's responsibility to keep his or her Texas
Register account information current.
§91.4.Acceptance or Refusal of a Document.
When we receive a document submission form in the Texas Register office,
we stamp it with the date, time of receipt, and a Texas Register docket (TRD)
number. We also write on the form the date of the issue in which the document
will be published if it meets our requirements. We then fax an "acknowledgment
of receipt" copy of the form back to the agency liaison.
(1)
If we find that the document and submission form conform
to statutory filing requirements and the rules of this chapter, we accept
it for filing and publication in the
Texas Register
. The date of receipt becomes the date of filing.
(2)
If we find that the document or submission form does not
conform to statutory filing requirements or the rules of this chapter, we
may refuse to accept it for filing and publication. If we refuse the document,
we will notify the agency liaison in writing and explain why it was refused.
§91.5.Corrections of Error and Omissions.
(a)
Notify us in writing if the Texas Register publishes your
agency's document with an error or omission.
(b)
Include the following information in the notification:
(1)
the agency name;
(2)
the date of the issue and the specific section of the
(3)
the nature of the error, and whether it was made by the
Texas Register or by the submitting agency.
(c)
We publish corrections of errors in the "In Addition" section
of the
Texas Register
.
(d)
After the effective date of a rule, we will not accept
a correction that conflicts with the text on file with the Secretary of State.
(e)
Except as provided in subsection (d) of this section, we
will publish a correction in the next available issue of the
Texas Register
. If the Texas Register inadvertently omits a proposed
rule from an issue, the 30-day notice period will not begin until the rule
is actually published. Otherwise, determination of adequate notice is an agency's
responsibility.
§91.6.Publication Deadlines.
(a)
The Texas Register publishes 52 issues yearly, excluding
indexes. Friday is the day of publication.
(b)
Rule filing deadline: 12:00 noon, Monday, the week before
publication. Miscellaneous document filing deadline: 12:00 noon, Wednesday,
the week before publication. When a state holiday falls on Monday or Wednesday,
the deadline will be the day before Monday or Wednesday that is not a Saturday,
Sunday, or state holiday.
(c)
We will post the publication schedule on our web site.
We will notify agencies in advance of any changes that occur in the deadline
and publication schedule by publishing a notice in the "In Addition" section
of the
Texas Register
.
§91.7.Subscription Rates and Individual Copies.
(a)
The price of a
Texas Register
subscription, either on an annual or six-month basis, will not exceed
the cost of publication and mailing. We will adjust print subscription rates
from time to time to offset changes in costs incidental to publication and
postage.
(b)
As mandated by the Government Code, §2002.057, concerning
Electronic Availability of Administrative Code, the
Texas Register
provides to the public "specialized value-added services"
in the form of electronic subscriptions to e-mail notification, a historical
document archive, and search capabilities across the Texas Administrative
Code and
Texas Register
. We post subscription
information about these services on our web site.
(c)
The Secretary of State will approve all rate changes.
(d)
We sell individual copies of the print
Texas Register
, if available, for a price not to exceed the cost of
publication and mailing. Current prices are published in the
Texas Register
inside front cover.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on March 3, 2003.
TRD-200301522
Geoffrey S. Connor
Assistant Secretary of State
Office of the Secretary of State
Effective date: March 23, 2003
Proposal publication date: December 27, 2002
For further information, please call: (512) 463-5562
1 TAC §§91.21 - 91.24
Statutory Authority: Government Code, §2002.017.
Cross-reference to Statute: Government Code, Chapters 551, 2166, and 2254
and Insurance Code, Chapter 5, Subchapter L.
§91.21.How to File an Open Meeting Notice.
(a)
The Texas Open Meetings Law, Government Code, Chapter 551,
governs the posting of open meeting notices.
(1)
In accordance with the Government Code, §551.044,
statewide agencies that post open meeting notices with the Secretary of State
must give at least seven days' notice before the time of meeting. The Secretary
of State interprets the seven-day posting requirement to mean seven full 24-hour
periods before the day of the meeting. The day of posting and the day of the
meeting are not included in calculating the seven-day period.
(2)
In accordance with the Government Code, §551.043,
non-statewide government bodies that post open meeting notices with the Secretary
of State must give at least 72 hours' notice before the time of meeting.
(3)
In the case of emergency or urgent public necessity, the
Government Code, §551.045, excepts statewide and non-statewide agencies
from the notice requirements in paragraphs (1) and (2) of this subsection.
If an emergency or urgent public necessity arises, an agency must give at
least two hours' notice of an open meeting or revision to an open meeting
agenda and clearly identify the emergency or urgent public necessity that
exists.
(b)
The Texas Register will issue a User Name and Password
to agency liaisons to access the Open Meetings Submit Form on the Secretary
of State's web site. In order to post an open meeting notice, you must:
(1)
enter all required information into the form;
(2)
include the agenda as text in the appropriate field of
the web form; and
(3)
click on the button labeled "Insert" to complete submission.
(c)
An open meeting posting may generate one of the following
acknowledgments or messages.
(1)
An Acknowledgment of Receipt message indicating that the
submission has been accepted and posted to the Secretary of State's web site.
The message gives the agency name, the board or committee holding the meeting,
the time and date of the meeting and the TRD number.
(2)
An Acknowledgment of Receipt message indicating that the
submission has been accepted and posted to the Secretary of State's web site
but fails to meet the seven-day or 72-hour deadline. The message will give
the agency name, the board or committee, the time and date of the meeting
and the TRD number.
(d)
Although the Open Meetings Law does not require notice
of cancellation of a previously posted meeting, you may cancel an open meeting
using the Open Meetings Cancellation option on the Secretary of State's web
site.
(e)
You may post a revision to an open meeting notice as you
would a new open meeting notice except that you reference the original meeting's
TRD number in the appropriate field.
(f)
Do not include graphics in an open meeting notice.
(g)
Do not submit an open meeting notice earlier than the 90th
calendar day before the meeting date.
(h)
If a meeting is to be held on consecutive days, post each
day as a separate open meeting notice.
(i)
Although the Open Meetings Submit Form is available to
liaisons at all times, you will be able to contact Texas Register staff for
assistance in posting open meeting notices only during normal business hours.
If we anticipate that our web site will be off-line for an extended period
of time, we will notify liaisons of an alternate means of posting open meeting
notices.
§91.22.How to File a Miscellaneous Document.
(a)
We publish miscellaneous documents in the "In Addition"
section of the
Texas Register
. If publication
of a notice of general interest is not required by statute, the Texas Register
may publish it as space and time allow.
(b)
Draft the text of the document using the following codes:
(c)
Save the text of the document in "Text Only (*.txt)" format.
Name the file using the month and date of submission followed by a decimal
point and the agency code assigned by the Texas Register. If you submit more
than one file on the same day, insert a letter in sequence after the date
and before the decimal point. For example: The file name 0715.004 indicates
that a file was sent on July 15 by the Office of the Secretary of State while
the names 0715a.004 and 0715b.004 indicate a second and third file were sent
on the same day. If you are using e-mail, include the file name in the subject
line. You may submit more than one miscellaneous or nonrulemaking document
in an electronic file.
(d)
Submit the file using either e-mail or ftp (file transfer
protocol).
(e)
If the miscellaneous document includes a graphic, submit
the graphic file electronically in compliance with §91.23 of this title
(relating to How to File Miscellaneous Graphics).
(f)
Complete a Miscellaneous Document form. Access the form
on the Texas Register web site under the link "For Liaisons Only" using the
User Name and Password described in §91.3(b) of this title (relating
to Liaison and Certifying Official). Submit the form either:
(1)
electronically over the web; or
(2)
by fax to the Texas Register office.
§91.23.How to File Miscellaneous Graphics.
(a)
If a miscellaneous document has an associated graphic as
defined in §91.2 of this title (relating to Definitions), name the graphic
file as follows: "date of submission"_"Texas Register agency code"-x."file
extension." Example: 0310_004-1.pdf denotes the first graphic file submitted
on March 10 by the Secretary of State.
(b)
Use e-mail or file transfer protocol (ftp) to submit it
to the Texas Register.
(c)
Mark on the submission form that the miscellaneous document
has an associated graphic. Indicate the name of the graphic file and whether
it was submitted via e-mail or ftp.
(d)
We accept only the following formats for graphic files:
(1)
Word documents (.doc extension);
(2)
Word Perfect documents (.wpd extension);
(3)
Hypertext Markup Language (.htm or .html extension);
(4)
image files (.gif, .tif, .jpg, and .bmp extensions); and
(5)
Adobe Acrobat files (.pdf extension).
(e)
Do not use the tab function in Word or Word Perfect to
create tables.
(f)
If we are unable to use the electronic file for any reason,
we will require you to supply hard copy of the graphic.
§91.24.How to Submit Executive Orders, Opinions, and Exempt Filings.
(a)
The Texas Register publishes:
(1)
executive orders, appointments, and proclamations filed
by the Office of the Governor;
(2)
summaries of requests for opinions and summaries of opinions
filed by the Texas Ethics Commission;
(3)
summaries of requests for opinions, summaries of opinions,
and open records decisions filed by the Office of the Attorney General; and
(4)
notices of proposed and final actions filed by the Texas
Department of Insurance pursuant to the Insurance Code, Chapter 5, Subchapter
L.
(b)
File the documents listed in subsection (a) of this section
using the guidelines in §91.22 of this title (relating to How to File
a Miscellaneous Document), but use the electronic submission forms specified
for these documents.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on March 3, 2003.
TRD-200301523
Geoffrey S. Connor
Assistant Secretary of State
Office of the Secretary of State
Effective date: March 23, 2003
Proposal publication date: December 27, 2002
For further information, please call: (512) 463-5562
1 TAC §§91.31 - 91.41
Statutory Authority: Government Code, §2002.017.
Cross-reference to Statute: Government Code, Chapters 2001 and 2002.
§91.31.Classification Systems.
(a)
Use the following classification structure when drafting
rules.
(1)
We assign each agency to a title identified by a number
and subject category. Example: Title 1, Administration.
(2)
We assign each agency a part number to identify the agency
within its title. The name of the part is the agency's name. Example: Part
4, Office of the Secretary of State.
(3)
We assign a range of chapter numbers to each agency. Within
that range, organize and name the chapters according to subject matter. Example:
Chapter 91, Texas Register.
(4)
You may subdivide a chapter into subchapters identified
by capital letters. Name subchapters according to subject matter. Example:
Subchapter C, Rulemaking.
(5)
You may subdivide a subchapter into divisions identified
by numbers. Name subdivisions according to subject matter. Example: Division
1, Administration.
(b)
Do not indicate chapters, subchapters, divisions, rule
numbers, or portions of rules as reserved for future use.
§91.32.Rule Numbers.
A rule number consists of the chapter number followed by a decimal
point and the individual section number. Example: §91.15. Neither the
chapter number nor the section number may exceed four digits. Comply with
paragraphs (1) - (3) of this section when you draft and submit rulemaking
documents.
(1)
The proposed and adopted version of a rule must have the
same rule number.
(2)
Do not amend rule numbers. To change a rule number, repeal
and replace the rule.
(3)
Do not propose a new rule that uses the number of a rule
in TAC before you propose the repeal of the earlier rule. Do not adopt a new
rule that uses the number of a rule in TAC before you adopt the repeal of
the earlier rule. You may submit the repeal and new actions simultaneously.
§91.33.Rule Structure and Terminology.
(a)
Follow the structure and order outlined in paragraphs (1)
- (7) of this subsection when drafting a rule.
(1)
The highest subdivision within a rule is a "subsection."
You need not subdivide below this level.
(A)
When there are two or more subsections, designate them
with a lowercase letter in parenthesis. Example: (a), (b), etc.
(B)
When there is only one subsection in a section, omit the
"(a)." This is referred to as an "implied (a)."
(2)
The rule subdivision below a subsection is called a "paragraph"
and is designated by an Arabic number in parenthesis. Example: (1), (2), etc.
(3)
The rule subdivision below the paragraph is called a "subparagraph"
and is designated by a capital letter in parenthesis. Example: (A), (B), etc.
(4)
The rule subdivision below the subparagraph is called a
"clause" and is designated by a lowercase Roman numeral in parenthesis. Example:
(i), (ii), etc.
(5)
The rule subdivision below the clause is called a "subclause"
and is designated by a capitalized Roman numeral in parenthesis. Example:
(I), (II), etc.
(6)
The rule subdivision below the subclause is called an "item"
and is designated by a lowercase letter with a dash on both sides in parenthesis.
Example: (-a-), (-b-), etc.
(7)
The rule subdivision below the item is called a "subitem"
and is designated by an Arabic numeral with a dash on both sides in parenthesis.
Example: (-1-), (-2-), etc.
(b)
When drafting a rule, do not create a lone subdivision
at any level, except for an "implied (a)." For example, a rule may not have
a paragraph (1) without a (2), a subparagraph (A) without a (B), and so forth.
§91.34.Calculation of Dates.
We compute dates related to rulemaking submissions according to the
Government Code, §311.014, concerning Computation of Time.
(1)
In computing a period of days, the first day, such as the
date of publication or date of filing, is excluded and the last day is included.
(2)
If a number of months is to be computed by counting the
months from a particular day, the period ends on the same numerical day in
the concluding month as the numerical day of the earlier date. If there are
not as many days in the concluding month as in the beginning month, the period
ends on the last day of the concluding month. (Also see §91.36(a) of
the title (relating to How to File Adopted Rules).)
§91.35.How to File Proposed Rules.
(a)
Draft new or amended rules according to the structure outlined
in §91.33 of this title (relating to Rule Structure and Terminology).
You may group proposed new and/or amended rules into one rulemaking document
as long as they share the same chapter, subchapter and division.
(1)
Submit the complete text of a new rule.
(2)
When you propose to amend an existing rule, put new language
before obsolete language. You must account for all existing language, but
you may omit the text of one or more subdivisions that are not being changed
and replace it with the phrase "(No change.)" Examples: "(a) (No change.)";
"(1) - (3) (No change.)" However, when you propose to amend the text of a
subdivision, you must submit the complete text for every higher subdivision.
Example: If subparagraph (B) under subsection (a)(3) is amended, the entire
text of subsection (a) and paragraph (3) must be included in the document
although only subparagraph (B) is being amended. Do not designate an "implied
(a)" as "(No change.)"
(b)
When proposing to repeal existing rules, list the rule
numbers and titles but omit the rule text. You may group proposed repeals
into one rulemaking document as long as they share the same chapter, subchapter
and division.
(c)
Draft a proposed rule preamble that conforms to the Texas
Government Code, §2001.024, concerning Content of Notice. The first paragraph
of the preamble should state the name of your agency, the type of rulemaking
action you are proposing (new, amendment, or repeal), and every section that
is affected. Include any other statement that your agency determines is required
by law.
(d)
You may submit one preamble for all proposed rulemaking
documents which share the same chapter and fiscal note. The "common preamble"
accompanies the document with the lowest rule number. If a repeal and new
rule document have the same number, the common preamble accompanies the repeal.
The common preamble addresses all the affected rules; however, each rule document
has its own statutory authority note.
(e)
In a separate paragraph after the preamble, list the statutory
or other authority under which the rule is proposed and the statutory section
or article that the rule implements. For example: "Statutory Authority: Government
Code, §2002.017. Cross-reference to Statute: Government Code, Chapter
2002."
(f)
When you draft the proposed rule document in a word processing
program, use a hard return at the end of every paragraph and rule subdivision
and make sure that every line of text is flush with the left margin. Format
preamble and rule text using the following codes:
(g)
Save the text of the document in "Text Only (*.txt)" format.
Name files using the month and date of submission followed by a decimal point
and the agency code assigned by the Texas Register. If you submit more than
one file on the same day, insert a letter in sequence after the date and before
the decimal point. For example: The file name 0715.004 indicates that a file
was sent on July 15 by the Office of the Secretary of State while the names
0715a.004 and 0715b.004 indicate a second and third file were sent on the
same day. If you are using e-mail, include the file name in the subject line.
You may submit more than one rulemaking document in an electronic file.
(h)
Submit the file using either e-mail or ftp (file transfer
protocol).
(i)
If the proposed rulemaking document includes a graphic,
submit the graphic file electronically in compliance with §91.41 of this
title (relating to How to Submit Rule Graphics).
(j)
Complete one Proposed Rulemaking form for each proposed
rulemaking document. Access the form on the Texas Register web site under
the link "For Liaisons Only" using the User Name and Password described in §91.3(b)
of this title (relating to Liaison and Certifying Official). Submit the form
either:
(1)
electronically over the web; or
(2)
by fax to the Texas Register office.
(k)
Do not propose to amend a rule until any pending proposed
action on that rule has been adopted and taken effect or has been withdrawn.
The only exception is a rule that consists exclusively of definitions.
§91.36.How to File Adopted Rules.
(a)
At least 30 days after publication of a proposed rulemaking
document but not more than six months later, you may submit an adopted rulemaking
document. If the last day of the six-month period falls on Saturday, Sunday,
or a legal holiday, you may file the adopted rulemaking document on the next
business day. The APA states that a rule takes effect 20 days after the date
on which it is filed in the Office of the Secretary of State unless a later
date is required by statute, specified in the rule, or required by federal
mandate.
(b)
Draft new or amended rules according to the structure outlined
in §91.33 of this title (relating to Rule Structure and Terminology).
Incorporate any changes to the proposed rule text, including any style or
format corrections made by the Texas Register. Delete any new language coding,
brackets and obsolete language. Submit the complete text of new and amended
rules. Do not designate any portion of the rule text as "(No change.)" You
may group adopted new and/or amended rules into one rulemaking document as
long as they share the same chapter, subchapter and division.
(c)
When adopting the repeal of existing rules, list the rule
numbers and titles but omit the rule text. You may group adopted repeals into
one rulemaking document as long as they share the same chapter, subchapter
and division.
(d)
Draft an adopted rule preamble that conforms to the Texas
Government Code, §2001.033, concerning State Agency Order Adopting Rule.
The first paragraph of the preamble should state the name of your agency,
the type of rulemaking action you are adopting (new, amendment, or repeal),
every section that is affected, and whether the sections are adopted with
or without changes from the proposed rulemaking document. Cite the issue date
and page number of the
Texas Register
in which
the proposed rulemaking document was published. Include any other statement
that your agency determines is required by law.
(e)
You may submit one preamble for all adopted rulemaking
documents that share the same chapter and fiscal note. The "common preamble"
accompanies the document with the lowest rule number. If a repeal and new
rule document have the same number, the common preamble accompanies the repeal.
The common preamble addresses all the affected rules; however, each rule document
has its own statutory authority note.
(f)
In a separate paragraph after the preamble, list the statutory
or other authority under which the rule is proposed and the statutory section
or article that the rule implements. For example: "Statutory Authority: Government
Code, §2002.017. Cross-reference to Statute: Government Code, Chapter
2002."
(g)
When you draft an adopted rule document in a word processing
program, use a hard return at the end of every paragraph and rule subdivision
and make sure that every line of text is flush with the left margin. Format
preamble and rule text using the following codes:
(h)
Save the text of the document in "Text Only (*.txt)" format.
Name files using the month and date of submission followed by a decimal point
and the agency code assigned by the Texas Register. If you submit more than
one file on the same day, insert a letter in sequence after the date and before
the decimal point. For example: The file name 0715.004 indicates that a file
was sent on July 15 by the Office of the Secretary of State while the names
0715a.004 and 0715b.004 indicate a second and third file were sent on the
same day. If you are using e-mail, include the file name in the subject line.
You may submit more than one rulemaking document in an electronic file.
(i)
Submit the file using either e-mail or ftp (file transfer
protocol).
(j)
If the adopted rulemaking document includes a graphic,
submit the graphic file electronically in compliance with §91.41 of this
title (relating to How to Submit Rule Graphics).
(k)
Complete one Adopted Rulemaking form for each adopted rulemaking
document. Access the form on the Texas Register web site under the link "For
Liaisons Only" using the User Name and Password described in §91.3(b)
of this title (relating to Liaison and Certifying Official). Submit the form
either:
(1)
electronically over the web; or
(2)
by fax to the Texas Register office.
§91.37.How to File Emergency Rules.
(a)
Draft new or amended emergency rules according to the structure
outlined in §91.33 of this title (relating to Rule Structure and Terminology).
You may group new and/or amended emergency rules into one rulemaking document
as long as they share the same chapter, subchapter and division.
(1)
Submit the complete text of a new emergency rule.
(2)
When you propose an emergency amendment to an existing
rule, put new language before obsolete language. You must account for all
existing language, but you may omit the text of one or more subdivisions that
are not being changed and replace it with the phrase "(No change.)" Examples:
"(a) (No change.)"; "(1) - (3) (No change.)" However, when you propose to
amend the text of a subdivision, you must submit the complete text for every
higher subdivision. Example: If subparagraph (B) under subsection (a)(3) is
amended, the entire text of subsection (a) and paragraph (3) must be included
in the document although only subparagraph (B) is being amended. Do not designate
an "implied (a)" as "(No change.)"
(b)
When submitting the emergency repeal of existing rules,
list the rule numbers and titles but omit the rule text. You may group emergency
repeals into one rulemaking document as long as they share the same chapter,
subchapter and division.
(c)
Draft an emergency rule preamble that conforms to the Texas
Government Code, §2001.034, concerning Emergency Rulemaking. In the first
paragraph of the preamble, state the name of your agency, the type of rulemaking
action you are adopting on an emergency basis (new, amendment, or repeal),
and every section that is affected. Include any other statement that your
agency determines is required by law.
(d)
In a separate paragraph after the preamble, list the statutory
or other authority under which the rule is proposed and the statutory section
or article that the rule implements. For example: "Statutory Authority: Government
Code, §2002.017. Cross-reference to Statute: Government Code, Chapter
2002."
(e)
Use the following codes to format preamble and rule text:
(f)
Save the text of the document in "Text Only (*.txt)" format.
Name files using the month and date of submission followed by a decimal point
and the agency code assigned by the Texas Register. If you submit more than
one file on the same day, insert a letter in sequence after the date and before
the decimal point. For example: The file name 0715.004 indicates that a file
was sent on July 15 by the Office of the Secretary of State while the names
0715a.004 and 0715b.004 indicate a second and third file were sent on the
same day. If you are using e-mail, include the file name in the subject line.
You may submit more than one rulemaking document in an electronic file.
(g)
Submit the file using either e-mail or ftp (file transfer
protocol).
(h)
If the emergency rulemaking document includes a graphic,
submit the graphic file electronically in compliance with §91.41 of this
title (relating to How to Submit Rule Graphics).
(i)
Complete one Emergency Rulemaking form for each emergency
rulemaking document. Access the form on the Texas Register web site under
the link "For Liaisons Only" using the User Name and Password described in §91.3(b)
of this title (relating to Liaison and Certifying Official). Submit the form
either:
(1)
electronically over the web; or
(2)
by fax to the Texas Register office.
(j)
Emergency action becomes effective immediately upon filing
or on a stated date less than 20 days after filing. The effective date cannot
be earlier than the filing date. The APA limits the effectiveness of emergency
action to 120 days, renewable for no more than 60 days, for a maximum of 180
days. File the renewal notice during the last 20 days of the original period
of effectiveness. You may not renew the effective period after the expiration
date. The expiration date is the final full calendar day in the count.
(k)
You may not amend an emergency rulemaking action. To change
a new or amended emergency rule before it expires, file a withdrawal of the
action and submit a new emergency rulemaking document. Do not withdraw an
emergency rule and file it a second time for the purpose of extending the
180-day effective period.
§91.38.How to Withdraw a Proposed or Emergency Rule.
(a)
Complete a Withdrawn Rulemaking form. Access the form on
the Texas Register web site under the link "For Liaisons Only" using the User
Name and Password described in §91.3(b) of this title (relating to Liaison
and Certifying Official). Submit the form either:
(1)
electronically over the web; or
(2)
by fax to the Texas Register office.
(b)
You may submit a preamble explaining why the rule is withdrawn,
but it is not required. If you submit a preamble, save it in "Text Only (*.txt)"
format. Name files using the month and date of submission followed by a decimal
point and the agency code assigned by the Texas Register. If you submit more
than one file on the same day, insert a letter in sequence after the date
and before the decimal point. For example: The file name 0715.004 indicates
that a file was sent on July 15 by the Office of the Secretary of State while
the names 0715a.004 and 0715b.004 indicate a second and third file were sent
on the same day. If you are using e-mail, include the file name in the subject
line. You may submit more than one rulemaking document in an electronic file.
Submit the file using either e-mail or ftp (file transfer protocol).
(c)
The withdrawal takes effect immediately upon filing or
at a later date stated on the form.
(d)
If an agency fails to adopt or withdraw a proposed rulemaking
action within six months, the Texas Register will publish a notice of automatic
withdrawal. (Also see §91.36(a) of the title (relating to How to File
Adopted Rules).)
§91.39.Rule Transfers and Invalid Rules.
(a)
Rule transfers (Government Code, §2002.058(a)). If
legislation transfers rulemaking authority to your agency from another agency,
send a letter to the director of the Texas Register, requesting the administrative
transfer of the rules in question. Cite the legislation that requires this
transfer as well as the effective date of the transfer. You will also submit
a rule conversion chart containing the old and new chapters, subchapters and
divisions (if applicable), and rule numbers affected by the transfer.
(1)
Create the conversion chart in Word or Word Perfect. Use
the table format, not tabs.
(2)
Submit the chart to the Texas Register using e-mail or
ftp (file transfer protocol).
(b)
Invalid rules (Government Code, §2002.058(b)). If
a final court judgment renders your agency's rules invalid, you must formally
revise or repeal those rules according to the rulemaking procedures in this
subchapter.
(c)
Remand of rules (Government Code, §2001.040). If a
court remands a rule or portion of a rule, you may determine to revise and
readopt the rule according to the procedures in §91.36 of this title
(relating to How to File Adopted Rules) or submit other appropriate notice
that complies with the court's directive.
§91.40.How to File Adoption by Reference (ABR) Material.
(a)
You may adopt the following documents by reference:
(1)
federal statutes and regulations;
(2)
state statutes and rules;
(3)
publications specifically authorized by statute to be adopted
by reference; and
(4)
forms.
(b)
The director of the Texas Register must approve ABR information
not listed in subsection (a)(1) - (4) of this section before you adopt it
by reference. To be considered for ABR, the information must be cumbersome,
expensive, or otherwise inexpedient to include in the
Texas Register
.
(c)
The text of the ABR information need not conform to the
Texas Register format requirements and will not be published in the
(d)
When adopting by reference, follow the requirements outlined
in this subchapter. Give notice of intention to adopt by reference in the
form of a numbered rule. Note the revision date of the ABR information. Amend
the rule to adopt a newer version of the ABR information.
(e)
You are responsible for maintaining and distributing to
interested parties all versions of the ABR information, including those that
have been superseded or repealed.
§91.41.How to Submit Rule Graphics.
(a)
If a rule document has an associated graphic as defined
in §91.2 of this title (relating to Definitions), name the rule graphic
file as follows: aa_bbbb_cccc-x."file extension." In this scheme, aa denotes
the title number, bbbb denotes the chapter number, cccc denotes the rule number,
and x indicates the number of the graphic file (if there is more than one
accompanying the rule). Example: 01_0091_0001-3.html indicates this is the
third file submitted for Title 1, Chapter 91, rule 1 (1 TAC §91.1). Add
leading zeroes to complete the aa_bbbb_cccc fields, if necessary.
(b)
Use e-mail or file transfer protocol (ftp) to submit it
to the Texas Register.
(c)
Mark on the submission form that the rule document has
an associated graphic. Indicate the name of the graphic file and whether it
was submitted via e-mail or ftp.
(d)
We accept only the following formats for graphic files:
(1)
Word documents (.doc extension);
(2)
Word Perfect documents (.wpd extension);
(3)
Hypertext Markup Language (.htm or .html extension);
(4)
image files (.gif, .tif, .jpg, and .bmp formats); and
(5)
Adobe Acrobat files (.pdf extension).
(e)
If we are unable to use the electronic file for any reason,
we will require you to supply hard copy of the graphic.
(f)
Include in the upper left corner of each electronic graphic
file a label comprised of the word "Figure," the TAC citation, and the level
of the rule that references the graphic. Example: "Figure: 34 TAC §3.334(a)(1)."
The rule text must reference the same label at the appropriate level. Label
a table or graphic within a preamble with the word "Figure," TAC citation,
and the word "preamble." Example: "Figure: 34 TAC Chapter 3 - Preamble."
(g)
Do not refer to the Tables and Graphics section of the
(h)
If the body of a graphic is not being amended, but it is
moving within a rule, resubmit it with its new label in both the proposed
and adopted rule filings.
(i)
If a graphic attached to an amended subdivision is not
changed or deleted, mark it as "(No change.)" Example: "Figure: 34 TAC §3.334(a)(1)
(No change.)" If a subdivision with a graphic was marked "(No change.)" in
the proposed rulemaking, submit the complete text of the adopted rule with
its graphic label designated "(No change.)" When you propose or adopt a new
rule, submit any associated graphics and do not mark the figure line as "(No
change.)"
(j)
When proposing to delete a graphic from a rule, bracket
the figure label within the rule text. Example: [Figure: 34 TAC §3.334(a)(1)].
Do not submit the deleted graphic with the filing.
(k)
Do not use rulemaking codes, as outlined in §91.35(f)
of this title (relating to How to File a Proposed Rule), in graphic material.
Do not use the "tab" function to create tables and equations in Word or Word
Perfect because the tab formatting will be lost in the conversion to html.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on March 3, 2003.
TRD-200301524
Geoffrey S. Connor
Assistant Secretary of State
Office of the Secretary of State
Effective date: March 23, 2003
Proposal publication date: December 27, 2002
For further information, please call: (512) 463-5562
Chapter 81.
ELECTIONS
Chapter 91.
TEXAS REGISTER
Subchapter B. FILING PROCEDURES
Subchapter C. MISCELLANEOUS
Subchapter D. ADMINISTRATIVE RULES REVIEW
Chapter 91.
TEXAS REGISTER
Subchapter B. NONRULEMAKING
Subchapter C. RULEMAKING
Subchapter D. RULE REVIEW