TITLE 22.EXAMINING BOARDS

Part 22. TEXAS STATE BOARD OF PUBLIC ACCOUNTANCY

Chapter 501. RULES OF PROFESSIONAL CONDUCT

Subchapter E. RESPONSIBILITIES TO THE BOARD/PROFESSION

22 TAC §501.93

The Texas State Board of Public Accountancy (Board) proposes an amendment to §501.93 concerning Responses.

The amendment to §501.93 will delete subsection (e) regarding the location where a party to a contested case may be deposed and adds a new subsection (e) that contains an interpretive comment.

William Treacy, Executive Director of the Board, has determined that for the first five-year period the proposed amendment will be in effect:

A. the additional estimated cost to the state expected as a result of enforcing or administering the amendment will be zero.

B. the estimated reduction in costs to the state and to local governments as a result of enforcing or administering the amendment will be zero.

C. the estimated loss or increase in revenue to the state as a result of enforcing or administering the amendment will be zero.

Mr. Treacy has determined that for the first five-year period the amendment is in effect the public benefits expected as a result of adoption of the proposed amendment will be clarification of §501.93, by removal of a subsection that is not relevant.

The probable economic cost to persons required to comply with the amendment will be zero.

Mr. Treacy has determined that a Local Employment Impact Statement is not required because the proposed amendment will not affect a local economy.

The Board requests comments on the substance and effect of the proposed amendment from any interested person. Comments must be received at the Board no later than noon on April 27, 2005. Comments should be addressed to Rande Herrell, General Counsel, Texas State Board of Public Accountancy, 333 Guadalupe, Tower 3, Suite 900, Austin, Texas 78701 or faxed to her attention at (512) 305-7854.

Mr. Treacy has determined that the proposed amendment will not have an adverse economic effect on small businesses because the amendment is not applicable to small businesses.

The Board specifically invites comments from the public on the issues of whether or not the proposed amendment will have an adverse economic effect on small business; if the amendment is believed to have such an effect, then how may the Board legally and feasibly reduce that effect considering the purpose of the statute under which the amendment is to be adopted; and if the amendment is believed to have such an effect, how the cost of compliance for a small business compares with the cost of compliance for the largest business affected by the amendment under any of the following standards: (a) cost per employee; (b) cost for each hour of labor; or (c) cost for each $100 of sales. See Texas Government Code, §2006.002(c).

The amendment is proposed under the Public Accountancy Act ("Act"), Texas Occupations Code, §901.151 which authorizes the Board to adopt rules deemed necessary or advisable to effectuate the Act.

No other article, statute or code is affected by this proposed amendment.

§501.93.Responses.

(a) An applicant, certificate or registration holder shall substantively respond in writing to any communication from the board requesting a response, within 30 days. The board may specify a shorter time for response in the communication when circumstances so require. The time to respond shall commence on the date the communication was mailed, delivered to a courier or delivery service, faxed or e-mailed to the last address, facsimile number, or e-mail address furnished to the board by the applicant, certificate or registration holder.

(b) An applicant, certificate or registration holder shall provide copies of documentation and/or working papers in response to the board's request at no expense to the board within 30 days. The board may specify a shorter time for response in the communication when circumstances so require. The time to respond shall commence on the date the request was mailed, delivered to a courier or delivery service, faxed or e-mailed to the last address, facsimile number or e-mail address furnished to the board by the applicant, certificate or registration holder. An applicant, certificate or registration holder may comply with this subsection by providing the board with original records for the board to duplicate. In such a circumstance, upon request the board will provide an affidavit from the custodian of records documenting custody and control of the records.

(c) Failure to timely respond substantively to written board communications, or failure to furnish requested documentation and/or working papers, constitutes conduct indicating lack of fitness to serve the public as a professional accountant.

(d) Each applicant, certificate holder and each person required to be registered with the board under the Act shall notify the board, in writing, of any and all changes in either such person's mailing address or telephone number and the effective date thereof within 30 days before or after such effective date.

(e) Interpretive Comment. This section should be read in conjunction with §519.6 of this title (relating to Subpoenas).

[ (e) An applicant, certificate or registration holder who is a party to a contested case in a disciplinary action brought by the board may be deposed at the board's offices in Austin, Texas. If the deponent is not a party to a contested case, the board will reimburse the deponent for reasonable expenses incurred to attend the deposition in accordance with §2001.103 of the Texas Government Code. Any deponent may seek a protective order concerning the place of deposition on grounds stated in Texas Rule of Civil Procedure 192.6.]

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 March 24, 2005.

TRD-200501297

Rande Herrell

General Counsel

Texas State Board of Public Accountancy

Earliest possible date of adoption: May 8, 2005

For further information, please call: (512) 305-7848


Chapter 505. THE BOARD

22 TAC §505.1

The Texas State Board of Public Accountancy (Board) proposes an amendment to §505.1 concerning Board Seal and Headquarters.

The amendment to §505.1 will describe and illustrate the official seal of the Texas State Board of Public Accountancy.

William Treacy, Executive Director of the Board, has determined that for the first five-year period the proposed amendment will be in effect:

A. the additional estimated cost to the state expected as a result of enforcing or administering the amendment will be zero.

B. the estimated reduction in costs to the state and to local governments as a result of enforcing or administering the amendment will be zero.

C. the estimated loss or increase in revenue to the state as a result of enforcing or administering the amendment will be zero.

Mr. Treacy has determined that for the first five-year period the amendment is in effect the public benefits expected as a result of adoption of the proposed amendment will be clarification of what elements compose the State Board of Public Accountancy's seal.

The probable economic cost to persons required to comply with the amendment will be zero.

Mr. Treacy has determined that a Local Employment Impact Statement is not required because the proposed amendment will not affect a local economy.

The Board requests comments on the substance and effect of the proposed amendment from any interested person. Comments must be received at the Board no later than noon on April 27, 2005. Comments should be addressed to Rande Herrell, General Counsel, Texas State Board of Public Accountancy, 333 Guadalupe, Tower 3, Suite 900, Austin, Texas 78701 or faxed to her attention at (512) 305-7854.

Mr. Treacy has determined that the proposed amendment will not have an adverse economic effect on small businesses because this amendment does not affect small businesses.

The Board specifically invites comments from the public on the issues of whether or not the proposed amendment will have an adverse economic effect on small business; if the amendment is believed to have such an effect, then how may the Board legally and feasibly reduce that effect considering the purpose of the statute under which the amendment is to be adopted; and if the amendment is believed to have such an effect, how the cost of compliance for a small business compares with the cost of compliance for the largest business affected by the amendment under any of the following standards: (a) cost per employee; (b) cost for each hour of labor; or (c) cost for each $100 of sales. See Texas Government Code, §2006.002(c).

The amendment is proposed under the Public Accountancy Act ("Act"), Texas Occupations Code, §901.151 which authorizes the Board to adopt rules deemed necessary or advisable to effectuate the Act.

No other article, statute or code is affected by this proposed amendment.

§505.1. Board Seal and Headquarters [ of the Board ].

(a) The official seal of the Texas State Board of Public Accountancy illustrated below shall consist of:

(1) a circle with a rope border;

(2) a five point star comprised of five diamond shapes is in the center, with the star placed so that one point is pointed directly at the top, with the remaining points spaced equidistant;

(3) the word "TEXAS" is spelled out placing one capital letter between each point of the star beginning on the left side of the star;

(4) the center star is itself bordered by a circle of dots;

(5) the words "TEXAS STATE" in capital letters appear at the top of the seal in the margin between the dot border and the rope border;

(6) the words "BOARD OF PUBLIC ACCOUNTANCY" in capital letters appear at the bottom of the seal in the margin between the dot border and the rope border;

(7) the background of the seal shall be black; and

(8) all features described is subsections (1) through (6) of this section shall be in gold.

Figure: 22 TAC §505.1(a)(8)

(b) The board seal may be embossed on a solid gold background to place official board records and documents under seal. The board may cause the board seal to be reproduced in other color schemes for use in official board business or board authorized functions or publications. The board seal may not be reproduced or used for non-board business without the express written consent of the board’s Executive Director.

(c) The headquarters and administrative offices of the board shall be at 333 Guadalupe, Tower 3, Suite 900, Austin, Texas 78701-3900.

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 March 24, 2005.

TRD-200501298

Rande Herrell

General Counsel

Texas State Board of Public Accountancy

Earliest possible date of adoption: May 8, 2005

For further information, please call: (512) 305-7848


Chapter 519. PRACTICE AND PROCEDURE

Subchapter A. GENERAL PROVISIONS

22 TAC §519.6

The Texas State Board of Public Accountancy (Board) proposes an amendment to §519.6 concerning Subpoenas.

The amendment to §519.6 will add subsection (c), which specifies that an applicant, certificate, or registration holder, subject to an investigation or that is a party to a contested case, may be deposed by the Board. Subsection (c) further specifies the location at which such deposition may take place and, in the case of a deponent that is not a party, the reimbursement policy of the Board. Subsection (d) adds an interpretive comment stating that this rule should be read in conjunction with §501.93 of this title relating to Responses.

William Treacy, Executive Director of the Board, has determined that for the first five-year period the proposed amendment will be in effect:

A. the additional estimated cost to the state expected as a result of enforcing or administering the amendment will be zero.

B. the estimated reduction in costs to the state and to local governments as a result of enforcing or administering the amendment will be zero.

C. the estimated loss or increase in revenue to the state as a result of enforcing or administering the amendment will be zero.

Mr. Treacy has determined that for the first five-year period the amendment is in effect the public benefits expected as a result of adoption of the proposed amendment will be clarification of the location at which a person, subject to an investigation or party to a contested case may be deposed; furthermore, that an applicant, certificate or registration holder who is the subject of an investigation, in addition to one who is party to a contested case, may be brought by this Board to be deposed.

The probable economic cost to persons required to comply with the amendment will be zero.

Mr. Treacy has determined that a Local Employment Impact Statement is not required because the proposed amendment will not affect a local economy.

The Board requests comments on the substance and effect of the proposed amendment from any interested person. Comments must be received at the Board no later than noon on April 27, 2005. Comments should be addressed to Rande Herrell, General Counsel, Texas State Board of Public Accountancy, 333 Guadalupe, Tower 3, Suite 900, Austin, Texas 78701 or faxed to her attention at (512) 305-7854.

Mr. Treacy has determined that the proposed amendment will not have an adverse economic effect on small businesses because the amendment does not apply to small businesses.

The Board specifically invites comments from the public on the issues of whether or not the proposed amendment will have an adverse economic effect on small business; if the amendment is believed to have such an effect, then how may the Board legally and feasibly reduce that effect considering the purpose of the statute under which the amendment is to be adopted; and if the amendment is believed to have such an effect, how the cost of compliance for a small business compares with the cost of compliance for the largest business affected by the amendment under any of the following standards: (a) cost per employee; (b) cost for each hour of labor; or (c) cost for each $100 of sales. See Texas Government Code, §2006.002(c).

The amendment is proposed under the Public Accountancy Act ("Act"), Texas Occupations Code, §901.151 which authorizes the Board to adopt rules deemed necessary or advisable to effectuate the Act.

No other article, statute or code is affected by this proposed amendment.

§519.6.Subpoenas.

(a) The executive director or his designated representative is delegated authority to issue subpoenas to compel the attendance of relevant witnesses or to compel the production of relevant documents, records and other materials, maintained by electronic or other means in the furtherance of the investigation of any matter within the jurisdiction of the board. The executive director or his designated representative may administer oaths and take testimony and other evidence from any person who is the subject of a subpoena issued under this section in the furtherance of the investigation of any matter within the jurisdiction of the board.

(b) The executive director or his designated representative is delegated authority to issue subpoenas authorized by the APA in contested cases and the Act.

(c) An applicant, certificate or registration holder who is the subject of an investigation or a party to a contested case in a disciplinary action brought by the board may be deposed at the board's offices in Austin, Texas. If the deponent is not a party to a contested case, the board will reimburse the deponent for reasonable expenses incurred to attend the deposition in accordance with §2001.103 of the Texas Government Code. Any deponent may seek a protective order concerning the place of deposition on grounds stated in Texas Rule of Civil Procedure 192.6.

(d) Interpretive Comment. This section should be read in conjunction with §501.93 of this title (relating to Responses).

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 March 24, 2005.

TRD-200501299

Rande Herrell

General Counsel

Texas State Board of Public Accountancy

Earliest possible date of adoption: May 8, 2005

For further information, please call: (512) 305-7848


Subchapter C. PROCEEDINGS AT SOAH

22 TAC §519.41

The Texas State Board of Public Accountancy (Board) proposes an amendment to §519.41 concerning Pleadings in Contested Cases.

The amendment to §519.41 will clarify the language required to be included in the complaint filed by the Board with SOAH; the amended language indicates that a respondent must file an answer with the Board as well as SOAH.

William Treacy, Executive Director of the Board, has determined that for the first five-year period the proposed amendment will be in effect:

A. the additional estimated cost to the state expected as a result of enforcing or administering the amendment will be zero.

B. the estimated reduction in costs to the state and to local governments as a result of enforcing or administering the amendment will be zero.

C. the estimated loss or increase in revenue to the state as a result of enforcing or administering the amendment will be zero.

Mr. Treacy has determined that for the first five-year period the amendment is in effect the public benefits expected as a result of adoption of the proposed amendment will be improved understanding by the public of where to file a response to any complaint.

The probable economic cost to persons required to comply with the amendment will be zero.

Mr. Treacy has determined that a Local Employment Impact Statement is not required because the proposed amendment will not affect a local economy.

The Board requests comments on the substance and effect of the proposed amendment from any interested person. Comments must be received at the Board no later than noon on April 27, 2005. Comments should be addressed to Rande Herrell, General Counsel, Texas State Board of Public Accountancy, 333 Guadalupe, Tower 3, Suite 900, Austin, Texas 78701 or faxed to her attention at (512) 305-7854.

Mr. Treacy has determined that the proposed amendment will not have an adverse economic effect on small businesses because there is no increase in difficulty of responding to a complaint.

The Board specifically invites comments from the public on the issues of whether or not the proposed amendment will have an adverse economic effect on small business; if the amendment is believed to have such an effect, then how may the Board legally and feasibly reduce that effect considering the purpose of the statute under which the amendment is to be adopted; and if the amendment is believed to have such an effect, how the cost of compliance for a small business compares with the cost of compliance for the largest business affected by the amendment under any of the following standards: (a) cost per employee; (b) cost for each hour of labor; or (c) cost for each $100 of sales. See Texas Government Code, §2006.002(c).

The amendment is proposed under the Public Accountancy Act ("Act"), Texas Occupations Code, §901.151 which authorizes the Board to adopt rules deemed necessary or advisable to effectuate the Act.

No other article, statute or code is affected by this proposed amendment.

§519.41.Pleadings in Contested Cases.

(a) A complaint filed by the board with SOAH shall include information that alleges a certificate or registration holder has committed a violation of the Act. The complaint shall be assigned a docket number and an ALJ and shall be filed before or contemporaneously with the notice of hearing. The complaint shall include:

(1) a statement of the legal authority and jurisdiction under which the hearing is to be held;

(2) a reference to the particular sections of the statutes and rules involved;

(3) a short, plain statement of the matters asserted; and

(4) the following language in at least 12-point bold type: "If you do not file a written answer to this complaint with the board [ State Office of Administrative Hearings ] within 20 days of the date the complaint was mailed, the board may request the matter be remanded to the board for final disposition and all of the matters alleged in the complaint will be deemed admitted as true. A copy of any response you file with the board shall also be filed with the State Office of Administrative Hearings[ shall also be provided to the staff attorney for the Texas State Board of Public Accountancy whose name appears on the complaint ]."

(b) The Notice of Hearing shall include:

(1) a statement of the time and place of the hearing;

(2) a statement of the nature of each charge against the Respondent; and

(3) the following language in at least 12 point bold type: "If you fail to attend the hearing, the factual allegations contained in the complaint and any amendments to the complaint will be deemed as true, and the relief sought in the complaint and any amendments to the complaint may be granted by default and a default judgment entered against you, which may include any or all of the requested sanctions, including the revocation of your certificate or registration".

(c) The Respondent shall file a written answer with the board [ SOAH ] within 20 days of the date the complaint or amended complaint was sent to Respondent as computed under §519.3 of this title (relating to Computation of Time). The answer shall include a short, plain statement of the Respondent's defenses to each claim asserted and shall admit or deny each allegation contained in the complaint. If the Respondent is without knowledge or information sufficient to form a belief as to the truth of an allegation, the Respondent shall so state and this has the effect of a denial. When a Respondent intends in good faith to deny only a part or a qualification of an allegation, the Respondent shall specify so much of it as is true and material and shall deny only the remainder.

(d) Factual and legal allegations by the board in a complaint or amended complaint are admitted when not denied in the Respondent's answer or amended answer.

(e) All amended pleadings shall be filed no later than 20 days prior to the hearing date. Any amended pleading filed after that date shall be null and void, and have no effect unless otherwise ordered by the ALJ, upon a showing of good cause and lack of harm to the opposing party.

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 March 24, 2005.

TRD-200501300

Rande Herrell

General Counsel

Texas State Board of Public Accountancy

Earliest possible date of adoption: May 8, 2005

For further information, please call: (512) 305-7848


Part 25. TEXAS STRUCTURAL PEST CONTROL BOARD

Chapter 597. UNLAWFUL ACTS AND GROUNDS FOR REVOCATION

22 TAC §597.1

The Texas Structural Pest Control Board proposes an amendment to §597.1, concerning Grounds for Revocation, Suspension, Penalties, Reprimanding, Refusal To Examine, Refusal To Issue or Renew Licenses. The proposal reflects the codification of the Structural Pest Control Act into the Texas Occupations Code. The proposal also clarifies the penalty for failure to notify the Board when apprentices leave a business or when an apprentice does work for which the apprentice is not trained. The proposal also clarifies the violation on when a licensee operates without insurance. Finally, a new regulation is added by listing a violation for a licensee not providing a disclosure document with a written estimate prior to or at the same time as the written estimate.

Dale Burnett, Executive Director, has determined that there will be no fiscal implications as result of enforcing or administering the amended section. There is no estimated additional cost or estimated reduction in cost for state government. There will be no estimated increase in revenue to state government for the first five-year period the amendment will be in effect. There will be no estimated additional cost, estimated reduction in cost or estimated increase in revenue on local government for the first five-year period the amendment will be in effect.

There will be no cost of compliance for small businesses since the proposal does not affect them.

There is no cost comparison for small or large businesses since they will not be affected by the proposal.

There is no cost of compliance for individuals since the proposal will only affect violators of the rule.

Mr. Burnett also has determined that for each of the first five years the amendment as proposed is in effect, the public benefits anticipated as a result of enforcing the amendment as proposed will be that licensees will be aware of the consequences if apprentices operate outside of a category or a business license holder does not notify the Board if an apprentice leaves a business. Operating without insurance is more clearly defined. Finally, the new regulation on disclosure documents makes it clear that those documents must be provided prior to or at the same time as the written estimate. There will also be a public benefit by listing the statutory codification of the Structural Pest Control Act.

Comments on the proposal may be submitted to Frank M. Crull, General Counsel, Structural Pest Control Board, P.O. Box 1927, Austin, Texas 78767.

The amendment is proposed under the Texas Occupations Code, Chapter 1951, which provides the Structural Pest Control Board with the authority to license and regulate the structural pest control industry.

No other statute, code or article is affected by this proposal.

§597.1.Grounds for Revocation, Suspension, Penalties, Reprimanding, Refusal To Examine, Refusal To Issue or Renew Licenses.

Any such action may be accomplished by a vote of the Board, after notice and hearings, as provided for by Texas Civil Statutes[ , Article 135b-6, ] and the Administrative Procedure and Texas Register Act. No revocation [ evocation ], suspension, annulment, or withdrawal of any license is effective unless prior to the institution of agency proceedings, the agency gave notice by personal service or by registered or certified mail to the licensee of facts or conduct alleged to warrant the intended action, and the licensee was given the opportunity to show compliance with all requirements of law for the retention of the license. The following are grounds for revocation, suspension, penalties, reprimanding, refusal to examine, refusal to issue or renew licenses:

(1) - (9) (No change.)

(10) performing work in a category for which the certified applicator or technician licensee is not licensed or an apprentice is not trained or licensed ;

(11) - (15) (No change.)

(16) failure to print in proper size type the address and telephone number of the Board[ ] ] and the statement that the board has jurisdiction over individuals licensed by the board and the Act;

(17) - (19) (No change.)

(20) failure of certified applicator licensee , [ or ] technician or apprentice to notify the Board [ board ] when he or she moves or changes employers;

(21) failure to maintain continuous minimum liability insurance and continuing to operate during lapsed period ;

(22) (No change.)

(23) failure to maintain technician or apprentice training records;

(24) - (32) (No change.)

(33) failure to comply with any section of the Act or Regulations ; [ . ]

(34) failure to provide a disclosure document prior to, or accompanying, or at the same time, with a written estimate as described in §599.4 of this title.

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 March 28, 2005.

TRD-200501318

Dale Burnett

Executive Director

Texas Structural Pest Control Board

Earliest possible date of adoption: May 8, 2005

For further information, please call: (512) 305-8270


22 TAC §597.3

The Texas Structural Pest Control Board proposes an amendment to §597.3 concerning Unlawful Acts. The proposal reflects the codification of the Texas Structural Pest Control Act into the Occupations Code.

Dale Burnett, Executive Director, has determined that there will be no fiscal implications as result of enforcing or administering the rule. There is no estimated additional cost or estimated reduction in cost for state government. There will be no estimated increase in revenue to state government for the first five-year period the rule will be in effect. There will be no estimated additional cost, estimated reduction in cost or estimated increase in revenue on local government for the first five-year period the rule will be in effect. There will be no cost of compliance for small businesses since the rule proposal does not affect them. There is no cost comparison for small or large businesses since they will not be affected by the rule proposal.

Dale Burnett, Executive Director, has determined that for each of the first five years the rule as proposed is in effect, the public benefits anticipated as a result of enforcing the rule as proposed that all parties will know the correct statutory cite to the Texas Structural Pest Control Act.

Comments on the proposal may be submitted to Frank M. Crull, General Counsel, Structural Pest Control Board, P.O. Box 1927, Austin, TX 78767.

The amendment is proposed under the Texas Occupations Code, Chapter 1951, which provides the Structural Pest Control Board with the authority to license and regulate the structural pest control industry.

No other statute, code or article is affected by this proposal.

§597.3.Unlawful Acts.

In addition to the offenses listed in the Texas Structural Pest Control Act (the Act), Occupations Code, Chpt. 1951 [ §10(A) ], §597.1(1)-(3) and (7)-(26) of this title (relating to Grounds for Revocation, Suspension, Reprimanding, Refusal To Examine, Refusal To Issue or Renew Licenses) are unlawful acts. Any person who commits an unlawful act is subject to the criminal, civil, and administrative penalties provided by the Act as well as the remedies provided in this section.

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 March 28, 2005.

TRD-200501319

Dale Burnett

Executive Director

Texas Structural Pest Control Board

Earliest possible date of adoption: May 8, 2005

For further information, please call: (512) 305-8270