Part 8.
TEXAS APPRAISER LICENSING AND CERTIFICATION BOARD
Chapter 153.
RULES RELATING TO PROVISIONS OF THE TEXAS APPRAISER LICENSING AND CERTIFICATION ACT
22 TAC §153.24
The Texas Appraiser Licensing and Certification Board proposes
a new rule §153.24, concerning Processing a Complaint. Rather, than having
to wait for a Board or Enforcement Committee meeting to close a complaint,
the new rule §153.24 authorizes the Commissioner to dismiss a complaint
received by the Texas Appraiser Licensing and Certification Board that is
not within the Board's jurisdiction or a complaint without merit. The new
rule also streamlines the complaint process by reducing the number of days
it takes to close a complaint.
Wayne Thorburn, Commissioner, Texas Appraiser Licensing and Certification
Board, has determined that for the first five-year period the new rule is
in effect there will be no fiscal implications for state or local government
as a result of enforcing or administering the new rule.
Mr. Thorburn also has determined that for each year of the first five years
the new rule is in effect, the public benefit anticipated as a result of these
changes is the ability to close a complaint in a more timely manner. There
will be no effect on small or micro-businesses. There is no effect on individuals
who are required to comply with the new rule as proposed.
Comments on the proposal may be submitted Wayne Thorburn, Commissioner,
Texas Appraiser Licensing and Certification Board, P.O. Box 12188, Austin,
Texas 78711-2188.
The new rule is proposed under the Texas Appraiser Licensing
and Certification Act, Subchapter D, Board Powers and Duties (Occupations
Code, Chapter 1103), which provides the board with authority to adopt rules
under §1103.151, Rules Relating to Certification and Licenses.
No other code, article, or statute is affected by this proposal.
§153.24.Processing a Complaint.
(a)
Upon receipt of a complaint the Board's staff shall assign
the complaint a complaint number.
(b)
The Board's staff shall review the complaint including
supporting documentation. If the complaint does not contain sufficient information
to determine whether the Board has jurisdiction or is considered to be outside
the Board's authority, the Board's staff may interview the complainant to
develop additional information.
(c)
If the Board's staff concludes, after completion of the
written investigative report provided for in §1103.455, Occupations Code,
that the complaint is outside the jurisdiction of the board or is without
merit, the Board's staff may recommend to the commissioner that the investigation
be closed and that the complaint be dismissed. If the commissioner concurs
with the recommendation, the complainant will be so notified and the investigation
will be closed. The Board's staff shall write a dismissal explanation for
the dismissed complaint and close the file.
(d)
If the Board's staff determines that a possible violation
exists, the Board's staff shall proceed with the investigation.
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 June 16, 2005.
TRD-200502502
Wayne Thorburn
Commissioner
Texas Appraiser Licensing and Certification Board
Earliest possible date of adoption: July 31, 2005
For further information, please call: (512) 465-3950
Chapter 539.
PROVISIONS OF THE RESIDENTIAL SERVICE COMPANY ACT
Subchapter D. DEFINITIONS
22 TAC §539.31
The Texas Real Estate Commission (TREC) proposes amendments
to §539.31 concerning Residential Service Contract. The amendments change
the cites to the relevant statutory provisions in Chapter 1303, Texas Occupations
Code. House Bill 2813, 77th Legislature (2001), added Chapter 1303, a nonsubstantive
codification of The Residential Service Company Act, and repealed Article
6573b, Texas Civil Statutes effective June 1, 2003. The amendments are also
proposed in connection with TREC’s on-going review of its rules and
are generally intended to update and to clarify the rules concerning definitions.
Loretta R. DeHay, general counsel, has determined that for the first five-year
period the section is in effect there will be no fiscal implications for the
state as a result of enforcing or administering the section. There are no
anticipated fiscal implications for units of local government. There is no
anticipated impact on small businesses, micro businesses or local or state
employment as a result of implementing the section.
Ms. DeHay also has determined that for each year of the first five years
the section as proposed is in effect the public benefit anticipated as a result
of enforcing the section will be clarification of the underlying statutory
authority for the rule. There is no anticipated economic cost to persons who
are required to comply with the proposed section.
Comments on the proposal may be submitted to Loretta R. DeHay, General
Counsel, Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188.
The amendments are proposed under Texas Occupations Code, §1303.051,
which authorizes the Texas Real Estate Commission to adopt rules necessary
to implement Chapter 1303.
The statute affected by this proposal is Texas Occupations Code, Chapter
1303. No other statute, code or article is affected by the proposed amendments.
§539.31.Residential Service Contract.
A contract or agreement whereby a person, for a fee, undertakes to
indemnify against or reimburse the costs of maintenance, repair, or replacement
of the structural components, appliances, or electrical, plumbing, heating,
cooling, or air conditioning systems of residential property is not a "residential
service contract" within the meaning of
Texas Occupations Code, Chapter
1303, §1303.002(5)
[
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 June 14, 2005.
TRD-200502429
Loretta DeHay
General Counsel
Texas Real Estate Commission
Earliest possible date of adoption: July 31, 2005
For further information, please call: (512) 465-3900
22 TAC §539.51
The Texas Real Estate Commission (TREC) proposes amendments
to §539.51, concerning Employee Defined. The amendments change the cites
to the relevant statutory provisions in Chapter 1303, Texas Occupations Code.
House Bill 2813, 77th Legislature (2001), added Chapter 1303, a nonsubstantive
codification of The Residential Service Company Act, and repealed Article
6573b, Texas Civil Statutes effective June 1, 2003. The amendments are also
proposed in connection with TREC’s on-going review of its rules and
are generally intended to update and to clarify the rules concerning definitions.
Loretta R. DeHay, general counsel, has determined that for the first five-year
period the section is in effect there will be no fiscal implications for the
state as a result of enforcing or administering the section. There are no
anticipated fiscal implications for units of local government. There is no
anticipated impact on small businesses, micro businesses or local or state
employment as a result of implementing the section.
Ms. DeHay also has determined that for each year of the first five years
the section as proposed is in effect the public benefit anticipated as a result
of enforcing the section will be clarification of the underlying statutory
authority for the rule. There is no anticipated economic cost to persons who
are required to comply with the proposed section.
Comments on the proposal may be submitted to Loretta R. DeHay, General
Counsel, Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188.
The amendments are proposed under Texas Occupations Code, §1303.051,
which authorizes the Texas Real Estate Commission to adopt rules necessary
to implement Chapter 1303.
The statute affected by this proposal is Texas Occupations Code, Chapter
1303. No other statute, code or article is affected by the proposed amendments.
§539.51.Employee Defined.
For the purposes of Texas
Occupations Code, Chapter 1303, §1303.004
[
(1)
The residential service company must have the right to
direct and control the employee’s performance.
(2)
The residential service company must accept responsibility
for representations made by the employee within the scope of the employee’s
employment.
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 June 14, 2005.
TRD-200502430
Loretta DeHay
General Counsel
Texas Real Estate Commission
Earliest possible date of adoption: July 31, 2005
For further information, please call: (512) 465-3900
22 TAC §539.81
The Texas Real Estate Commission (TREC) proposes amendments
to §539.81 concerning Funded Reserves. The amendments change the cites
to the relevant statutory provisions in Chapter 1303, Texas Occupations Code.
House Bill 2813, 77th Legislature (2001), added Chapter 1303, a nonsubstantive
codification of The Residential Service Company Act, and repealed Article
6573b, Texas Civil Statutes effective June 1, 2003. The amendments are also
proposed in connection with TREC’s on-going review of its rules and
are generally intended to update and to clarify the rules concerning definitions.
Loretta R. DeHay, general counsel, has determined that for the first five-year
period the section is in effect there will be no fiscal implications for the
state as a result of enforcing or administering the section. There are no
anticipated fiscal implications for units of local government. There is no
anticipated impact on small businesses, micro businesses or local or state
employment as a result of implementing the section.
Ms. DeHay also has determined that for each year of the first five years
the section as proposed is in effect the public benefit anticipated as a result
of enforcing the section will be clarification of the underlying statutory
authority for the rule. There is no anticipated economic cost to persons who
are required to comply with the proposed section.
Comments on the proposal may be submitted to Loretta R. DeHay, General
Counsel, Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188.
The amendments are proposed under Texas Occupations Code, §1303.051,
which authorizes the Texas Real Estate Commission to adopt rules necessary
to implement Chapter 1303.
The statute affected by this proposal is Texas Occupations Code, Chapter
1303. No other statute, code or article is affected by the proposed amendments.
§539.81.Funded Reserves.
(a)
Each residential service company licensed by the commission
shall maintain funded reserves in the amount required by the Residential Service
Company Act (Act),
Texas Occupations Code, Chapter 1303, Subchapter D
[
(1) - (2)
(No change.)
(b)
(No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on June 14, 2005.
TRD-200502431
Loretta DeHay
General Counsel
Texas Real Estate Commission
Earliest possible date of adoption: July 31, 2005
For further information, please call: (512) 465-3900
22 TAC §539.121
The Texas Real Estate Commission (TREC) proposes amendments
to §539.121 concerning Examinations. The amendments change the cites
to the relevant statutory provisions in Chapter 1303, Texas Occupations Code.
House Bill 2813, 77th Legislature (2001), added Chapter 1303, a nonsubstantive
codification of The Residential Service Company Act, and repealed Article
6573b, Texas Civil Statutes effective June 1, 2003. The amendments are also
proposed in connection with TREC’s on-going review of its rules and
are generally intended to update and to clarify the rules concerning definitions.
Loretta R. DeHay, general counsel, has determined that for the first five-year
period the section is in effect there will be no fiscal implications for the
state as a result of enforcing or administering the section. There are no
anticipated fiscal implications for units of local government. There is no
anticipated impact on small businesses, micro businesses or local or state
employment as a result of implementing the section.
Ms. DeHay also has determined that for each year of the first five years
the section as proposed is in effect the public benefit anticipated as a result
of enforcing the section will be clarification of the underlying statutory
authority for the rule. There is no anticipated economic cost to persons who
are required to comply with the proposed section.
Comments on the proposal may be submitted to Loretta R. DeHay, General
Counsel, Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188.
The amendments are proposed under Texas Occupations Code, §1303.051,
which authorizes the Texas Real Estate Commission to adopt rules necessary
to implement Chapter 1303.
The statute affected by this proposal is Texas Occupations Code, Chapter
1303. No other statute, code or article is affected by the proposed amendments.
§539.121.Examinations.
The commission shall examine the affairs of each licensed residential
service company as the commission deems necessary, but no less than once every
three years. A company's failure to provide access to the commission to the
books and records of the company is a violation of
Texas Occupations
Code, Chapter 1303, §1303.053,
[
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 June 14, 2005.
TRD-200502432
Loretta DeHay
General Counsel
Texas Real Estate Commission
Earliest possible date of adoption: July 31, 2005
For further information, please call: (512) 465-3900
Chapter 571.
LICENSING
Subchapter A. EXAMINATION
22 TAC §571.3
The Texas Board of Veterinary Medical Examiners ("Board")
proposes amendments to §571.3, concerning Eligibility for Examination
and Licensure. This section contains the Board's requirements for persons
seeking a veterinary license in Texas. The Board's recently adopted sunset
bill, Senate Bill 407, requires the Board to refund license examination fees
under certain circumstances and adopt a rule defining an "emergency" that
would warrant a refund. The amended section satisfies the legislative requirement
that the Boards examination fee be refunded if the applicant provides notice
to the Board of not less than 14 days before the date of the examination that
the applicant is unable to take the examination, or if the applicant is unable
to take the examination because of an emergency. The term "emergency" is defined
as any immediate, unforseen event that would render a person unable or unfit
to take the examination, and may include a death in the family or an injury
or other event that could reasonably be considered to be an emergency.
Mr. Ron Allen, Executive Director, has determined that for the first five-year
period the amended section is in effect there will be no fiscal implications
for state or local government as a result of enforcing or administering the
section.
Mr. Allen has also determined that for the first five years the section
is in effect the public benefit anticipated as a result of enforcing the amended
section will be to introduce fairness into the licensing process by allowing
certain individuals to have fee refunds for circumstances beyond their control.
There will be no effect on small or micro businesses. There will be no economic
cost to persons required to comply with the amended section as proposed.
Comments on the proposed amendments may be submitted in writing to Julie
Barker, Texas Board of Veterinary Medical Examiners, 333 Guadalupe, Suite
3-810, Austin, Texas 78701, phone (512) 305-7555, fax (512) 305-7556, and
must be received by September 1, 2005.
The amendments are proposed under the authority of the Veterinary
Licensing Act, Texas Occupations Code, §801.151(a) which states that
the Board may adopt rules necessary to administer the chapter.
The amendments affect the Veterinary Licensing Act, Occupations Code, Chapter
801, Subchapter F, pertaining to Licensing.
§571.3.Eligibility for Examination and Licensure.
(a) - (c)
(No change.)
(d)
Licensing Examination
(1) - (6)
(No change.)
(7)
Appearance for Examinations
(A)
An applicant for the SBE must submit a new application
and the current fees prior to admission for examination if the applicant:
(i)
does not appear for the scheduled examination;
or
(ii)
fails to attain a passing score on the scheduled examination.
(B)
The Board shall refund the examination
fee for the SBE if the applicant:
(i)
provides notice of not less than fourteen (14)
days before the date of the examination, that the applicant is unable to take
the examination; or
(ii)
is unable to take the examination because of
an emergency.
(C)
For purposes of subparagraph
(B)(ii) of this paragraph, an "emergency" shall be defined as any immediate,
unforseen event that would render a person unable or unfit to take an examination,
and may include a death in the family or an injury or other event that could
be reasonably considered to be an emergency. Matters of inconvenience or failure
to satisfy an examination prerequisite, shall not be considered an emergency.
(D)
[
(i)
A candidate who fails to take the examination within the
appropriate testing window shall forfeit the candidate's fees.
(ii)
A candidate who fails to take the examination within the
appropriate testing window and desires to take the examination during a subsequent
testing window must have the candidate's eligibility reconfirmed by the Board
and the candidate must pay new fees.
(iii)
If a candidate fails to attain a passing score on the
NAVLE, the candidate must submit a new application and the current fees in
accordance with this section, except that, if a candidate fails to pass the
fall NAVLE, the Board will consider the candidate approved to retake the NAVLE
during the following spring testing window. In that case, the candidate must
submit a new NAVLE application to the NBVME and pay the NBVME's examination
fee.
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 June 14, 2005.
TRD-200502402
Julie A. Barker
Executive Assistant
Texas Board of Veterinary Medical Examiners
Proposed date of adoption: October 12, 2005
For further information, please call: (512) 305-7555
22 TAC §575.27
The Texas Board of Veterinary Medical Examiners ("Board")
proposes amendments to §575.27, concerning Complaints--Receipt, Investigation
and Disposition. This section sets out the process used by the Board in receiving
and processing complaints. The Board's recently adopted sunset bill, Senate
Bill 407, directs the Board to adopt a formal policy to focus enforcement
efforts toward investigating complaints. The Sunset Advisory Commission also
recommended that the Board update rules to prioritize complaints by emphasizing
those that allege the most serious violations.
The Board proposes that §575.27 be amended to reflect adoption of
the formal policy required by Senate Bill 407. The amendment states that the
policy of the Board is that the investigation of complaints shall be the primary
concern of the Board's enforcement program, and shall take precedence over
all other elements of the enforcement program, including compliance inspections.
Complaint priorities are also established in the following order: acts (or
omissions) that may constitute a continuing threat to the public welfare;
acts that resulted in the death of an animal; acts that contributed to or
did not correct the illness, injury or suffering of an animal; and all other
acts that do not fall in the preceding categories. These amendments satisfy
the intent of the legislature as reflected in Senate Bill 407. One additional
change is to reflect current practice of sending notices to licensees of informal
conferences by regular mail instead of certified mail.
Ron Allen, Executive Director, has determined that for the first five-year
period the amended section is in effect there will be no fiscal implications
for state or local government as a result of enforcing or administering the
section.
Mr. Allen has also determined that for the first five years the section
is in effect the public benefit anticipated as a result of enforcing the amended
section will be to emphasize complaint investigations and thus encourage agency
efficiency by settling complaints more quickly. Public understanding of the
Board's complaint process will be enhanced by the knowledge that a priority
system for complaints has been established. There will be no effect on small
or micro businesses. There will be no economic cost to persons required to
comply with the amended section as proposed.
Comments on the proposed amendments may be submitted in writing to Julie
Barker, Texas Board of Veterinary Medical Examiners, 333 Guadalupe, Suite
3-810, Austin, Texas 78701, phone (512) 305-7555, fax (512) 305-7556, and
must be received by September 1, 2005.
The amendments are proposed under the authority of the Veterinary
Licensing Act, Texas Occupations Code, §801.151(a) which states that
the Board may adopt rules necessary to administer the chapter.
The amendments affect the Veterinary Licensing Act, Texas Occupations Code,
Chapter 801, Subchapter E, which requires the Board to develop and implement
a complaint procedure.
§575.27.Complaints--Receipt, Investigation and Disposition.
(a) - (b)
(No change.)
(c)
Investigation of complaints.
(1)
The policy of the board is that the investigation
of complaints shall be the primary concern of the board's enforcement program,
and shall take precedence over all other elements of the enforcement program,
including compliance inspections.
[
(2)
The board shall investigate complaints
based on the following allegations, in order of priority:
(A)
acts or omissions, including those related to substance
abuse, that may constitute a continuing and imminent threat to the public
welfare;
(B)
acts or omissions of a licensee that resulted in the death
of an animal;
(C)
acts or omissions of a licensee that contributed to or
did not correct the illness, injury or suffering of an animal; and
(D)
all other act and omissions that do not fall within subparagraphs
(A) - (C) of this paragraph.
(3)
[
(4)
[
(5)
[
(6)
[
(7)
[
(8)
[
(9)
[
(d) - (h)
(No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on June 14, 2005.
TRD-200502403
Julie A. Barker
Executive Assistant
Texas Board of Veterinary Medical Examiners
Proposed date of adoption: October 12, 2005
For further information, please call: (512) 305-7555
Subchapter B. STAFF AND MISCELLANEOUS
Part 23.
TEXAS REAL ESTATE COMMISSION
§4(a)
].
Subchapter F. AUTHORIZED PERSONNEL
Civil Statutes, Article 6573b, §6(b)
], "employee"
means any person other than a licensed real estate salesperson, real estate
broker, mobile home dealer, or insurance agent authorized by a licensed service
company to sell, offer to sell, arrange or solicit the sale of, or receive
applications for residential service contracts subject to the following conditions.
Subchapter I. FUNDED RESERVES
, §9
]. Accounts containing funded reserves must be
identified as such and may not be encumbered or commingled with funds which
are not reserves. Separate funded reserves are required for service contracts
written in Texas unless the company's combined funded reserves meet the minimum
reserve requirements of the Act,
Subchapter D
[
§9
],
calculated on the basis of all outstanding contracts. Each company shall maintain
a level of liquidity equal to or greater than the amount of its funded reserve.
Funded reserves may be maintained in the following liquid assets only:
Subchapter M. EXAMINATIONS
Texas Civil Statutes, Article
6573b, §13(b) (the Act)
] and may subject the company to the penalties
provided in
Chapter 1303
[
the Act
].
Part 24.
TEXAS BOARD OF VETERINARY MEDICAL EXAMINERS
(B)
] A candidate for the NAVLE must
take the examination within the testing window in which the candidate is authorized
for testing.
Chapter 575.
PRACTICE AND PROCEDURE
The board shall investigate
complaints against licensees in the order received unless the allegations
contained in a complaint are deemed to constitute a continuing or imminent
threat to the public welfare, in which case the complaint will be investigated
immediately.
]
(2)
] Upon receipt of a complaint,
a letter of acknowledgment will be promptly mailed to the complainant.
(3)
]
Complaints
[
Complaint files
] will be reviewed every thirty (30) days to determine
the status of the complaint. Parties to a complaint will be informed on the
status of a complaint [
on
] at least
on
a quarterly basis.
(4)
] Upon receipt of a complaint,
a board investigator shall review it and may interview the complainant to
develop additional information. If the investigator concludes that the complaint
resulted from a misunderstanding, is outside the jurisdiction of the board,
or is without merit, the investigator shall recommend through the director
of enforcement to the executive director that the investigation be closed.
If the executive director concurs with the recommendation, the complainant
will be so notified, the investigation will be closed, and the complaint file
will be maintained in a secure file in the board office. If the executive
director does not concur with the recommendation, the investigation will proceed.
(5)
] If the executive director returns
the complaint to the investigator with a notation of non-concurrence under
paragraph
(5)
[
(4)
] of this subsection, or if the executive
director concurs with the investigator's determination that a potential violation
exists, the licensee is furnished with a copy of the complaint, unless the
executive director determines that an undercover investigation is required.
If no undercover investigation is required, the investigator shall contact
the licensee in writing, and request any patient records or other pertinent
documents deemed necessary for the investigation. The investigator may schedule
an interview with the licensee. The investigator may request a written narrative
statement from the licensee.
(6)
] After the licensee's response
to the complaint is received, further investigation may be necessary to corroborate
the information provided by the complainant and the licensee. The investigator
may request additional medical opinions, supporting documents, and interviews
with other witnesses.
(7)
] Upon the completion of an investigation,
the director of enforcement shall present to the executive director a report
of investigation (ROI) and a conclusion as to the probability that a violation(s)
exists. If the executive director determines from the ROI that the probability
of a violation involving medical judgement or practice exists, the director
of enforcement shall forward a copy of the complaint file to the board secretary,
who will determine whether or not the complaint should be closed, further
investigation is warranted, or if the licensee should be invited to respond
to the complaint at an informal conference at the board offices. If the probable
violation does not involve medical judgement or practice, the executive director
shall not forward the complaint file to the board secretary, and the executive
director shall determine whether or not the complaint should be closed, further
investigation is warranted, or if the licensee should be invited to respond
to the complaint at an informal conference at the board offices. If the board
secretary or executive director determines that a violation has not occurred,
the executive director or director of enforcement shall notify the complainant
and licensee in writing of the conclusion and that the complaint is dismissed.
(8)
] If the board secretary or executive
director concludes that a probable violation(s) does exist, the executive
director shall invite the licensee in writing to an informal conference to
discuss the complaint made against the licensee. The letter invitation
to the licensee
[
shall be mailed by certified mail, return receipt
requested, and
] must include a list of the specific allegations of the
complaint.
Chapter 577.
GENERAL ADMINISTRATIVE DUTIES