TITLE 40.SOCIAL SERVICES AND ASSISTANCE

Part 20. TEXAS WORKFORCE COMMISSION

Chapter 819. TEXAS WORKFORCE COMMISSION CIVIL RIGHTS DIVISION

The Texas Workforce Commission (Commission) proposes the repeal of Chapter 819 in its entirety and proposes new Chapter 819 as follows:

Subchapter A General Provisions

Subchapter B Equal Employment Opportunity Provisions

Subchapter C Equal Employment Opportunity Reports, Training, and Reviews

Subchapter D Equal Employment Opportunity Complaints and Appeals Process

Subchapter E Equal Employment Opportunity Deferrals

Subchapter F Equal Employment Opportunity Records and Recordkeeping

Subchapter G Texas Fair Housing Act Provisions

Subchapter H Discriminatory Housing Practices

Subchapter I Texas Fair Housing Act Complaints and Appeals Process

Subchapter J Fair Housing Deferral to Municipalities

Subchapter K Fair Housing Administrative Hearings and Judicial Review

Subchapter L Fair Housing Fund

PART I. PURPOSE, BACKGROUND, AND AUTHORITY

PART II. EXPLANATION OF INDIVIDUAL PROVISIONS

PART III. IMPACT STATEMENTS

PART IV. COORDINATION ACTIVITIES

PART I. PURPOSE, BACKGROUND, AND AUTHORITY

Purpose

The purpose of the proposed repeal of Chapter 819 and proposed new Chapter 819 is, in part, to:

(1) align the rules with House Bill (HB) 2933, enacted by the 78th Texas Legislature, Regular Session, effective March 1, 2004, that directed the abolition of the Texas Commission on Human Rights, the creation of the Texas Workforce Commission Civil Rights Division (CRD), and the reinstitution of the Commission on Human Rights with authority different from that of the abolished Texas Commission on Human Rights; and

(2) remove duplicative and obsolete administrative processes, procedures, references, and terminology.

Other issues addressed through this proposed repeal and proposed new rules include:

(1) clarifying the procedures for processing employment and housing discrimination complaints;

(2) improving the procedures for review of state agency personnel policies and firefighter tests;

(3) distinguishing between the nature and content of standard and compliance employment discrimination training for state agency employees;

(4) defining the term "complaint with merit" for purposes of compliance employment discrimination training;

(5) providing standards for evaluating employment discrimination training programs for state agency employees, as required by statute; and

(6) clarifying Agency personnel policy as it applies to the CRD director.

The Commission proposes new Chapter 819 to retain only the provisions required by Texas Labor Code, Chapter 21, concerning employment discrimination; Texas Labor Code, Chapter 301, Subchapter I, concerning the Civil Rights Division; Texas Property Code, Chapter 301, concerning housing discrimination; and Texas Government Code, Chapter 419, §§419.102-419.105, concerning firefighter test review.

Background and Authority

In 2003, the 78th Texas Legislature passed HB 2933, abolishing the Texas Commission on Human Rights, transferring the powers and duties of the abolished Texas Commission on Human Rights to the newly created CRD, and reinstituting a Commission on Human Rights with authority different from that of the abolished Texas Commission on Human Rights. The current Chapter 819 rules set forth the procedures and policies of the now-abolished Texas Commission on Human Rights, and therefore do not accurately reflect the changes of HB 2933. Thus, the Commission has designed the proposed new Chapter 819 rules to incorporate the legislative direction of HB 2933.

The Commission reviewed Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972; Civil Rights Act of 1991; Americans with Disabilities Act of 1990, as amended; and 29 U.S.C. Chapter 14, regarding Age Discrimination in Employment, to effectuate the changes directed in HB 2933. Additionally, the Commission reviewed Texas Labor Code, Chapters 21 and 301; Texas Property Code, Chapter 301; and Texas Government Code, Chapter 419. Language that is not necessary to the understanding of the rule or duplicates language found in statute or other rules is eliminated. Therefore, the following topics are not proposed in the new rules:

Employment General Construction

Employment Authority

Employment Severability

Employment Availability

Employee Training and Education

Historically Underutilized Business Program

Confidentiality

Temporary Injunctive Relief

Policy

Office of Alternative Dispute Resolution

Referral of Pending Complaints for Alternative Dispute Resolution

Notification and Objection

Appointment of Mediators

Standards and Duties of Mediators

Compensation of Mediators

Conduct and Decorum

Confidentiality of Communications during Alternative Dispute Resolution Procedures Conformity

Housing General Construction

Sale or Rental of a Single Family House by an Owner

Sale, Rental or Occupancy of Dwellings by a Religious Organization, Association, or Society, or a Not-for-Profit Institute

Housing Owned or Operated by a Private Club

Local or State Restrictions on Maximum Number of Occupants of a Dwelling

Appraisals of Real Property

Illegal Manufacture or Distribution of a Controlled Substance

Health or Safety of Individuals or Damage to Property

Real Estate Practices Prohibited

Unlawful Refusal to Sell or Rent or to Negotiate for the Sale or Rental

Prohibited Interference, Coercion, Intimidation, or Retaliation

Persons against Whom Complaints May Be Filed

Cooperation with Federal Agencies

Relief Sought for Aggrieved Persons during Conciliation

Conciliation Provisions Relating to Public Interest

Prohibitions and Requirements for Disclosure of Information Obtained during Conciliation

Issuance of Charge

Election of Civil Action or Provision of Administrative Hearing Procedure

Administrative Penalties

Effect of Commission Order

Filings of Exceptions and Replies

Form of Exceptions and Replies

Emergency Orders

Show Cause Orders and Complaints

Temporary and Preliminary Relief

Enforcement by Attorney General

Subpoena Enforcement Power

Civil Action

Court Appointed Attorney

Relief Granted

Effect of Relief Granted

Intervention by Attorney General

Licensed or Regulated Businesses

Order in Preceding Five Years

Prevailing Party

Statutory Authority

Effective Date

PART II. EXPLANATION OF INDIVIDUAL PROVISIONS

SUBCHAPTER A. GENERAL PROVISIONS

§819.1. Purpose

The Commission proposes new §819.1 to implement the following statutory provisions: Texas Labor Code, Chapter 21 (relating to Employment Discrimination) and Chapter 301, Subchapter I (relating to Civil Rights Division); Texas Property Code, Chapter 301, (relating to Texas Fair Housing Act); and Texas Government Code, Chapter 419, Subchapter F (relating to Review of Fire Department Tests).

§819.2. Definitions

The Commission proposes new §819.2 to clarify terminology used in both the employment and housing portions of the rules. The changes better align with the terminology and direction of HB 2933. The rules also include definitions that are applicable only to employment discrimination in §819.11 and to housing discrimination in §819.112. Furthermore, the following definitions found in current rule are not included in the proposed new Chapter 819 because they are defined in the Texas Labor Code: act, age, alternative dispute resolution, chairman, commission, commissioner, court, deferral or referral, demonstrates, designee, employee, employment agency, executive director, federal government, Government Code, labor organization, local ordinance, national origin, political subdivision, religion, and sex.

§819.3. Roles and Responsibilities of Commission on Human Rights, CRD, and CRD Director

The Commission proposes new §819.3 to delineate the responsibilities of the new Commission on Human Rights and the newly created CRD. In addition, the rule clarifies the relationship between the CRD director, the Commission on Human Rights, and the Agency.

SUBCHAPTER B. EQUAL EMPLOYMENT OPPORTUNITY PROVISIONS

§819.10. Purpose

The Commission proposes new §819.10, which states the purpose of Subchapters B - F is to set forth the procedures for CRD to execute its responsibilities in the administration and enforcement of Texas Labor Code, Chapter 21.

§819.11. Definitions

The Commission proposes new §819.11 to provide definitions that pertain exclusively to employment issues addressed in Subchapter B, Equal Employment Opportunity Provisions; Subchapter C, Equal Employment Opportunity Reports, Training, and Reviews; Subchapter D, Equal Employment Opportunity Complaints and Appeals Process; Subchapter E, Equal Employment Opportunity Deferrals; and Subchapter F, Equal Employment Opportunity Records and Recordkeeping. The terms defined include bona fide occupational qualification, Civil Rights Act, complaint, conciliation, disability, employer, local commission, mediation, and perfected complaint. In particular, complaint and perfected complaint are defined to distinguish between a complaint that is filed with CRD, and a perfected complaint that triggers an investigation by CRD. In addition, mediation and conciliation are defined to distinguish between efforts by a complainant and respondent to resolve the perfected complaint. Mediation is offered during an investigation prior to a determination of cause, while conciliation is used after a determination of cause is rendered.

§819.12. Unlawful Employment Practices

The Commission proposes new §819.12 to delineate and explain the types of employment discrimination, which include (1) discrimination by an employer; (2) discrimination by an employment agency; (3) discrimination by a labor organization; (4) discrimination during admission or participation in a training program; (5) discrimination through retaliation; (6) discrimination by aiding and abetting in discriminatory practices; (7) discrimination through interference with the Commission on Human Rights and CRD; (8) discrimination by obstructing or preventing persons from complying with the Texas Labor Code; and (9) discrimination through notice or advertisement;

SUBCHAPTER C. EQUAL EMPLOYMENT OPPORTUNITY REPORTS, TRAINING, AND REVIEWS

§819.21. Civilian Workforce Composition Report

The Commission proposes new §819.21, relating to the quality of data to be utilized for preparation of the civilian workforce composition report pursuant to Texas Labor Code §21.035.

§819.22. Review of Firefighter Tests

The Commission proposes new §819.22 to describe the procedures to be used to review the administration of firefighter tests by local fire departments to determine compliance with Texas Labor Code, Chapter 21. Current rule does not provide for the timely review of firefighter exams. As stated in current rule, no less than three percent of fire departments are to be reviewed each year on a random basis. As a consequence, a fire department may not be reviewed for 30 years. Furthermore, the current rule's review mechanism lacks the ability to identify and prioritize departments most in need of review. The proposed new rule provides fire departments with a list of preapproved tests for firefighter positions that have already been determined to be nondiscriminatory. For those fire departments choosing to use a test not on the preapproved list, provisions are made for obtaining CRD approval. Additionally, the proposed new rule establishes an efficient system for reviewing all fire departments using a desk audit, and then provides for an expanded review for select departments based on a risk-assessment analysis.

§819.23. Review of State Agency Policies and Procedures

The Commission proposes new §819.23 to describe the process to be used to review the personnel policies and procedures employed by state agencies for compliance with Texas Labor Code, Chapter 21.

§819.24. Standard Employment Discrimination Training

The Commission proposes §819.24 to set forth the requirements for standard employment discrimination training for all state employees, including minimum standards for the content of such training.

§819.25. Compliance Employment Discrimination Training

The Commission proposes new §819.25, as directed by the Texas Labor Code §21.556, to specify the conditions necessitating compliance training. The proposed rule defines the term complaint with merit as a complaint that is resolved by either a cause finding or a withdrawal of the complaint with a remedy favorable to the complainant. This definition is consistent with terminology used by U.S. Equal Employment Opportunity Commission and avoids both the issue of cost inefficiency and prejudice. According to statute, a state agency that receives three or more "complaints of employment discrimination in a fiscal year, other than complaints determined to be without merit" shall provide comprehensive equal employment opportunity training, referred to as compliance training. In the absence of a statutory definition of complaint without merit, the current rule established an administrative processing test that determines merit based on meeting the initial burden of a prima facie case such that the complaint appears to be a potential case worthy of further investigation. This definition has presented several difficulties. First, it is not cost-efficient, necessitating that CRD use additional time and staff to perform the analysis required in the rule in order to ascertain if it is a complaint with merit. Second, employers argue that labeling a complaint with merit before the investigation is complete and a cause decision rendered is prejudicial to the outcome of the cause determination.

§819.26. Standard and Compliance Employment Discrimination Training Delivery

The Commission proposes new §819.26 to set forth the minimum standards for delivering standard and compliance employment discrimination training.

SUBCHAPTER D. EQUAL EMPLOYMENT OPPORTUNITY COMPLAINTS AND APPEALS PROCESS

§819.41. Filing a Complaint

The Commission proposes new §819.41 to specify the steps to be taken and the requirements to be met to file an employment discrimination complaint.

§819.42. Legal Representation

The Commission proposes new §819.42 to notify complainants and respondents of their right to be represented by an attorney or designated agent during the course of a complaint process.

§819.43. Investigation of a Perfected Complaint

The Commission proposes new §819.43 to set forth the procedures to be followed by the complainant, respondent, and CRD in the investigation of a perfected complaint.

§819.44. Mediation

The Commission proposes new §819.44 to set forth the procedures involved in voluntary mediation, an option available to complainants and respondents who prefer to resolve the perfected complaint jointly prior to CRD completing the investigation and rendering a decision.

§819.45. Subpoena

The Commission proposes new §819.45 to establish CRD's authority to issue a subpoena to compel attendance or secure evidence relevant to the investigation of a perfected complaint and the rights and responsibilities of all parties involved in such an action.

§819.46. Dismissal of Complaint

The Commission proposes new §819.46 to set forth the conditions under which CRD may dismiss a complaint and CRD's responsibilities should such action be taken.

§819.47. Cause Determination

The Commission proposes new §819.47 to set forth the conditions under which CRD determines if there is reasonable cause to believe that the respondent has engaged in an unlawful employment practice and CRD's responsibilities should such action be taken.

§819.48. No Cause Determination

The Commission proposes new §819.48 to set forth the conditions under which CRD determines if there is no reasonable cause to believe that the respondent has engaged in an unlawful employment practice and CRD's responsibilities should such action be taken.

§819.49. Conciliation

The Commission proposes new §819.49 to set forth CRD's intent to achieve a just resolution once a reasonable cause determination is made. Alternative courses of action are presented depending on whether CRD is successful in securing an agreement between the complainant and respondent to eliminate the unlawful practices and provide appropriate relief for the complainant.

§819.50. Right to File a Civil Action

The Commission proposes new §819.50 to specify the conditions under which CRD shall issue a notice of right to file a civil action permitting the complainant to sue in court.

§819.51. Failure to Issue Notice of Right to File a Civil Action

The Commission proposes new §819.51 to cite that CRD's failure to issue a notice of right to file a civil action within the specified time limit does not affect the complainant's right to file a civil action under the Texas Labor Code, Chapter 21.

§819.52. Judicial Enforcement

The Commission proposes new §819.52 to establish CRD's authority to file a civil action against a respondent or intervene in a civil action.

SUBCHAPTER E. EQUAL EMPLOYMENT OPPORTUNITY DEFERRALS

§819.71. Equal Employment Opportunity Deferrals among Federal, State, and Local Agencies

The Commission proposes new §819.71 to set forth the ways in which complaints may be deferred from one level of government to another and to establish at what point the measure for timeliness is triggered.

§819.72. Requirements for a Local Commission

The Commission proposes new §819.72 to identify the procedures to be followed and the conditions to be met for a local commission, recognized by EEOC as a Fair Employment Practices Agency, to be eligible to receive and process complaints.

§819.73. Deferral to Local Commission

The Commission proposes new §819.73 to identify the authority under which a local commission exercises the exclusive right to act upon an employment discrimination complaint and the conditions under which CRD may assume jurisdiction over a complaint deferred to a local commission.

§819.74. Deferral Procedures

The Commission proposes new §819.74 to set forth the responsibilities of the local commission as well as CRD and the procedures involved in deferring an employment discrimination complaint to a local commission.

§819.75. Final Determination of a Local Commission

The Commission proposes new §819.75 to set forth the actions to be taken by a local commission based on the type of decision made regarding an employment discrimination complaint under its jurisdiction.

§819.76. Workshare Agreements

The Commission proposes new §819.76 to specify the means by which the Agency and a local commission shall officially coordinate efforts to process employment discrimination complaints.

SUBCHAPTER F. EQUAL EMPLOYMENT OPPORTUNITY RECORDS AND RECORDKEEPING

§819.91. Preservation and Use

The Commission proposes new §819.91 to establish the requirement that any person under investigation shall retain records pursuant to the Texas Labor Code, Chapter 21.

§819.92. Access to CRD Records

The Commission proposes new §819.92 to specify the conditions under which the party to a perfected complaint may have access to CRD's records.

§819.93. Disposal of Files and Related Documents

The Commission proposes new §819.93 to set forth the conditions for the retention and disposal of CRD files.

SUBCHAPTER G. TEXAS FAIR HOUSING ACT PROVISIONS

§819.111. Purpose

The Commission proposes new §819.111, which states that the purpose of Subchapters G-L is to establish procedures for CRD to execute its responsibilities in the administration and enforcement of the Texas Fair Housing Act.

§819.112. Definitions

The Commission proposes new §819.112 to define terms that pertain exclusively to those subchapters addressing fair housing practices including Subchapter G, Texas Fair Housing Act Provisions; Subchapter H, Discriminatory Housing Practices; Subchapter I, Texas Fair Housing Act Complaints and Appeals Process; Subchapter J, Fair Housing Deferral to Municipalities; Subchapter K, Fair Housing Administrative Hearings and Judicial Review; and Subchapter L, Fair Housing Fund. Terms defined include accessible or readily accessible to and usable by; accessible building entrance; accessible route; building; common use areas; complaint; controlled substance; disability discriminatory housing practice; entrance; exterior; ground floor; interior; modification; premises; public use areas; site; Texas Fair Housing Act; and United States Fair Housing Act.

SUBCHAPTER H. DISCRIMINATORY HOUSING PRACTICES

§819.121. Discrimination Based on Familial Status

The Commission proposes new §819.121, which provides that it is an unlawful housing practice to discriminate based on familial status.

§819.122. Exemptions Based on Familial Status

The Commission proposes new §819.122 to set forth those conditions under which housing designated for the use of elderly residents may be exempted from the provisions of the Texas Fair Housing Act.

§819.123. Discrimination in Sale, Rental, Terms, Conditions, Privileges, Services, and Facilities

The Commission proposes new §819.123 to identify the types of discriminatory actions prohibited with regard to the terms, conditions, or privileges offered with the sale or rental of a dwelling.

§819.124. Other Prohibited Sale and Rental Conduct

The Commission proposes new §819.124 to identify the types of discriminatory actions prohibited that involve steering persons toward or away from property, as well as employing discriminatory practices that involve the sale or rental of property.

§819.125. Discriminatory Advertisements, Statements, and Notices

The Commission proposes new §819.125 to explain how print materials and statements are considered discriminatory if used to express a preference for or limitation on a potential buyer or renter.

§819.126. Discriminatory Representations on the Availability of Dwellings

The Commission proposes new §819.126 to identify the types of prohibited discriminatory actions that provide inaccurate or untrue information about the availability of dwellings.

§819.127. Discriminatory Practices Regarding Entry into a Neighborhood

The Commission proposes new §819.127 to define as unlawful the practice, motivated by profit, of inducing or attempting to induce, or persuading individuals to sell or rent their dwelling by representing that people of a certain race, color, disability, religion, sex, national origin, or familial status are entering the neighborhood.

§819.128. Discrimination in the Selling, Brokering, or Appraising of Residential Real Property

The Commission proposes new §819.128 to define as unlawful any attempt to deny access to or membership in any organization or service related to the selling or renting of dwellings based on race, color, disability, religion, sex, national origin, or familial status.

§819.129. Discrimination in Residential Real Estate Transactions

The Commission proposes new §819.129 to define as unlawful any effort to base the availability, terms, or conditions of a residential real estate transaction on race, color, disability, religion, sex, national origin, or familial status.

§819.130. Discrimination in Making Loans and in the Provision of Other Financial Assistance

The Commission proposes new §819.130 to define as unlawful any failure or refusal to make loans, provide financial assistance, or make information available regarding such assistance based on race, color, disability, religion, sex, national origin, or familial status.

§819.131. Discrimination in Purchasing Loans

The Commission proposes new §819.131 to define as unlawful the refusal to purchase or the imposition of different terms on the purchase of loans, debts, or securities related to residential real estate dealings based on race, color, disability, religion, sex, national origin, or familial status.

§819.132. Discrimination Based on Disability

The Commission proposes new §819.132 to define as unlawful any attempt to deny or make unavailable the rental or sale of a dwelling based on the disability of the potential buyer or renter or someone associated with either. The rule further prohibits an inquiry as to the nature or severity of a disability excepted under certain stated conditions.

§819.133. Discrimination in Refusing Reasonable Modifications of Existing Premises

The Commission proposes new §819.133 to define as unlawful the denial of permission for an individual with a disability to make reasonable modifications to a dwelling and the rights and obligations of both parties in undertaking modifications.

§819.134. Discrimination in Refusing Reasonable Accommodations

The Commission proposes new §819.134 to define as unlawful the refusal to make reasonable accommodations in rules, policies, practices, or services for individuals with disabilities.

§819.135. Discrimination in Design and Construction Requirements

The Commission proposes new §819.135 to set forth the type of physical accommodations for individuals with disabilities that shall be made to a multifamily dwelling after a certain date.

SUBCHAPTER I. TEXAS FAIR HOUSING ACT COMPLAINTS AND APPEALS PROCESS

§819.151. Filing a Complaint

The Commission proposes new §819.151 to specify that a person or the CRD director may file a complaint within a year from the occurrence or termination of an alleged unlawful housing discrimination practice, whichever is later. The new rule also identifies both the steps to be taken and the requirements to be met to file a housing discrimination complaint.

§819.152. Legal Representation

The Commission proposes new §819.152 to notify respondents and complainants of their right to be represented by an attorney or a designated agent during the course of processing a complaint.

§819.153. Investigation of a Complaint

The Commission proposes new §819.153 to set forth the procedures to be followed by the complainant, respondent, and CRD in the investigation of a complaint.

§819.154. Pattern and Practice Complaints

The Commission proposes new §819.154 to identify the conditions under which a complaint shall be designated as a "patterns and practices complaint" signifying the presence of pervasive or institutional discriminatory practices or complex issues or the involvement of a large number of people.

§819.155. Conciliation

The Commission proposes new §819.155 to explain the role and purpose of conciliation in the housing complaint process. The conciliation process for housing complaints differs from employment complaints in the timing of the conciliation. As a term used in processing a housing complaint, conciliation refers to settlement of a dispute by mutual agreement occurring any time beginning with the filing of a complaint and ending with the filing of a charge or the dismissal of the complaint. In an employment complaint, the term conciliation refers to such efforts occurring after a determination of cause has been made.

§819.156. Reasonable Cause Determination and Issuance of a Charge

The Commission proposes new §819.156 to specify the actions to be taken by the CRD director if a conciliation agreement is not reached and the CRD director shall determine whether or not reasonable cause exists to believe that a discriminatory housing practice has occurred. The new rule sets forth actions to be taken based on whether the determination made is a cause or no cause decision or whether the complaint involves the legality of local zoning or land use ordinances.

SUBCHAPTER J. FAIR HOUSING DEFERRAL TO MUNICIPALITIES

§819.171. Deferral

The Commission proposes new §819.171 to set forth the requirements for a HUD-certified municipality to meet in order to receive and process complaints referred by CRD.

§819.172. Memoranda of Understanding

The Commission proposes new §819.172 to specify the means by which the Agency and a municipality shall officially arrange to coordinate efforts to process housing discrimination complaints.

SUBCHAPTER K. FAIR HOUSING ADMINISTRATIVE HEARINGS AND JUDICIAL REVIEW

§819.191. Administrative Hearings

The Commission proposes new §819.191 to provide that administrative hearings shall be conducted by the Agency's Special Hearings Department.

§819.192. Ex Parte Communications

The Commission proposes new §819.192 to set forth the conditions under which a commissioner for the Commission on Human Rights or CRD employee may communicate information involving any issue of fact or law in a case covered by this subchapter.

§819.193. Proposal for Decision and Hearing Officer's Report

The Commission proposes new §819.193 to set forth the different requirements for a proposed decision to the Commission on Human Rights depending on whether the proposed decision is adverse to any party or not. The proposed new rule also specifies the content for the hearing officer's report.

§819.194. Countersignature by the CRD Director

The Commission proposes new §819.194 to require the CRD director to countersign every hearing officer's report and proposal for decision.

§819.195. Oral Argument before the Commission on Human Rights

The Commission proposes new §819.195 to authorize any party to a complaint to present an oral argument before the Commission on Human Rights before final determination.

§819.196. Pleading Before Order

The Commission proposes new §819.196 to authorize the CRD director to permit or request parties to submit briefs and proposed findings of fact after the hearing and before the final decision by the Commission on Human Rights.

§819.197. Form and Content of the Order

The Commission proposes new §819.197 to authorize the Commission on Human Rights to adopt, amend, or reject the hearing officer's proposal for decision and conditions under which the Commission on Human Rights shall vacate, modify, or change a finding of a proposed order.

§819.198. Final Order

The Commission proposes new §819.198 to specify the form that a final order shall take if it is adverse to any party, and the requirements for including findings of fact and conclusions of law.

§819.199. Rehearing

The Commission proposes new §819.199 to provide for a rehearing once a final order has been issued. The new rule details the deadlines to be met by all parties involved.

§819.200. Judicial Review

The Commission proposes new §819.200 to authorize a party involved in a complaint to file a petition for judicial review under the substantial evidence rule.

§819.201. Prohibited Interference, Coercion, Intimidation, or Retaliation

The Commission proposes new §819.201 to define what actions constitute unlawful conduct with regard to interfering with, coercing, intimidating, or retaliating against individuals involved with a housing discrimination issue.

SUBCHAPTER L. FAIR HOUSING FUND

§819.221. Fair Housing Fund

The Commission proposes new §819.221 to provide for the creation of a fund to receive gifts, grants, and assessments of financial penalties that may be used for the administration of the Texas Fair Housing Act.

PART III. IMPACT STATEMENTS

Randy Townsend, Chief Financial Officer, has determined that for each year of the first five years the rules will be in effect, the following statements will apply:

There are no additional estimated costs to the state and local governments expected as a result of enforcing or administering the rules.

There are no estimated reductions in costs to the state and to local governments as a result of enforcing or administering the rules.

There are no estimated losses or increases in revenue to the state or to local governments as a result of enforcing or administering the rules.

There are no foreseeable implications relating to costs or revenue of the state or local governments as a result of enforcing or administering the rules.

There are no anticipated economic costs to persons required to comply with the rules.

There is no anticipated adverse economic impact on small or microbusinesses as a result of enforcing or administering the rules.

Mark Hughes, Director of Labor Market Information, has determined that there is no significant negative impact upon employment conditions in the state as a result of the rules.

Robert Gomez, Director of the Civil Rights Division, has determined that for each year of the first five years the rules are in effect, the public benefit anticipated as a result of enforcing the rules will be streamlined and clearly identified procedures for the processing of employment and housing discrimination complaints, reviewing state agencies' personnel policies and procedures and fire departments' test administration, and providing civil rights training to state agencies.

PART IV. COORDINATION ACTIVITIES

In the development of these rules for publication and public comment, the Commission sought the involvement of the chair of the Commission on Human Rights and the CRD director.

Comments on the proposed rules may be submitted to TWC Policy Comments, Policy and Development, 101 East 15th Street, Room 440T, Austin, Texas 78778; fax 512-475-3577; or e-mailed to TWCPolicyComments@twc.state.tx.us. The Commission must receive comments no later than 30 days from the date this proposal is published in the Texas Register.

Subchapter A. GENERAL PROVISIONS

40 TAC §§819.1 - 819.6

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

The repeal is proposed under Texas Labor Code §301.0015 and §302.002(d), which provides the Texas Workforce Commission with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of Agency services and activities.

The repeal affects Title 4, Texas Labor Code, and Texas Labor Code, Chapter 21, relating to employment discrimination; Texas Property Code, Chapter 301, relating to housing discrimination; and Texas Government Code, Chapter 419, relating to firefighter test review.

§819.1.Definitions.

§819.2.Purpose.

§819.3.General Construction.

§819.4.Authority.

§819.5.Severability.

§819.6.Availability.

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 15, 2005.

TRD-200502446

Reagan Miller

Acting Deputy Director for Workforce and UI Policy

Texas Workforce Commission

Earliest possible date of adoption: July 31, 2005

For further information, please call: (512) 475-0829

Subchapter B. COMMISSION

40 TAC §§819.11 - 819.21

§819.11.General Description.

§819.12.Term of Office.

§819.13.Meetings.

§819.14.Reimbursements.

§819.15.General Powers.

§819.16.Civilian Workforce Composition.

§819.17.Review.

§819.18.Merit Assessment.

§819.19.Compliance Training for State Agencies.

§819.20.Employee Training and Education.

§819.21.Historically Underutilized Business Program.

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 15, 2005.

TRD-200502447

Reagan Miller

Acting Deputy Director for Workforce and UI Policy

Texas Workforce Commission

Earliest possible date of adoption: July 31, 2005

For further information, please call: (512) 475-0829

Subchapter C. LOCAL COMMISSIONS

40 TAC §§819.51 - 819.55

§819.51.Deferral Authority.

§819.52.Deferral Procedures.

§819.53.Final Determination of a Local Commission.

§819.54.Cooperative Agreements.

§819.55.Eligibility.

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 15, 2005.

TRD-200502448

Reagan Miller

Acting Deputy Director for Workforce and UI Policy

Texas Workforce Commission

Earliest possible date of adoption: July 31, 2005

For further information, please call: (512) 475-0829

Subchapter D. ADMINISTRATIVE REVIEW

40 TAC §§819.71 - 819.94

§819.71.Filing a Complaint.

§819.72.Investigation of a Complaint.

§819.73.Subpoena.

§819.74.Dismissal of Complaint.

§819.75.Reasonable Cause Determination.

§819.76.Conciliation.

§819.77.Notice to Complainant.

§819.78.Failure to Issue Notice.

§819.79.Access to Commission Records.

§819.80.Confidentiality.

§819.81.Disposal of Files and Related Documents.

§819.82.Temporary Injunctive Relief.

§819.83.Legal Representation.

§819.84.Policy.

§819.85.Office of Alternative Dispute Resolution.

§819.86.Voluntary Settlement through Alternative Dispute Resolution.

§819.87.Referral of Pending Complaints for Alternative Dispute Resolution.

§819.88.Notification and Objection.

§819.89.Appointment of Mediators.

§819.90.Standards and Duties of Mediators.

§819.91.Compensation of Mediators.

§819.92.Conduct and Decorum.

§819.93.Effect of Written Settlement Agreement.

§819.94.Confidentiality of Communications during Alternative Dispute Resolution Procedures.

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 15, 2005.

TRD-200502449

Reagan Miller

Acting Deputy Director for Workforce and UI Policy

Texas Workforce Commission

Earliest possible date of adoption: July 31, 2005

For further information, please call: (512) 475-0829

Subchapter E. JUDICIAL ACTION

40 TAC §819.101

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

§819.101.Enforcement.

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 15, 2005.

TRD-200502450

Reagan Miller

Acting Deputy Director for Workforce and UI Policy

Texas Workforce Commission

Earliest possible date of adoption: July 31, 2005

For further information, please call: (512) 475-0829

Subchapter F. REPORTS AND RECORDKEEPING

40 TAC §819.111

§819.111.Preservation and Use.

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 15, 2005.

TRD-200502451

Reagan Miller

Acting Deputy Director for Workforce and UI Policy

Texas Workforce Commission

Earliest possible date of adoption: July 31, 2005

For further information, please call: (512) 475-0829

Subchapter G. CONFORMITY

40 TAC §819.121

§819.121.Conformity.

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 15, 2005.

TRD-200502452

Reagan Miller

Acting Deputy Director for Workforce and UI Policy

Texas Workforce Commission

Earliest possible date of adoption: July 31, 2005

For further information, please call: (512) 475-0829

Subchapter H. REVIEW OF FIRE FIGHTER TESTS

40 TAC §819.131

§819.131.Review of Fire Department Tests.

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 15, 2005.

TRD-200502453

Reagan Miller

Acting Deputy Director for Workforce and UI Policy

Texas Workforce Commission

Earliest possible date of adoption: July 31, 2005

For further information, please call: (512) 475-0829

Subchapter I. GENERAL PROVISIONS

40 TAC §§819.151 - 819.157

§819.151.Definitions.

§819.152.Purpose.

§819.153.General Construction.

§819.154.Authority.

§819.155.Severability.

§819.156.Availability.

§819.157.Scope.

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 15, 2005.

TRD-200502454

Reagan Miller

Acting Deputy Director for Workforce and UI Policy

Texas Workforce Commission

Earliest possible date of adoption: July 31, 2005

For further information, please call: (512) 475-0829

Subchapter J. COMMISSION

40 TAC §819.161

§819.161.Powers of the Commission.

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 15, 2005.

TRD-200502455

Reagan Miller

Acting Deputy Director for Workforce and UI Policy

Texas Workforce Commission

Earliest possible date of adoption: July 31, 2005

For further information, please call: (512) 475-0829

Subchapter K. REFERRAL TO MUNICIPALITIES

40 TAC §§819.171 - 819.173

§819.171.Referral Authority.

§819.172.Eligibility.

§819.173.Cooperative Agreements.

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 15, 2005.

TRD-200502456

Reagan Miller

Acting Deputy Director for Workforce and UI Policy

Texas Workforce Commission

Earliest possible date of adoption: July 31, 2005

For further information, please call: (512) 475-0829

Subchapter L. EXEMPTED RESIDENTIAL REAL ESTATE-RELATED TRANSACTIONS

40 TAC §§819.181 - 819.188

§819.181.Sale or Rental of a Single-Family House by an Owner.

§819.182.Sale, Rental, or Occupancy of Dwellings by a Religious Organization, Association, or Society, or a Not for Profit Institution.

§819.183.Housing Owned or Operated by a Private Club.

§819.184.Local or State Restrictions on Maximum Number of Occupants of a Dwelling.

§819.185.Appraisals of Real Property.

§819.186.Familial Status.

§819.187.Illegal Manufacture or Distribution of a Controlled Substance.

§819.188.Health or Safety of Individuals or Damage to Property.

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 15, 2005.

TRD-200502457

Reagan Miller

Acting Deputy Director for Workforce and UI Policy

Texas Workforce Commission

Earliest possible date of adoption: July 31, 2005

For further information, please call: (512) 475-0829

Subchapter M. DISCRIMINATORY HOUSING PRACTICES

40 TAC §§819.191 - 819.199, 819.210 - 819.218

§819.191.Real Estate Practices Prohibited.

§819.192.Unlawful Refusal to Sell or Rent or to Negotiate for the Sale or Rental.

§819.193.Discrimination in Terms, Conditions, and Privileges and in Services and Facilities.

§819.194.Other Prohibited Sale and Rental Conduct.

§819.195.Discriminatory Advertisements, Statements, and Notices.

§819.196.Discriminatory Representations on the Availability of Dwellings.

§819.197.Blockbusting.

§819.198.Discrimination in the Provision of Brokerage Services.

§819.199.Discriminatory Practices in Residential Real-Estate Transactions.

§819.210.Discrimination in the Making of Loans and in the Provision of other Financial Assistance.

§819.211.Discrimination in the Purchasing of Loans.

§819.212.Discrimination in the Terms and Conditions for Making Available Loans or Other Financial Assistance.

§819.213.Unlawful Practices in the Selling, Brokering, or Appraising of Residential Real Property.

§819.214.General Prohibitions Against Discrimination Because of Disability.

§819.215.Reasonable Modifications of Existing Premises.

§819.216.Reasonable Accommodations.

§819.217.Design and Construction Requirements.

§819.218.Prohibited Interference, Coercion, Intimidation, or Retaliation.

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 15, 2005.

TRD-200502458

Reagan Miller

Acting Deputy Director for Workforce and UI Policy

Texas Workforce Commission

Earliest possible date of adoption: July 31, 2005

For further information, please call: (512) 475-0829

Subchapter N. ADMINISTRATIVE ENFORCEMENT

40 TAC §§819.301 - 819.328

§819.301.Submission of Information to File a Complaint.

§819.302.Who May File Complaints.

§819.303.Persons against Whom Complaints May Be Filed.

§819.304.Where To File Complaints.

§819.305.Form and Content of a Complaint.

§819.306.The Date of Filing of a Complaint.

§819.307.Amendment of Complaint.

§819.308.Service of Notice on Aggrieved Person.

§819.309.Notification of Respondent and Joinder of Additional or Substitute Respondents.

§819.310.Answer to Complaint.

§819.311.Investigations.

§819.312.Systemic Processing.

§819.313.Conduct of Investigation.

§819.314.Cooperation with Federal Agencies.

§819.315.Completion of Investigation.

§819.316.Final Investigative Report.

§819.317.Conciliation Process.

§819.318.Conciliation Agreement.

§819.319.Relief Sought for Aggrieved Persons during Conciliation.

§819.320.Conciliation Provisions Relating to Public Interest.

§819.321.Termination of Conciliation Process.

§819.322.Prohibitions and Requirements for Disclosure of Information Obtained during Conciliation.

§819.323.Review of Compliance with Conciliation Agreements.

§819.324.Reasonable Cause Determination.

§819.325.Issuance of Charge.

§819.326.Election of Civil Action or Provision of Administrative Hearing Procedure.

§819.327.Administrative Penalties.

§819.328.Effect of Commission Order.

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 15, 2005.

TRD-200502459

Reagan Miller

Acting Deputy Director for Workforce and UI Policy

Texas Workforce Commission

Earliest possible date of adoption: July 31, 2005

For further information, please call: (512) 475-0829

Subchapter O. ADMINISTRATIVE HEARING PROCEEDINGS

40 TAC §§819.401 - 819.416

§819.401.State Office of Administrative Hearings.

§819.402.Proposal for Decision and Hearing Officer's Report.

§819.403.Countersignature by Executive Director or His or Her Designee.

§819.404.Filing of Exceptions and Replies.

§819.405.Form of Exceptions and Replies.

§819.406.Oral Argument before the Commission.

§819.407.Pleading before Final Decision.

§819.408.Final Decision or Order.

§819.409.Form, Content, and Service.

§819.410.Effective Date of Decision or Order.

§819.411.Administrative Finality.

§819.412.Rehearing.

§819.413.Emergency Orders.

§819.414.Show Cause Orders and Complaints.

§819.415.Ex Parte Communications.

§819.416.Appeals.

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 15, 2005.

TRD-200502460

Reagan Miller

Acting Deputy Director for Workforce and UI Policy

Texas Workforce Commission

Earliest possible date of adoption: July 31, 2005

For further information, please call: (512) 475-0829

Subchapter P. PROMPT JUDICIAL ACTION

40 TAC §§819.421 - 819.423

§819.421.Temporary and Preliminary Relief.

§819.422.Enforcement by Attorney General.

§819.423.Subpoena Enforcement Power.

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 15, 2005.

TRD-200502461

Reagan Miller

Acting Deputy Director for Workforce and UI Policy

Texas Workforce Commission

Earliest possible date of adoption: July 31, 2005

For further information, please call: (512) 475-0829

Subchapter Q. ENFORCEMENT BY PRIVATE PERSON

40 TAC §§819.431 - 819.435

§819.431.Civil Action.

§819.432.Court Appointed Attorney.

§819.433.Relief Granted.

§819.434.Effect of Relief Granted.

§819.435.Intervention by Attorney General.

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 15, 2005.

TRD-200502462

Reagan Miller

Acting Deputy Director for Workforce and UI Policy

Texas Workforce Commission

Earliest possible date of adoption: July 31, 2005

For further information, please call: (512) 475-0829

Subchapter R. OTHER ACTION BY THE COMMISSION

40 TAC §§819.441 - 819.443

§819.441.Licensed or Regulated Businesses.

§819.442.Order in Preceding Five Years.

§819.443.Criminal Penalties.

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 15, 2005.

TRD-200502463

Reagan Miller

Acting Deputy Director for Workforce and UI Policy

Texas Workforce Commission

Earliest possible date of adoption: July 31, 2005

For further information, please call: (512) 475-0829

Subchapter S. PREVAILING PARTY

40 TAC §819.451

§819.451.Prevailing 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 June 15, 2005.

TRD-200502464

Reagan Miller

Acting Deputy Director for Workforce and UI Policy

Texas Workforce Commission

Earliest possible date of adoption: July 31, 2005

For further information, please call: (512) 475-0829

Subchapter T. FAIR HOUSING FUND

40 TAC §819.461

§819.461.Fair Housing Fund.

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 15, 2005.

TRD-200502465

Reagan Miller

Acting Deputy Director for Workforce and UI Policy

Texas Workforce Commission

Earliest possible date of adoption: July 31, 2005

For further information, please call: (512) 475-0829

Subchapter U. STATUTORY AUTHORITY

40 TAC §819.471

§819.471.Statutory Authority.

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 15, 2005.

TRD-200502466

Reagan Miller

Acting Deputy Director for Workforce and UI Policy

Texas Workforce Commission

Earliest possible date of adoption: July 31, 2005

For further information, please call: (512) 475-0829

Subchapter V. EFFECTIVE DATE

40 TAC §819.481

§819.481.Effective Date.

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 15, 2005.

TRD-200502467

Reagan Miller

Acting Deputy Director for Workforce and UI Policy

Texas Workforce Commission

Earliest possible date of adoption: July 31, 2005

For further information, please call: (512) 475-0829

Subchapter A. GENERAL PROVISIONS

40 TAC §§819.1 - 819.3

The new rules are proposed under Texas Labor Code §301.0015 and §302.002(d), which provide the Texas Workforce Commission with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of Agency services and activities.

The new rules affect Title 4, Texas Labor Code, and Texas Labor Code, Chapter 21, concerning employment discrimination; Texas Property Code, Chapter 301, concerning housing discrimination; and the portions of Texas Government Code, Chapter 419, concerning firefighter test review.

§819.1.Purpose.

The purpose of this chapter is to implement the following statutory provisions: Texas Labor Code, Chapter 21 (relating to Employment Discrimination) and Chapter 301, Subchapter I (relating to Civil Rights Division); Texas Property Code, Chapter 301, (relating to Texas Fair Housing Act); and Texas Government Code, Chapter 419, Subchapter F (relating to Review of Fire Department Tests).

§819.2.Definitions.

In addition to the definitions contained in §800.2 of this title, the following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Commission on Human Rights--The body of governance of the Texas Workforce Commission Civil Rights Division composed of seven members appointed by the Governor, as established under Texas Labor Code §301.153.

(2) Complainant--A person claiming to be aggrieved by a violation of Texas Labor Code, Chapter 21, or Texas Property Code, Chapter 301, and who files a complaint under one of these chapters.

(3) CRD--Texas Workforce Commission Civil Rights Division

(4) CRD director--The director, or authorized designee, of the Texas Workforce Commission Civil Rights Division, as established under Texas Labor Code §301.154.

(5) Fair Employment Practices Agency--A state or local government agency designated by the U.S. Equal Employment Opportunity Commission (EEOC) to investigate perfected employment discrimination complaints in the state or local government agency's jurisdiction.

(6) Fair Housing Assistance Program Agency--A state or local government agency designated by the U.S. Department of Housing and Urban Development (HUD) to investigate Fair Housing Act complaints in the state or local government agency's jurisdiction.

(7) Party--A person who, having a justiciable interest in a matter before CRD, is admitted to full participation in a proceeding concerning that matter.

(8) Person--One or more individuals or an association, corporation, joint stock company, labor organization, legal representative, mutual company, partnership, receiver, trust, trustee, trustee in bankruptcy, unincorporated organization, the state, or a political subdivision or agency of the state.

(9) Respondent--A person against whom a complaint has been filed in accordance with Texas Labor Code, Chapter 21, or Texas Property Code, Chapter 301.

§819.3.Roles and Responsibilities of Commission on Human Rights, CRD, and CRD Director.

(a) Responsibilities of Commission on Human Rights:

(1) Establish policies for CRD;

(2) Appoint CRD director;

(3) Supervise CRD director in administering the activities of CRD;

(4) Serve as the state Fair Employment Practices Agency that is authorized, with respect to unlawful employment practices, to:

(A) seek relief;

(B) grant relief; and

(5) Serve as the state Fair Housing Assistance Program Agency, with respect to unlawful housing practices, to:

(A) seek relief;

(B) grant relief; and

(b) Responsibilities of CRD:

(1) Administer Texas Labor Code, Chapter 21; Texas Property Code, Chapter 301; and Texas Government Code, Chapter 419, Subchapter F; and

(2) Collect, analyze, and report statewide information regarding employment and housing discrimination complaints filed with CRD, EEOC, HUD, local commissions, and municipalities in Texas to be included in CRD's annual report to the Governor and the Texas Legislature.

(1) The CRD director is an appointee of the Commission on Human Rights and an employee of the Agency, and therefore accountable to both.

(2) The Agency executive director and the chair of the Commission on Human Rights shall consult on all personnel matters impacting the employment status of the CRD director.

(3) The Commission on Human Rights has the authority to appoint, supervise, and terminate the CRD director.

(4) The Agency executive director, in consultation with the chair of the Commission on Human Rights, has the authority to take any personnel action pursuant to Agency personnel policy, excluding termination.

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 15, 2005.

TRD-200502468

Reagan Miller

Acting Deputy Director for Workforce and UI Policy

Texas Workforce Commission

Earliest possible date of adoption: July 31, 2005

For further information, please call: (512) 475-0829

Subchapter B. EQUAL EMPLOYMENT OPPORTUNITY PROVISIONS

40 TAC §§819.10 - 819.12

§819.10.Purpose.

The purpose of Subchapters B - F of this chapter is to set forth the procedures for CRD to execute its responsibilities in the administration and enforcement of Texas Labor Code, Chapter 21. Texas provides, within constitutional limits, equal employment opportunities and provides rights and remedies substantially equivalent to those granted under federal law. No person shall be subject to discriminatory employment practices based on race, color, disability, religion, sex, national origin, or age.

§819.11.Definitions.

The following words and terms, when used in Subchapter B, Equal Employment Opportunity Provisions; Subchapter C, Equal Employment Opportunity Reports, Training, and Reviews; Subchapter D, Equal Employment Opportunity Complaints and Appeals Process; Subchapter E, Equal Employment Opportunity Deferrals; and Subchapter F, Equal Employment Opportunity Records and Recordkeeping shall have the following meanings, unless the context clearly indicates otherwise.

(1) Bona fide occupational qualification--A qualification:

(A) that is reasonably related to the satisfactory performance of the duties of a job; and

(B) for which there is a factual basis for believing that no members of the excluded group would be able to satisfactorily perform the duties of the job with safety and efficiency.

(2) Civil Rights Act--The Civil Rights Act of 1964, as amended by the Equal Opportunity Act of 1972 and the Civil Rights Act of 1991; the Age Discrimination in Employment Act, as amended; the Rehabilitation Act of 1973, as amended; and the Americans with Disabilities Act of 1990, as amended.

(3) Complaint--A written statement made under oath stating that an unlawful employment practice has been committed, setting forth the facts on which the complaint is based, and received within 180 days of the alleged unlawful employment practice.

(4) Conciliation--The settlement of a dispute by mutual written agreement in order to avoid litigation where a determination has been made that there is reasonable cause to believe an unlawful employment practice has occurred.

(5) Disability--A mental or physical impairment that substantially limits at least one major life activity of an individual, a record of such mental or physical impairment, or being regarded as having such an impairment as set forth in §3(2) of the Americans with Disabilities Act of 1990, as amended, and the Texas Labor Code §21.002(6).

(6) Employer--A person who is engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year and any agent of that person. The term includes an individual elected to public office in Texas or a political subdivision of Texas, or a political subdivision and any state agency or instrumentality, including public institutions of higher education, regardless of the number of individuals employed.

(7) Local commission--Created by one or more political subdivisions acting jointly, pursuant to Texas Labor Code §21.152, and recognized as a Fair Employment Practices Agency by EEOC pursuant to the U.S. Civil Rights Act, Title VII, §717(c), as amended by the Equal Employment Opportunity Act of 1972, the Civil Rights Act of 1991, and the Americans With Disabilities Act, as amended.

(8) Mediation--A process to settle a dispute by mutual written agreement among the complainant, respondent, and CRD prior to reasonable cause determination or dismissal of a perfected complaint.

(9) Perfected complaint--An employment discrimination complaint that CRD has determined meets all of the requirements of the Texas Labor Code, Chapter 21, and for which CRD will initiate an investigation.

§819.12.Unlawful Employment Practices.

(a) Discrimination by Employer. An employer commits an unlawful employment practice if based on race, color, disability, religion, sex, national origin, or age, the employer:

(1) fails or refuses to hire an individual, discharges an individual, or discriminates in any other manner against an individual in connection with compensation or the terms, conditions or privileges of employment; or

(2) limits, segregates, or classifies an employee or applicant for employment in a manner that deprives or tends to deprive an individual of an employment opportunity or adversely affects in any other manner the status of an employee.

(b) Discrimination by Employment Agency. An employment agency commits an unlawful employment practice if based on race, color, disability, religion, sex, national origin, or age, it:

(1) fails or refuses to refer for employment or discriminates in any other manner against an individual; or

(2) classifies or refers an individual for employment on that basis.

(c) Discrimination by Labor Organization. A labor organization commits an unlawful employment practice if based on race, color, disability, religion, sex, national origin, or age, it:

(1) excludes or expels from membership or discriminates in any other manner against an individual; or

(2) limits, segregates, or classifies a member or an applicant for membership, or classifies or fails or refuses to refer for employment an individual in an manner that:

(A) deprives or tends to deprive an individual of any employment opportunity;

(B) limits an employment opportunity or adversely affects in any other manner the status of an employee or of an applicant for employment; or

(d) Admission or Participation in Training Program. An employer, labor organization, or joint labor management committee controlling an apprenticeship, on-the-job training, or other training or retraining program commits an unlawful employment practice based on race, color, disability, religion, sex, national origin, or age in admission to or participation in the program, unless a training or retraining opportunity or program is provided under an affirmative action plan approved by federal or state law, rule, or court order. The prohibition against discrimination based on age applies only to individuals who are at least 40 years of age but younger than 56 years of age.

(e) Retaliation. An employer, employment agency, or labor organization, commits an unlawful employment practice based on race, color, disability, religion, sex, national origin, or age if the employer, employment agency, or labor organization, or retaliates or discriminates against a person who:

(1) opposes a discriminatory practice;

(2) makes or files a charge;

(3) files a complaint; or

(4) testifies, assists, or participates in any manner in an investigation, proceeding, or hearing.

(f) Aiding or Abetting Discrimination. An employer, employment agency, or labor organization commits an unlawful practice if it aids, abets, incites, or coerces a person to engage in an unlawful discriminatory practice based on race, color, disability, religion, sex, national origin, or age.

(g) Interference with the Commission on Human Rights and CRD. An employer, employment agency, or labor organization commits an unlawful practice if it willfully interferes with the performance of a duty or the exercise of a power by the Commission on Human Rights or CRD.

(h) Prevention of Compliance. An employer, employment agency, or labor organization, commits an unlawful employment practice if it willfully obstructs or prevents a person from complying with Texas Labor Code, Chapter 21, or a rule adopted or order issued under Texas Labor Code, Chapter 21.

(i) Discriminatory Notice or Advertisement

(1) An employer, employment agency, labor organization or joint labor-management committee controlling an apprenticeship, on-the-job training, or other training or retraining program commits an unlawful employment practice if it prints or publishes or causes to be printed or published a notice or advertisement relating to employment that:

(A) indicates a preference, limitation, specification, or discrimination based on race, color, disability, religion, sex, national origin, or age; and

(B) concerns an employee's status, employment, or admission to or membership or participation in a labor organization or training or retraining program.

(2) A bona fide occupational qualification is an affirmative defense to discrimination.

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 15, 2005.

TRD-200502469

Reagan Miller

Acting Deputy Director for Workforce and UI Policy

Texas Workforce Commission

Earliest possible date of adoption: July 31, 2005

For further information, please call: (512) 475-0829

Subchapter C. EQUAL EMPLOYMENT OPPORTUNITY REPORTS, TRAINING, AND REVIEWS

40 TAC §§819.21 - 819.26

§819.21.Civilian Workforce Composition Report.

CRD shall prepare a civilian workforce composition report pursuant to Texas Labor Code §21.0035 using the best available data from all appropriate sources.

§819.22.Review of Firefighter Tests.

(a) CRD shall review the initial tests administered by a fire department, as provided in Texas Government Code, Chapter 419. The initial tests defined as written tests, physical tests, and assessment center tests for firefighter positions, are used to measure the ability of a person to perform the essential functions of the position.

(b) CRD shall use the Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. 1607, to conduct the review of the administration of initial tests by fire departments.

(c) CRD shall develop a list of preapproved tests for firefighter positions that it has reviewed, certified, and deemed to be nondiscriminatory. The tests will be available on the Agency's Web site.

(d) Fire departments that use tests from CRD's list of preapproved tests are presumed to be in compliance with the law against unlawful discrimination. However, if CRD perceives the need to review a fire department that is using such preapproved tests, nothing shall prevent such review.

(e) Fire departments that use a test not included on the preapproved list shall submit, upon request by CRD, documentation regarding the reliability and validity of the chosen test.

(f) Each fire department shall submit documentation concerning the administration of its initial tests, as required in this section. CRD shall perform a desk audit by reviewing these documents using risk-assessment criteria. Fire departments selected for a desk audit shall receive notice by mail. Documents to be submitted for a desk audit include, but are not limited to:

(1) a copy of the initial test used. If it is not from CRD's preapproved list of tests, then documentation regarding the reliability and validity of the test used;

(2) a description of how such test is administered and a copy of applicable policies and procedures governing the administration of such test; and

(3) information and documentation of prior complaints lodged against the fire department concerning discrimination in selection of personnel for a firefighter position.

(g) CRD shall evaluate the requested information set forth in subsection (f) of this section as part of its risk-assessment analysis. Based on the analysis, fire departments may be selected for expanded review, including on-site investigation. CRD shall notify a fire department selected for expanded review by mail.

§819.23.Review of State Agency Policies and Procedures.

(a) CRD shall review the personnel policies and procedures of each state agency once every six years on a staggered schedule to determine compliance with the Texas Labor Code, Chapter 21.

(b) CRD shall notify a state agency of its review of the agency's personnel policies and procedures by mail at the beginning of the fiscal year in which CRD is to conduct the review. The review of each state agency shall be completed and recommendations issued on or before the one-year anniversary date on which CRD issued its notification letter to the agency head.

§819.24.Standard Employment Discrimination Training.

(a) Each state agency shall provide its employees with standard employment discrimination training no later than the 30th day after the date the employee is hired by the agency, with supplemental training every two years thereafter. Each state agency shall provide the standard training using a training program from CRD's preapproved list of training programs that have been reviewed and certified by CRD as compliant with its training standards, including the standards set forth in this subchapter.

(b) The minimum standards for the content of standard employment discrimination training shall include, but not be limited to, requiring participants to:

(1) define an unlawful employment practice according to the Civil Rights Act;

(2) apply knowledge of the applicable laws by correctly identifying whether individual case studies would be considered violations;

(3) identify the protected classes under federal and state law;

(4) list a complainant's rights and remedies;

(5) identify the agency personnel to whom a complaint shall be addressed; and

(6) describe the general stages involved in processing a complaint.

§819.25.Compliance Employment Discrimination Training.

(a) For purposes of this section, the term "complaint with merit" shall mean a complaint that is resolved, either by a cause finding or through withdrawal of the complaint with a remedy favorable to the complainant, such as a negotiated settlement, withdrawal with benefits, or conciliation.

(b) State agencies receiving three or more complaints with merit within a fiscal year shall provide compliance employment discrimination training. The compliance training may be provided using a training program from CRD's preapproved list of training programs. If a state agency chooses to provide compliance training using a person or state agency not included on CRD's list of preapproved training programs, the training provider and the training program to be used by the person or state agency shall be reviewed and approved for compliance with CRD standards.

(c) CRD's minimum standards for the content of compliance employment discrimination training shall include, but not be limited to, requiring participants to:

(1) distinguish between disparate treatment and disparate impact;

(2) identify the elements of a complaint involving disparate treatment and disparate impact;

(3) explain the defenses available to an employer resulting from both statute and case law involving disparate treatment and disparate impact;

(4) explain the burden of proof requirements for disparate treatment and disparate impact;

(5) identify criteria for accurately measuring compliance with applicable laws;

(6) define the different types of employment discrimination;

(7) identify the appropriate action to be taken in a situation involving a potential case of employment discrimination; and

(8) describe strategies for prevention of employment discrimination.

§819.26.Standard and Compliance Employment Discrimination Training Delivery.

(a) The minimum standards for the delivery of standard and compliance employment discrimination training shall include, but not be limited to:

(1) a determination of the effectiveness of the training;

(2) the use of training that takes advantage of technological advances, such as videos, CDs, and Web-based delivery systems; and

(3) the documentation of training that shall be provided to CRD, including the date the training was provided, description of the training program used, names of participants, and the agency contact person. Web-based training records may be retained electronically.

(b) In addition to the minimum standards set forth in subsection (a) of this section, the delivery of compliance employment discrimination training shall be highly interactive to ensure the engagement of the trainee.

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 15, 2005.

TRD-200502470

Reagan Miller

Acting Deputy Director for Workforce and UI Policy

Texas Workforce Commission

Earliest possible date of adoption: July 31, 2005

For further information, please call: (512) 475-0829

Subchapter D. EQUAL EMPLOYMENT OPPORTUNITY COMPLAINTS AND APPEALS PROCESS

40 TAC §§819.41 - 819.52

§819.41.Filing a Complaint.

(a) A person may telephone, write, visit, e-mail, fax, or otherwise contact CRD or a local commission office recognized by EEOC as a Fair Employment Practices Agency to obtain information on filing a complaint with CRD.

(b) At the complainant's request, CRD:

(1) shall counsel with the complainant about the facts and circumstances that constitute the alleged unlawful employment practice;

(2) shall assist the complainant in perfecting the complaint if the facts and circumstances appear to constitute an alleged unlawful employment practice; or

(3) may advise the complainant if the facts and circumstances presented to CRD do not appear to constitute an unlawful employment practice.

(1) the CRD office on a CRD-provided form;

(2) an EEOC office; or

(3) a local commission office recognized by EEOC as a Fair Employment Practices Agency.

(d) The complaint shall set forth the following information:

(1) Harm experienced by the complainant as a result of the alleged unlawful employment practice;

(2) Explanation, if any, given by the employer to the complainant for the alleged unlawful employment practice;

(3) A declaration of unlawful discrimination under federal or state law;

(4) Facts upon which the complaint is based, including the date, place, and circumstances of the alleged unlawful employment practice; and

(5) Sufficient information to enable CRD to identify the employer, e.g., employer ID, business address, and business phone.

(e) A complaint shall be filed within 180 days after the date on which the alleged unlawful employment practice occurred.

(f) A complaint may be withdrawn by a complainant only with the consent of the CRD director.

(g) A perfected complaint may be amended by the complainant to cure technical defects or omissions, or to clarify and amplify allegations made therein. Such amendment or amendments alleging additional acts that constitute unlawful employment practices related to or growing out of the subject matter of the original complaint shall relate back to the date the complaint was first filed. CRD shall provide a copy of the perfected complaint to the respondent. An amended perfected complaint shall be subject to the procedures set forth in applicable law.

(h) A respondent shall be mailed a copy of the perfected complaint within 10 days after CRD receives the perfected complaint. If CRD receives a complaint that is not perfected within 180 days of the alleged unlawful employment practice, CRD shall notify the respondent that a complaint has been filed and the process of perfecting the complaint is in progress.

(i) The complainant and respondent shall be notified periodically by CRD of the status of their perfected complaint, unless the notice would jeopardize an undercover investigation by another state, federal, or local government.

§819.42.Legal Representation.

The complainant and respondent may be represented by an attorney or designated agent.

§819.43.Investigation of a Perfected Complaint.

(a) The CRD director shall determine the nature and scope of the investigation within the context of the allegations set forth in the perfected complaint.

(b) CRD may, as part of a perfected complaint investigation, require a fact-finding conference with the complainant and the respondent prior to a determination on a perfected complaint. A fact-finding conference primarily is an investigative forum intended to define the issues, determine which elements are undisputed, and solicit information regarding the allegations.

(1) necessary witnesses for examination under oath or affirmation; and

(2) records, documents, and other information relevant to the investigation of alleged violations of Texas Labor Code, Chapter 21, for inspection and copying.

(d) As part of the perfected complaint investigation, CRD may request information relevant to the alleged violations of Texas Labor Code, Chapter 21. In obtaining this information, CRD may use, but is not limited to using, any of the following:

(1) oral and video interviews and depositions;

(2) written interrogatories;

(3) production of documents and records;

(4) requests for admissions;

(5) on-site inspection of respondent's facilities;

(6) written statements or affidavits; or

(7) other forms of discovery authorized by the Administrative Procedure Act, Texas Government Code §§2001.081 - 2001.103, or the Texas Rules of Civil Procedure.

(e) CRD may establish time requirements regarding responses to requests for information relevant to an investigation of alleged violations of Texas Labor Code, Chapter 21. The CRD director may extend such time requirements for good cause shown.

(f) As part of a perfected complaint investigation, CRD may accept from the complainant or respondent a statement of position or information regarding the allegations in the perfected complaint. CRD shall accept only a sworn or affirmed written statement of position submitted by the respondent setting forth the facts and circumstances relevant to an investigation of alleged violations of Texas Labor Code, Chapter 21.

§819.44.Mediation.

(a) Between filing of a complaint and prior to the cause determination, CRD may invite both the complainant and the respondent to attempt to resolve their dispute through mediation. Either party to the perfected complaint may also request mediation to resolve the complaint during this period.

(b) For mediation to occur, both the complainant and the respondent shall agree to the mediation. If there is no agreement, CRD shall continue with the investigation of the perfected complaint.

(c) If the complainant and respondent reach a settlement and execute a written agreement disposing of the perfected complaint, the agreement is binding and enforceable in the same manner as any other written contract.

(d) If mediation between the complainant and the respondent does not result in an agreement, CRD shall continue to investigate the perfected complaint.

§819.45.Subpoena.

(a) The CRD director shall have the authority to sign and issue a subpoena to compel the attendance of necessary witnesses for examination or testimony under oath or affirmation, and to compel the production of records, documents, and other evidence relevant to the investigation of alleged violations of Texas Labor Code, Chapter 21, for inspection and copying. Neither the complainant nor the respondent shall have the right to demand that a subpoena be issued.

(b) A person served with a subpoena issued by the CRD director who does not intend to comply may petition CRD in writing to revoke or modify the subpoena within five working days after receipt of the subpoena. Such petition shall identify separately each portion of the subpoena with which the petitioner does not intend to comply, and for each portion shall state the grounds upon which the petitioner relies. A copy of the subpoena shall be attached to the petition. The CRD director shall review the petition and make a final determination on revoking or modifying the subpoena. CRD shall mail a copy of the final determination on the petition to the petitioner.

(c) If a person fails to comply with a subpoena, CRD may apply to the district court of the county in which the person is found, resides, or transacts business for an order directing compliance pursuant to Texas Labor Code §21.306(b).

§819.46.Dismissal of Complaint.

(a) The CRD director may dismiss a complaint if:

(1) it is not filed timely;

(2) it fails to state a claim under Texas Labor Code, Chapter 21;

(3) a complainant fails to perfect a complaint within 10 days of the receipt of the complaint; or

(4) a complainant fails to cooperate, fails or refuses to appear or to be available for interviews or conferences, or fails or refuses to provide requested information. Prior to dismissing the complaint, the complainant shall be notified and given a reasonable time to respond.

(b) CRD shall notify the complainant and the respondent, and any agencies, as required by law, by mail of its dismissal of a complaint.

(c) CRD shall notify the complainant, by mail, of the complainant's right to file a civil action against the respondent named in the perfected complaint pursuant to the Texas Labor Code §21.208 and §21.252, and §819.50 of this subchapter.

§819.47.Cause Determination.

(a) The CRD director shall review the investigation report and record of evidence to determine if there is reasonable cause to believe the respondent has engaged in an unlawful employment practice.

(b) If after the review, the CRD director determines that reasonable cause exists, the CRD director shall confer with a panel of three commissioners of the Commission on Human Rights, as identified by the chair of the Commission on Human Rights. If at least two of the three commissioners concur with the CRD director's determination that the respondent has engaged in an unlawful employment practice, the CRD director shall issue a letter of cause determination. The cause determination letter shall be mailed to the complainant, respondent, and any agency as required by law and shall contain the CRD director's finding that the evidence supports the perfected complaint and include an invitation to participate in conciliation.

§819.48.Conciliation.

(a) When a letter of cause determination has been issued, CRD shall attempt to eliminate such unlawful employment practice by conciliation, and to secure a just resolution through a conciliation agreement signed by the complainant, respondent and the CRD director.

(b) CRD shall obtain proof of the respondent's compliance with a conciliation agreement before the case is closed.

(c) CRD shall notify the complainant and respondent by mail of an unsuccessful conciliation agreement. CRD shall then inform the complainant by mail of the complainant's right to file a civil action against the respondent named in the perfected complaint, pursuant to Texas Labor Code §§21.208 - 21.252.

§819.49.No Cause Determination.

A completed investigation may result in a determination that there is no reasonable cause to believe that the respondent has engaged in an unlawful employment practice as alleged in the perfected complaint. If after the review, the CRD director determines that no reasonable cause exists, the CRD director shall issue a letter of no cause determination. The no cause determination letter shall be mailed to the complainant, respondent, and any agency as required by law and shall contain the CRD director's finding that the evidence does not support the perfected complaint.

§819.50.Right to File a Civil Action.

(a) CRD shall inform the complainant by mail of:

(1) the dismissal of a complaint filed with CRD; or

(2) the expiration of 180 days after the date of filing of an unresolved complaint and the complainant's right to request from CRD a notice of right to file a civil action. Upon receipt of a written request, CRD shall issue a notice of right to file a civil action.

(b) Before the expiration of 180 days after filing the complaint and upon a written request from a complainant, CRD shall issue a notice of right to file a civil action if:

(1) written confirmation by a physician licensed to practice medicine in Texas states that the complainant has a life threatening illness; or

(2) certification by the CRD director states that the administrative processing of the perfected complaint cannot be completed before the expiration of the 180th day after the complaint was filed. The certification shall take into account the exigent circumstances of the complainant.

(c) The complainant's written request shall include the respondent's name, CRD complaint number, and EEOC complaint number if the complaint has been deferred by EEOC. CRD shall issue notice by mail no later than the fifth business day after receipt of the complainant's request.

§819.51.Failure to Issue Notice of Right to File a Civil Action.

CRD's failure to issue a notice of right to file a civil action after 180 days from the date the complaint is received by CRD does not affect the complainant's right to bring a civil action against the respondent under Texas Labor Code §21.252(d).

§819.52.Judicial Enforcement.

(a) CRD may bring a civil action against a respondent named in a perfected complaint pursuant to the requirements of Texas Labor Code §21.251.

(b) Upon a determination by CRD to bring a civil action, it shall notify the complainant by certified mail.

(c) On a majority vote of the Commission on Human Rights, CRD may pursue intervention in a civil action pursuant to the requirements of Texas Labor Code §21.255.

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 15, 2005.

TRD-200502471

Reagan Miller

Acting Deputy Director for Workforce and UI Policy

Texas Workforce Commission

Earliest possible date of adoption: July 31, 2005

For further information, please call: (512) 475-0829

Subchapter E. EQUAL EMPLOYMENT OPPORTUNITY DEFERRALS

40 TAC §§819.71 - 819.76

§819.71.Equal Employment Opportunity Deferrals among Federal, State, and Local Agencies.

For the purpose of satisfying the filing requirements of the Texas Labor Code §21.201, the following shall apply:

(1) For a complaint filed with CRD over which EEOC has deferred jurisdiction, timeliness of the complaint shall be determined by the date the complaint is received by CRD.

(2) For a complaint filed with EEOC and deferred to CRD, timeliness of the complaint shall be determined by the date on which the complaint is received by EEOC.

(3) For a complaint filed with a local commission and deferred to CRD, timeliness of the complaint shall be determined by the date on which the complaint is received by the local commission.

§819.72.Requirements for a Local Commission.

(a) To be a local commission eligible to receive deferrals from CRD, pursuant to Texas Labor Code §§21.151 - 21.156, and this chapter, the following materials and information shall be submitted to CRD:

(1) A letter from EEOC verifying the local commission's designation as a Fair Employment Practices Agency;

(2) A copy of the local ordinance that prohibits practices designated as unlawful under Texas Labor Code, Chapter 21;

(3) A copy of rules, policies, and procedures governing the operations of the local commission;

(4) A copy of an organizational chart of the internal structure of the local commission and its relationship to the governing authorities of the political subdivision or subdivisions of which it is a part; and

(5) A copy of the local commission's budget and resources.

(b) Upon examination of the materials and information provided by a local commission, the CRD director shall provide written notification to the local commission of its eligibility to receive deferrals.

(c) If CRD determines that the local commission is not eligible to receive deferrals, it shall identify in writing the reasons and provide the local commission the necessary assistance to comply with the requirements established by Texas Labor Code §§21.151 - 21.156, and this chapter.

§819.73.Deferral to Local Commission.

(a) Texas Labor Code §21.155, grants to a local commission the exclusive right to take appropriate action within the scope of its power and jurisdiction to process a complaint deferred by CRD pursuant to the requirements of Texas Labor Code §21.155, and this chapter.

(b) CRD shall not assume jurisdiction over a complaint deferred to a local commission, pursuant to Texas Labor Code §21.155, except:

(1) where the local commission defers a complaint under its jurisdiction to CRD;

(2) where the complaint is received by CRD within 180 days of the alleged violation but beyond the period of limitation of the appropriate local commission; and

(3) where the local commission has not acted on the complaint pursuant to the requirements of Texas Labor Code §21.155(c), and this chapter.

§819.74.Deferral Procedures.

(a) CRD shall defer a complaint subject to Texas Labor Code §21.155(a) to a local commission within five working days of the date the complaint is received.

(b) A local commission may waive its right to the period of exclusive processing of a complaint with respect to any complaint or category of complaint by deferring a matter under its jurisdiction to CRD, pursuant to Texas Labor Code §21.156.

(c) All complaints received by CRD subject to deferral to a local commission shall be dated and time stamped upon receipt.

(d) CRD shall transmit a copy of a complaint it receives that is subject to deferral to a local commission by certified mail to the appropriate local commission. Proceedings by the local commission are deemed to have commenced on the date such complaint is mailed.

(e) A local commission shall transmit to CRD by certified mail, a copy of a complaint deferred to it by EEOC and over which CRD has deferral jurisdiction.

(f) CRD shall notify the complainant and respondent in writing that it has forwarded the complaint to the local commission.

§819.75.Final Determination of a Local Commission.

(a) A local commission shall submit to CRD by mail, a copy of the document from the local commission stating the final determination as to the merits of a deferred complaint, or a copy of the document stating the appropriate action taken by the local commission to resolve the practice alleged as discriminatory in a deferred complaint.

(b) For purposes of satisfying Texas Labor Code §21.208 and §§21.251 - 21.256, a local commission shall submit to CRD by mail notification of the dismissal of a deferred complaint, or shall submit, within 120 days of the date the complaint is deferred by CRD, written notification if the local commission has not filed a civil action or has not successfully negotiated a conciliation agreement between the complainant and respondent. A local commission shall notify CRD within five working days if the local commission does not intend to act on a complaint deferred by CRD.

§819.76.Workshare Agreements.

The Agency shall enter into workshare agreements with EEOC and local commissions to ensure an effective and integrated administrative review procedure, share information, and provide technical assistance and training.

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 15, 2005.

TRD-200502472

Reagan Miller

Acting Deputy Director for Workforce and UI Policy

Texas Workforce Commission

Earliest possible date of adoption: July 31, 2005

For further information, please call: (512) 475-0829

Subchapter F. EQUAL EMPLOYMENT OPPORTUNITY RECORDS AND RECORDKEEPING

40 TAC §§819.91 - 819.93

§819.91.Preservation and Use.

CRD shall require a person under investigation to make and keep records pursuant to the requirements of Texas Labor Code §§21.301 - 21.303.

§819.92.Access to CRD Records.

Pursuant to Texas Labor Code §21.304 and §21.305, CRD shall, on written request of a party to a perfected complaint filed under Texas Labor Code §21.201, allow the party access to CRD's records, unless the perfected complaint has been resolved through a voluntary settlement or conciliation agreement, if:

(1) following the final action of CRD, a party to the perfected complaint or the party's attorney certifies in writing that a civil action is to be filed under Texas Labor Code, Chapter 21, within 60 days from the date of receipt of CRD's notice of right to file a civil action, or a civil action under Texas Labor Code, Chapter 21, is pending in state court; or

(2) a party to the perfected complaint or the party's attorney certifies in writing that a civil action relating to the perfected complaint is pending in federal court alleging a violation of federal law.

§819.93.Disposal of Files and Related Documents.

Pursuant to a certified records retention schedule, CRD shall retain case files and related documents that have not been forwarded to EEOC for two years after the administrative review procedures have been completed, except when a civil action has been filed in state court under Texas Labor Code, Chapter 21. When a civil action has been filed in state court, case files and related documents shall be retained until the final disposition of the lawsuit. At the end of the two-year period, CRD may dispose of the case files and related documents.

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 15, 2005.

TRD-200502473

Reagan Miller

Acting Deputy Director for Workforce and UI Policy

Texas Workforce Commission

Earliest possible date of adoption: July 31, 2005

For further information, please call: (512) 475-0829

Subchapter G. TEXAS FAIR HOUSING ACT PROVISIONS

40 TAC §819.111, §819.112

§819.111.Purpose.

The purpose of Subchapters G - L of this chapter is to establish procedures for CRD to execute its responsibilities in the administration and enforcement of the Texas Fair Housing Act. Texas provides, within constitutional limitations, for fair housing throughout the state and provides rights and remedies substantially equivalent to those granted under federal law. No person shall be subject to discriminatory housing practices based on race, color, disability, religion, sex, national origin, or familial status in the sale, rental, advertising of dwellings, inspection of dwellings, entry into a neighborhood, or in the provision of brokerage services or in the availability of residential real estate-related transactions.

§819.112.Definitions.

The following words and terms, when used in Subchapter G, Texas Fair Housing Act Provisions; Subchapter H, Discriminatory Housing Practices; Subchapter I, Texas Fair Housing Act Complaints and Appeals Process; Subchapter J, Fair Housing Deferral to Municipalities; Subchapter K, Fair Housing Administrative Hearings and Judicial Review; and Subchapter L, Fair Housing Fund, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Accessible or readily accessible to and usable by--A public or common use area that is accessible by individuals with disabilities, as set forth in Texas Property Code, §301.025(c). Compliance with the appropriate requirements of the American National Standards Institute (ANSI) for buildings and facilities providing accessibility and usability for persons having physical disabilities, commonly cited as ANSI A117.1, satisfies this requirement.

(2) Accessible building entrance--A building entrance that is accessible by individuals with disabilities, as set forth in Texas Property Code, §301.025(c). Compliance with the appropriate requirements of ANSI for buildings and facilities providing accessibility and usability for persons having physical disabilities, commonly cited as ANSI A117.1, satisfies this requirement.

(3) Accessible route--A route that is accessible by individuals with disabilities, as set forth in Texas Property Code, §301.025(c). Compliance with the appropriate requirements of ANSI for buildings and facilities providing accessibility and usability for persons having physical disabilities, commonly cited as ANSI A117.1, satisfies this requirement.

(4) Building--A structure, facility, or the portion thereof that contains or serves one or more dwelling units.

(5) Common use areas--Rooms, spaces, or elements inside or outside of a building that are made available for the use of residents or the guests of a building. These areas include, but are not limited to, hallways, lounges, lobbies, laundry rooms, refuse rooms, mailrooms, recreational areas, and passageways among and between buildings.

(6) Complaint--A written statement made under oath stating that an unlawful housing practice has been committed, setting forth the facts on which the complaint is based, and received within one year of the date the alleged unlawful housing practice occurred or terminated, whichever is later, and for which CRD shall initiate an investigation.

(7) Controlled substance--Any drug or other substance or immediate precursor as defined in the Controlled Substances Act, §102, 21 U.S.C. §802.

(8) Disability--A mental or physical impairment that substantially limits at least one major life activity, a record of such an impairment, or being regarded as having such an impairment. The term does not include current illegal use of or addiction to any drug or illegal or federally controlled substance; and reference to "an individual with a disability" or perceived as "disabled" does not apply to an individual based on that individual's sexual orientation or because that individual is a transvestite. As used in this definition, physical or mental impairment includes:

(A) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine; or

(B) any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. The term "physical or mental impairment" includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech and hearing impairments, cerebral palsy, autism, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, human immunodeficiency virus infection, mental retardation, emotional illness, drug addiction (other than addiction caused by current, illegal use of a controlled substance);

(C) any major life activities such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working;

(D) having a record of such an impairment such as a history of, or misclassification as having, a mental or physical impairment that substantially limits one or more major life activity; and

(E) being regarded as having a physical or mental impairment that does not substantially limit one or more major life activity but that is treated by another person as constituting such a limitation; having a physical or mental impairment that substantially limits one or more major life activity only as a result of the attitudes of others toward such impairment; or having no physical or mental impairment but is treated by another person as having such an impairment.

(9) Discriminatory housing practice--An action prohibited by Texas Fair Housing Act, Subchapter B, or conduct that is an offense under Texas Fair Housing Act, Subchapter I.

(10) Entrance--Any access point to a building or portion of a building used by residents for the purpose of entering the building.

(11) Exterior--All areas of the premises outside of an individual dwelling unit.

(12) Ground floor--Within a building, any floor with an entrance on an accessible route. A building may have more than one ground floor.

(13) Interior--The spaces, parts, components, or elements of an individual dwelling unit.

(14) Modification--Any change to the public or common use areas of a building or any change to a dwelling unit.

(15) Premises--The interior or exterior spaces, parts, components, or elements of a building, including individual dwelling units and the public and common use areas of a building.

(16) Public use areas--Interior or exterior rooms or spaces of a building that are made available to the general public. Public use may be provided at a building that is privately or publicly owned.

(17) Site--A parcel of land bounded by a property line or a designated portion of a public right of way.

(18) Texas Fair Housing Act--Texas Property Code, Chapter 301.

(19) United States Fair Housing Act--Title VIII of the Civil Rights Act of 1968, as amended by the Fair Housing Amendments Act of 1988.

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 15, 2005.

TRD-200502474

Reagan Miller

Acting Deputy Director for Workforce and UI Policy

Texas Workforce Commission

Earliest possible date of adoption: July 31, 2005

For further information, please call: (512) 475-0829

Subchapter H. DISCRIMINATORY HOUSING PRACTICES

40 TAC §§819.121 - 819.135

§819.121.Discrimination Based on Familial Status.

It is an unlawful housing practice to discriminate based on familial status. Familial status includes:

(1) pregnancy;

(2) being domiciled with an individual younger than 18 years of age in regard to whom the person is the parent or legal custodian or has the written permission of the parent or legal custodian for domicile with that person; or

(3) being in the process of obtaining legal custody of an individual younger than 18 years of age.

§819.122.Exemptions Based on Familial Status.

(a) The Texas Fair Housing Act regarding discrimination based on familial status does not apply to housing designed and operated specifically to assist elderly individuals.

(b) The Texas Fair Housing Act does not apply to housing intended for and solely occupied by individuals 62 years of age or older. This exemption shall apply regardless of the fact that:

(1) there were individuals residing in such housing on September 13, 1988, who were under 62 years of age, provided that all new occupants are 62 years of age or older;

(2) there are unoccupied units, provided that such units are reserved for occupancy for individuals 62 years of age or older; or

(3) there are units occupied by employees of the housing (and family members residing in the same unit) who are under 62 years of age provided they perform substantial duties directly related to the management or maintenance of the housing.

(c) The Texas Fair Housing Act does not apply to housing intended and operated for occupancy by individuals 55 years of age or older if:

(1) at least 80% of the units in the housing facility are occupied by at least one person 55 years of age or older. However:

(A) a newly constructed housing facility for first occupancy after March 12, 1989, need not comply with this 80% occupancy requirement until 25% of the units in the facility are occupied; and

(B) a housing facility or community may not evict, refuse to renew leases, or otherwise penalize families with children in order to achieve occupancy of at least 80% of the occupied units by at least one person 55 years of age or older;

(2) the owner or manager of a housing facility publishes and adheres to policies and procedures that demonstrate an intent by the owner or manager to provide housing for individuals 55 years of age or older. The following factors, among others, are relevant in determining whether the owner or manager of a housing facility has complied with the requirements of this paragraph:

(A) The manner in which the housing facility is described to prospective residents;

(B) The nature of any advertising designed to attract prospective residents;

(D) Lease provisions;

(E) Written rules and regulations;

(F) Actual practices of the housing facility or community; and

(G) Public posting in common areas of statements describing the facility or community as housing for individuals 55 years of age or older; and

(3) the housing facility satisfies the requirements of this section regardless of the fact that:

(A) as of September 13, 1988, under 80% of the occupied units in the housing facility were occupied by at least one person 55 years of age or older, provided that at least 80% of the units that were occupied by new occupants after September 13, 1988, were occupied by at least one person 55 years of age or older;

(B) there are unoccupied units, provided that at least 80% of such units are reserved for occupancy by at least one person 55 years of age or older; and

(C) there are units occupied by employees of the housing facility (and family members residing in the same unit) who are under 55 years of age provided they perform substantial duties directly related to the management or maintenance of the housing.

§819.123.Discrimination in Sale, Rental, Terms, Conditions, Privileges, Services, and Facilities.

(a) It is unlawful to discriminate based on race, color, disability, religion, sex, national origin, or familial status by imposing different terms, conditions, or privileges relating to the sale or rental of a dwelling or to deny or limit services or facilities in connection with the sale or rental of a dwelling.

(b) Prohibited actions under this section include, but are not limited to:

(1) using different provisions in leases or contracts of sale, such as those relating to rental charges, security deposits, and the terms of a lease and those relating to down payment and closing requirements based on race, color, disability, religion, sex, national origin, or familial status;

(2) failing to maintain or repair or delaying maintenance or repairs of sale or rental dwellings based on race, color, disability, religion, sex, national origin, or familial status;

(3) failing to process an offer for the sale or rental of a dwelling or to communicate an offer accurately based on race, color, disability, religion, sex, national origin, or familial status;

(4) limiting the use of privileges, services, or facilities associated with a dwelling based on race, color, disability, religion, sex, national origin, or familial status; and

(5) denying or limiting services or facilities in connection with the sale or rental of a dwelling because a person failed or refused to provide sexual favors.

§819.124.Other Prohibited Sale and Rental Conduct.

(a) It is unlawful to discriminate based on race, color, disability, religion, sex, national origin, or familial status by restricting or attempting to restrict the choices of a person by word or conduct in connection with seeking, negotiating for, buying, or renting a dwelling so as to perpetuate, or tend to perpetuate, segregated housing patterns, or to discourage or obstruct choices in a community, neighborhood, or development. Prohibited practices under this section generally refer to unlawful steering practices that include, but are not limited to, discrimination by:

(1) discouraging any person from inspecting, purchasing, or renting a dwelling based on race, color, disability, religion, sex, national origin, or familial status in a community, neighborhood, or development;

(2) discouraging the purchase or rental of a dwelling based on race, color, disability, religion, sex, national origin, or familial status by exaggerating drawbacks or failing to inform any person of desirable features of a dwelling or of a community, neighborhood, or development;

(3) communicating to a potential buyer or renter that he or she would not be comfortable or compatible with existing residents of a community, neighborhood, or development based on race, color, disability, religion, sex, national origin, or familial status; and

(4) assigning any person to a particular section of a community, neighborhood, or development or to a particular floor of a building based on race, color, disability, religion, sex, national origin, or familial status.

(b) It is unlawful to discriminate based on race, color, disability, religion, sex, national origin, or familial status by engaging in any conduct relating to the provision of housing or of services and facilities in connection therewith that otherwise makes unavailable or denies dwellings to individuals. Prohibited sales and rental practices under this section include, but are not limited to, discrimination by:

(1) discharging or taking other adverse action against an employee, broker, or agent because he or she refused to participate in a discriminatory housing practice;

(2) employing codes or other devices to segregate or reject potential buyers or renters; refusing to take or to show listings of dwellings in certain areas based on race, color, disability, religion, sex, national origin, or familial status; or refusing to deal with certain brokers or agents because they or one or more of their clients are of a particular race, color, disability, religion, sex, national origin, or familial status;

(3) denying or delaying the processing of an application made by a potential buyer or renter or refusing to approve such a person for occupancy in a cooperative or condominium dwelling based on race, color, disability, religion, sex, national origin, or familial status; and

(4) refusing to provide municipal services or property or hazard insurance for dwellings or providing such services or insurance differently based on race, color, disability, religion, sex, national origin, or familial status.

§819.125.Discriminatory Advertisements, Statements, and Notices.

(a) It is unlawful to discriminate based on race, color, disability, religion, sex, national origin, or familial status by making, printing, or publishing, or causing to be made, printed, or published, any notice, statement, or advertisement with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination, or an intention to make any such preference, limitation, or discrimination.

(b) The prohibitions in this section shall apply to all written or oral notices or statements by a person engaged in the sale or rental of a dwelling. Written notices and statements include any applications, flyers, brochures, deeds, signs, banners, posters, billboards, electronic communications, or any documents used with respect to the sale or rental of a dwelling.

(1) using words, phrases, photographs, illustrations, symbols, or forms that convey that dwellings are available or not available to a particular group of individuals based on race, color, disability, religion, sex, national origin, or familial status;

(2) expressing to agents, brokers, employees, prospective sellers or renters, or any other individuals a preference for or limitation on any potential buyer or renter based on race, color, disability, religion, sex, national origin, or familial status;

(3) selecting media or locations for advertising the sale or rental of dwellings that deny particular segments of the housing market information about housing opportunities based on race, color, disability, religion, sex, national origin, or familial status; and

(4) refusing to publish advertising for the sale or rental of dwellings or requiring different charges or terms for such advertising based on race, color, disability, religion, sex, national origin, or familial status.

§819.126.Discriminatory Representations on the Availability of Dwellings.

(a) It is unlawful to discriminate, based on race, color, disability, religion, sex, national origin, or familial status, by providing inaccurate or untrue information about the availability of dwellings for sale or rent.

(b) Prohibited actions under this section include, but are not limited to:

(1) indicating through words or conduct that a dwelling that is available for inspection, sale, or rent has been sold or rented based on race, color, disability, religion, sex, national origin, or familial status;

(2) representing that covenants or other deed, trust, or lease provisions that purport to restrict the sale or rental of dwellings based on race, color, disability, religion, sex, national origin, or familial status preclude the sale or rental of a dwelling to a person;

(3) enforcing covenants or other deed, trust, or lease provisions that preclude the sale or rental of a dwelling to any person based on race, color, disability, religion, sex, national origin, or familial status;

(4) limiting information, through words or conduct, regarding suitably priced dwellings available for inspection, sale, or rent based on race, color, disability, religion, sex, national origin, or familial status; and

(5) providing false or inaccurate information regarding the availability of a dwelling for sale or rent to any person, including testers, regardless of whether such person is actually seeking housing based on race, color, disability, religion, sex, national origin, or familial status.

§819.127.Discriminatory Practices Regarding Entry into a Neighborhood.

(a) It is unlawful to discriminate based on race, color, disability, religion, sex, national origin, or familial status by inducing or attempting to induce for profit a person to sell or rent a dwelling by representations regarding the entry or prospective entry into the neighborhood of an individual or group of individuals.

(b) Prohibited actions under this section include, but are not limited to:

(1) engaging in conduct (including uninvited solicitations for listings) that conveys to a person that a neighborhood is undergoing or is about to undergo a change in the race, color, disability, religion, sex, national origin, or familial status of individuals residing in it or in order to encourage the person to offer a dwelling for sale or rent; and

(2) encouraging a person to sell or rent a dwelling through assertions that the entry or prospective entry of individuals of a particular race, color, disability, religion, sex, national origin, or familial status can or will result in undesirable consequences for the project, neighborhood, or community, such as a lowering of property values, an increase in criminal or antisocial behavior, or a decline in the quality of schools or other services or facilities.

§819.128.Discrimination in the Selling, Brokering, or Appraising of Residential Real Property.

(a) It is unlawful for a person whose business includes engaging in selling, brokering, or appraising of residential real property to discriminate based on race, color, disability, religion, sex, national origin, or familial status.

(b) It is unlawful to discriminate based on race, color, disability, religion, sex, national origin, or familial status by denying any person access to or membership or participation in any multiple listing service, real estate brokers' organization, or other service, organization, or facility relating to the business of selling or renting dwellings, or to discriminate against any person in the terms or conditions of such access, membership, or participation.

(1) setting different fees for access to or membership in a multiple listing service;

(2) denying or limiting benefits accruing to members in a real estate brokers' organization;

(3) imposing different standards or criteria for membership in a real estate sales or rental organization; and

(4) establishing geographic boundaries or office location or residence requirements for access to, or membership or participation in, any multiple listing service, real estate brokers' organization, or other service, organization, or facility relating to the business of selling or renting dwellings.

(d) For the purposes of this section, the term "appraisal" shall mean an estimate or opinion of the value of a residential real property made in a business context in connection with the sale, rental, financing, or refinancing of a dwelling or in connection with any activity that otherwise affects the availability of a residential real estate-related transaction, whether the appraisal is oral or written, or transmitted formally or informally. The appraisal includes all written comments and other documents submitted as support for the estimate or opinion of value.

(e) Practices that are unlawful under this section include, but are not limited to, using an appraisal of residential real property in connection with the sale, rental, or financing of any dwelling where the person knows or reasonably should know that the appraisal improperly takes into consideration race, color, disability, religion, sex, national origin, or familial status.

§819.129.Discrimination in Residential Real Estate Transactions.

It is unlawful for a person whose business includes engaging in residential real estate-related transactions to discriminate based on race, color, disability, religion, sex, national origin, or familial status in making such a transaction available or in the terms or conditions of such a transaction.

§819.130.Discrimination in Making Loans and in the Provision of Other Financial Assistance.

(a) It is unlawful for a person whose business includes engaging in residential real estate-related transactions to discriminate based on race, color, disability, religion, sex, national origin, or familial status in making loans or other financial assistance available for a dwelling, or which is or is to be secured by a dwelling.

(b) It is unlawful for a person engaged in making loans or in the provision of other financial assistance relating to the purchase, construction, improvement, repair, or maintenance of dwellings or that are secured by residential real estate to impose different terms or conditions for the availability of such loans or other financial assistance based on race, color, disability, religion, sex, national origin, or familial status.

(1) failing or refusing to provide to a person, in connection with a residential real estate-related transaction, information regarding the availability of loans or other financial assistance, application requirements, procedures, or standards for the review and approval of loans or financial assistance, or providing information that is inaccurate or different from that provided to others based on race, color, disability, religion, sex, national origin, or familial status;

(2) using different policies, practices, or procedures in evaluating or determining creditworthiness of any person in connection with the provision of a loan or other financial assistance for a dwelling or for a loan or other financial assistance that is secured by residential real estate based on race, color, disability, religion, sex, national origin, or familial status; and

(3) determining the type of loan or other financial assistance to be provided with respect to a dwelling, or fixing the amount, interest rate, duration, or other terms of a loan or other financial assistance for a dwelling or for a loan or other financial assistance that is secured by residential real estate based on race, color, disability, religion, sex, national origin, or familial status.

§819.131.Discrimination in Purchasing Loans.

(a) It is unlawful for a person engaged in the purchasing of loans or other debts or securities that support the purchase, construction, improvement, repair, or maintenance of a dwelling, or that are secured by residential real estate, to discriminate based on race, color, disability, religion, sex, national origin, or familial status by refusing to purchase such loans, debts, or securities, or by imposing different terms or conditions for such purchases.

(b) Unlawful conduct under this section includes, but is not limited to:

(1) purchasing loans or other debts or securities that relate to or are secured by dwellings in certain communities or neighborhoods but not in others based on race, color, disability, religion, sex, national origin, or familial status;

(2) pooling or packaging loans or other debts or securities differently that relate to or are secured by dwellings based on race, color, disability, religion, sex, national origin, or familial status; and

(3) imposing or using different terms or conditions on the marketing or sale of securities issued on the basis of loans or other debts or securities that relate to or are secured by dwellings based on race, color, disability, religion, sex, national origin, or familial status.

(c) This section does not prevent consideration of factors justified by business necessity in the purchasing of loans, including requirements of state or federal law relating to a transaction's financial security or to protection against default or reduction of the value of the security. Thus, this provision does not preclude considerations employed in normal and prudent transactions provided that no such factor may in any way relate to race, color, disability, religion, sex, national origin, or familial status.

§819.132.Discrimination Based on Disability.

(a) It is unlawful to discriminate in the sale, rental, terms, conditions, or privileges of the sale or rental, or to otherwise make unavailable or deny, a dwelling to a potential buyer or renter based on a disability of:

(1) the potential buyer or renter;

(2) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or

(3) any person associated with that person.

(b) It is unlawful to discriminate against any person in the terms, conditions, or privileges of the sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a disability of:

(1) that buyer or renter;

(2) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or

(3) any person associated with that person.

(c) It is unlawful to make an inquiry to determine whether a potential buyer or renter of a dwelling, a person intending to reside in that dwelling after it is sold, rented, or made available, or any person associated with that potential buyer or renter has a disability. However, this section does not prohibit the following inquiries, provided they are made of each potential buyer or renter, whether or not the person has a disability:

(1) Whether the potential buyer or renter is able to meet the requirements of ownership or tenancy;

(2) Whether the potential buyer or renter qualifies for a dwelling available only to individuals with disabilities or to people with a particular type of disability;

(3) Whether the potential buyer or renter qualifies for a priority available to individuals with disabilities or to people with a particular type of disability;

(4) Whether the potential buyer or renter is a current illegal abuser or addict of a controlled substance; or

(5) Whether the potential buyer or renter has been convicted of the illegal manufacture or distribution of a controlled substance.

§819.133.Discrimination in Refusing Reasonable Modifications of Existing Premises.

(a) It is unlawful for a person to refuse to allow, at the expense of an individual with a disability, reasonable modifications of existing premises, occupied or to be occupied by an individual with a disability, if the proposed modifications may be necessary to afford the individual with a disability full enjoyment of the premises of a dwelling. In the case of a rental, the landlord may, where it is reasonable to do so, condition permission for a modification on the renter agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted. The landlord may not increase a customarily required security deposit for individuals with disabilities. However, where it is necessary to ensure with reasonable certainty that funds are available to pay for the restorations at the end of the tenancy, the landlord may negotiate as part of such a restoration agreement a provision requiring that the tenant pay into an interest-bearing escrow account, over a reasonable period, a reasonable amount of money not to exceed the cost of the restorations. The interest in any such account shall accrue to the benefit of the tenant.

(b) As a condition for granting a renter permission for a modification, a landlord may require a reasonable description of the proposed modifications, reasonable assurances that the work will be done in a workmanlike manner, and assurances that required building permits will be obtained.

§819.134.Discrimination in Refusing Reasonable Accommodations.

It is unlawful for a person to refuse to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford an individual with a disability equal opportunity to use and enjoy a dwelling unit, including public and common use areas.

§819.135.Discrimination in Design and Construction Requirements.

(a) It is unlawful to design and construct covered multifamily dwellings for first occupancy after March 13, 1991, that do not have at least one building entrance on an accessible route, unless it is impractical to do so because of the terrain or unusual characteristics of the site. For purposes of this section, covered multifamily dwellings shall be deemed to be designed and constructed for first occupancy on or before March 13, 1991, if they are occupied by that date or if the last building permit or renewal for the covered multifamily dwellings is issued by a state, county, or local government on or before January 13, 1990. The burden of establishing impracticality because of terrain or unusual site characteristics is on the person who designed or constructed the housing facility.

(b) It is unlawful to design and construct covered multifamily dwellings for first occupancy after March 13, 1991, with a building entrance on an accessible route that do not provide:

(1) public and common use areas readily accessible to and usable by individuals with disabilities;

(2) doors that are sufficiently wide to allow passage into and within the entire premises by individuals in wheelchairs; or

(3) interior premises with the following features of adaptable design:

(A) accessible routes into and through the covered dwelling unit;

(B) light switches, electrical outlets, thermostats, and other environmental controls in accessible locations;

(C) reinforcements in bathroom walls to allow later installation of grab bars around the toilet, tub, shower, stall, and shower seat, where such facilities are provided; and

(D) usable kitchens and bathrooms to allow an individual in a wheelchair to maneuver.

(c) Compliance with the appropriate requirements of ANSI A117.1 suffices to satisfy the requirements of subsection (b)(3) of this section.

(d) Compliance with a duly enacted law of a state or unit of general local government that includes the requirements of subsections (a) and (b) of this section satisfies the requirements of subsections (a) and (b) of this section.

(e) This section does not invalidate or limit the laws of a state or political subdivision of a state that require dwellings to be designed and constructed in a manner that affords individuals with disabilities greater access than is required by 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 June 15, 2005.

TRD-200502475

Reagan Miller

Acting Deputy Director for Workforce and UI Policy

Texas Workforce Commission

Earliest possible date of adoption: July 31, 2005

For further information, please call: (512) 475-0829

Subchapter I. TEXAS FAIR HOUSING ACT COMPLAINTS AND APPEALS PROCESS

40 TAC §§819.151 - 819.156

§819.151.Filing a Complaint.

(a) A person may telephone, write, visit, e-mail, fax, or otherwise contact CRD to obtain information on filing a complaint with CRD.

(b) At the complainant's request, CRD:

(1) shall counsel with the complainant about the facts and circumstances that constitute the alleged unlawful housing practice; and

(2) shall assist the complainant with preparation of the complaint if the facts and circumstances constitute an alleged unlawful housing practice; or

(3) may advise the complainant if the facts and circumstances presented to CRD do not appear to constitute an unlawful housing practice.

(1) the CRD office on a CRD-provided form;

(2) a HUD office; or

(3) a local municipality certified by HUD.

(d) The CRD director may require complaints to be made in writing, under oath, on a prescribed form. The complaint shall include the following information:

(1) the name and address of the complainant;

(2) the name and address of the respondent;

(3) a description and address of the dwelling that is involved, if appropriate;

(4) the basis for the alleged discriminatory housing practices, which may include any of the following: race, color, disability, religion, sex, national origin, or familial status;

(5) a concise statement of the facts and circumstances that constitute alleged discriminatory housing practices under the Texas Fair Housing Act, including identification of personal harm, reason given to complainant by respondent for the action taken; and

(6) a declaration of unlawful discrimination under federal or state law.

(e) A complaint shall be filed on or before the first anniversary of the date the alleged discriminatory housing practice occurs or terminates, whichever is later.

(f) The date of the filing of the complaint is the date when it is received by CRD or dual-filed with HUD, except when the CRD director determines that a complaint is timely filed for the purposes of the one-year period for filing of complaints upon submission of written information (including information provided by telephone by the claimant and documented by CRD) that is substantially equivalent to the information identified in subsection (d) of this section. When a complaint alleges discriminatory housing practices that are continuing, as manifested in a number of incidents of such conduct, the complaint shall be timely when filed within one year of the last alleged occurrence.

(g) A complaint may be amended to cure technical defects or omissions, or to clarify and amplify allegations made therein. Such amendment or amendments alleging additional acts that constitute unlawful housing practices related to or growing out of the subject matter of the original complaint shall relate back to the date the complaint was first filed. CRD shall provide a copy of the complaint to the respondent. An amended complaint shall be subject to the procedures set forth in applicable law.

(h) The CRD director may file a complaint when the CRD director receives information from a credible source that one or more individuals may have violated the rights of one or more individuals protected by the Texas Fair Housing Act. A complaint filed by the CRD director shall be considered for approval by the Commission on Human Rights at its first regularly scheduled meeting following the filing of the complaint. Upon a majority vote of the Commission on Human Rights, the complaint is approved and any investigation of the complaint shall continue. If the Commission on Human Rights does not approve the complaint, such complaint shall be withdrawn by CRD.

(i) The complainant and respondent shall be notified periodically by CRD of the status of their complaint, unless the notice would jeopardize an undercover investigation by another state, federal, or local government.

(j) Upon the acceptance of a complaint, the CRD director shall notify, by mail, each complainant on whose behalf the complaint was filed. The notice shall:

(1) acknowledge the filing of the complaint and state the date that the complaint was accepted for filing;

(2) include a copy of the complaint;

(3) advise the complainant of the time limits applicable to complaint processing and of the procedural rights and obligations of the complainant under the Texas Fair Housing Act and this chapter;

(4) advise the complainant of his or her right to commence a civil action under the Texas Fair Housing Act, Subchapter H, and federal law, not later than two years after the occurrence or termination of the alleged discriminatory housing practice. The notice shall state that the computation of this two-year period excludes any time during which an administrative hearing is pending under this chapter and Texas Fair Housing Act, Subchapter E, with respect to a complaint or charge based on the alleged discriminatory housing practice; and

(5) advise the complainant that retaliation against any person because he or she made a complaint or testified, assisted, or participated in an investigation, conciliation, or an administrative proceeding under this chapter is a discriminatory housing practice that is prohibited under the Texas Fair Housing Act and this chapter.

§819.152.Legal Representation.

The complainant and respondent may be represented by an attorney or designated agent.

§819.153.Investigation of a Complaint.

(a) Upon the acceptance of a complaint under this chapter, CRD shall initiate an investigation. The CRD director may initiate an investigation to determine whether a complaint should be filed under this chapter and the Texas Fair Housing Act, Subchapter E. Such investigations shall be conducted in accordance with the procedures set forth in this chapter.

(b) The CRD director shall determine the scope and nature of the investigation within the context of the allegations set forth in the complaint.

(1) necessary witnesses for examination under oath or affirmation; and

(2) records, documents, and other information relevant to the investigation of alleged violations of the Texas Fair Housing Act, for inspection and copying.

(d) Within 20 days of the acceptance of a complaint or amended complaint under this chapter, the CRD director shall serve a notice on each respondent by regular mail. A person who is not named as a respondent in a complaint, but who is identified in the course of the investigation under the Texas Fair Housing Act, Subchapter E, and this chapter, as a person who is alleged to be engaged or to have engaged in the discriminatory housing practice upon which the complaint is based, may be joined as an additional or substitute respondent by service of a notice on the person under this section within 10 days of identification.

(e) The notice to a respondent shall include, but not be limited to, the following:

(1) Identification of the alleged discriminatory housing practice upon which the complaint is based, and a copy of the complaint;

(2) Date that the complaint was accepted for filing;

(3) Time limits applicable to complaint processing under this chapter and the procedural rights and obligations of the respondent under the Texas Fair Housing Act, and this chapter, including the opportunity to submit an answer to the complaint within 10 days of the receipt of the notice;

(4) Complainant's right to commence a civil action under the Texas Fair Housing Act, Subchapter H, and federal law, not later than two years after the occurrence or termination of the alleged discriminatory housing practice; an explanation that the computation of the two-year period excludes any time during which an administrative hearing is pending under this chapter or the Texas Fair Housing Act, Subchapter E, with respect to a complaint or charge based on the alleged discriminatory housing practice;

(5) If the person is not named in the complaint, but is being joined as an additional or substitute respondent, an explanation of the basis for the CRD director's belief that the joined person is properly joined as a respondent;

(6) Instruction that retaliation against any person because he or she made a complaint or testified, assisted, or participated in an investigation, conciliation, or an administrative proceeding under this chapter is a discriminatory housing practice that is prohibited under the Texas Fair Housing Act;

(7) Invitation to enter into a conciliation agreement for the purpose of resolving the complaint; and

(8) Initial request for information and documentation concerning the facts and circumstances surrounding the alleged discriminatory housing practice set forth in the complaint.

(f) The respondent may file an answer not later than 10 days after receipt of the notice described in this section. The respondent may assert any defense that might be available to a defendant in a court of law. The answer shall be signed and affirmed by the respondent. The affirmation shall state: "I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge."

(g) An answer may be reasonably and fairly amended at any time with the consent of the CRD director.

(h) CRD may conduct discovery in aid of the investigation by the same methods and to the same extent that parties may conduct discovery in an administrative proceeding under the Texas Fair Housing Act, Subchapter E. The CRD director shall have the power to issue subpoenas described under the Texas Fair Housing Act, Subchapter D, in support of the investigation.

(i) As part of the complaint investigation, CRD may request information relevant to the alleged violations of Texas Fair Housing Act. In obtaining this information, CRD may use, but is not limited to using, any of the following:

(1) oral and video interviews and depositions;

(2) written interrogatories;

(3) production of documents and records;

(4) requests for admissions;

(5) on-site inspection of respondent's facilities;

(6) written statements or affidavits; or

(7) other forms of discovery authorized by the Administrative Procedure Act, Texas Government Code §§2001.081 - 2001.103, or the Texas Rules of Civil Procedure.

(j) CRD may establish time requirements regarding responses to requests for information relevant to an investigation of alleged violations of the Texas Fair Housing Act. The CRD director may extend such time requirements for good cause shown.

(k) As part of a complaint investigation, CRD may accept from the complainant or respondent a statement of position or information regarding the allegations in the complaint. CRD shall accept only a sworn or affirmed written statement of position submitted by the respondent setting forth the facts and circumstances relevant to an investigation of alleged violations of the Texas Fair Housing Act.

(l) CRD shall complete the initial investigation of the alleged discriminatory housing practice within 100 days of the filing of the complaint.

(m) The complaint shall remain open until a no reasonable cause determination is made, a charge is made, or a conciliation agreement is executed and approved under this chapter and the Texas Fair Housing Act, Subchapter E.

(n) At the end of each investigation under this chapter, CRD shall prepare a final investigative report. The investigative report shall contain:

(1) the names and dates of contacts with witnesses. The report shall not disclose the names of witnesses that request anonymity; however, the names of such witnesses may be required to be disclosed in the course of an administrative hearing or a civil action;

(2) a summary and the dates of correspondence and other contacts with the complainant and the respondent;

(3) a summary description of other pertinent records;

(4) a summary of witness statements; and

(5) answers to interrogatories.

(o) A final investigative report may be amended if additional evidence is discovered.

(p) CRD shall provide a summary of the final determination and shall make available the full investigative report to the complainant and the respondent.

§819.154.Pattern and Practice Complaints.

When the CRD director determines that the alleged discriminatory practices contained in a complaint are pervasive or institutional in nature, or that the processing of the complaint may involve complex issues, questions of first impression, or may affect a large number of people, the CRD director may identify it as a pattern and practice complaint. This determination can be based on the face of the complaint or on information gathered in connection with an investigation. Pattern and practice investigations may focus not only on documenting facts involved in the complaint but also on review of other policies and procedures to ensure compliance with the nondiscrimination requirements of the Texas Fair Housing Act.

§819.155.Conciliation.

(a) During the period beginning with the filing of the complaint and ending with the filing of a charge or the dismissal of the complaint by the CRD director, CRD shall attempt to conciliate the complaint.

(b) In conciliating a complaint, CRD shall attempt to achieve a just resolution of the complaint and to obtain assurances that the respondent will satisfactorily remedy any violations of the rights of the complainant, and take such action that will assure the elimination of discriminatory housing practices, or the prevention of their occurrence, in the future.

(c) The terms of a settlement of a complaint shall be reduced to a written conciliation agreement. The conciliation agreement shall protect the interests of the complainant, other people similarly situated, and the public interest.

(d) The agreement is subject to the approval of the CRD director, who shall indicate approval by signing the agreement. The CRD director shall approve an agreement and execute the agreement, only if:

(1) the complainant and the respondent agree to the relief; and

(2) the provisions of the agreement shall adequately protect the public interest.

(e) CRD may issue a charge under the Texas Fair Housing Act and this chapter if the complainant and the respondent have executed an agreement that has not been approved by the CRD director.

(f) CRD may terminate its efforts to conciliate the complaint if:

(1) the complainant or the respondent fails or refuses to confer with CRD;

(2) the complainant or the respondent fails to make a good faith effort to resolve any dispute; or

(3) the CRD director finds, for any reason, that voluntary agreement is not likely to result.

(g) When the complainant has commenced a civil action under federal or state law seeking relief for the alleged discriminatory housing practice, the CRD director shall terminate conciliation.

(h) The CRD director may review compliance with the terms of any conciliation agreement. If the CRD director has reasonable cause to believe that a complainant or a respondent has breached a conciliation agreement, the CRD director may refer the matter to the Office of the Attorney General with a recommendation for the filing of a civil action under the Texas Fair Housing Act, Subchapter G, for the enforcement of the terms of the conciliation agreement.

§819.156.Reasonable Cause Determination and Issuance of a Charge.

(a) If a conciliation agreement under this chapter and the Texas Fair Housing Act, Subchapter E, has not been executed by the complainant and the respondent, and approved by the CRD director, the CRD director on behalf of the Commission on Human Rights, within the time limits set forth in subsection (f) of this section, shall determine whether, based on the totality of the factual circumstances known at the time of the decision, reasonable cause exists to believe that a discriminatory housing practice has occurred. The reasonable cause determination shall be based solely on the facts concerning the alleged discriminatory housing practice, provided by complainant and respondent and otherwise disclosed during the investigation. In making the reasonable cause determination, the CRD director shall consider whether the facts concerning the alleged discriminatory housing practice are sufficient to warrant the initiation of a civil action in state district court.

(b) If the CRD director determines that reasonable cause exists, the CRD director shall immediately issue a charge under the Texas Fair Housing Act, Subchapter E, and this chapter on behalf of the complainant, and shall notify the complainant and the respondent of this determination by certified mail or personal service.

(c) If the CRD director determines that no reasonable cause exists, the CRD director shall issue a short written statement of the facts upon which the CRD director has based the no reasonable cause determination; dismiss the complaint; notify the complainant and the respondent of the dismissal (including the written statement of facts) by certified mail or personal service; and make public disclosure of the dismissal.

(d) If the CRD director determines that the matter involves the legality of local zoning or land use laws or ordinances, the CRD director, in lieu of making a determination regarding reasonable cause, shall refer the investigative materials to the Office of the Attorney General for appropriate action under the Texas Fair Housing Act, Subchapter G, and shall notify the complainant and the respondent of this action by certified mail or personal service.

(e) The CRD director may not issue a charge under this chapter and the Texas Fair Housing Act, Subchapter E regarding an alleged discriminatory housing practice, if a complainant has commenced a civil action under federal or state law seeking relief with respect to the alleged discriminatory housing practice. If a charge may not be issued because of the commencement of a civil action, the CRD director shall notify the complainant and the respondent by certified mail or personal service.

(f) The CRD director shall make a reasonable cause determination within 100 days after filing of the complaint.

(g) If the CRD director is unable to make the determination within the 100-day period, the CRD director shall notify the complainant and the respondent, by certified mail or personal service, of the reasons for the delay.

(h) The CRD director shall notify the complainant and respondent, and any aggrieved person on whose behalf a complaint has been filed, that they may elect to have the claims asserted in the charge decided in a civil action, as provided in Texas Property Code §301.131(b), or an administrative hearing pursuant to §819.191 of this chapter.

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 15, 2005.

TRD-200502476

Reagan Miller

Acting Deputy Director for Workforce and UI Policy

Texas Workforce Commission

Earliest possible date of adoption: July 31, 2005

For further information, please call: (512) 475-0829

Subchapter J. FAIR HOUSING DEFERRAL TO MUNICIPALITIES

40 TAC §819.171, §819.172

§819.171.Deferral.

(a) Pursuant to the Texas Fair Housing Act §301.068, CRD may defer proceedings and refer complaints to a municipality that has been certified by HUD.

(b) A local municipality certified by HUD shall submit the following materials and information to CRD before a deferral or referral shall be made:

(1) A copy of the local ordinance that is determined to be substantially equivalent to federal law;

(2) A letter verifying that the ordinance of the municipality has been approved by HUD as substantially equivalent to federal law;

(3) A copy of rules, policies, and procedures governing the administration and enforcement of the local ordinance determined to be substantially equivalent to federal law and the Texas Fair Housing Act; and

(4) A copy of the organizational chart of the municipality's internal structure for enforcing the local ordinance determined to be substantially equivalent to federal law and the Texas Fair Housing Act.

(c) Upon examination of the materials and information provided by the municipality, the CRD director shall notify the municipality in writing as to the determination of its eligibility.

§819.172.Memoranda of Understanding.

The Agency shall enter into memoranda of understanding with local municipalities qualified under §819.171 of this subchapter to ensure effective and integrated administrative review procedures, share information, and provide technical assistance and training.

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 15, 2005.

TRD-200502477

Reagan Miller

Acting Deputy Director for Workforce and UI Policy

Texas Workforce Commission

Earliest possible date of adoption: July 31, 2005

For further information, please call: (512) 475-0829

Subchapter K. FAIR HOUSING ADMINISTRATIVE HEARINGS AND JUDICIAL REVIEW

40 TAC §§819.191 - 819.201

§819.191.Administrative Hearings.

Administrative hearings shall be conducted by the Agency's Special Hearings Department pursuant to the procedures set forth in Texas Government Code, Chapter 2001, Subchapters C - D, F - H, and Z.

§819.192.Ex Parte Communications.

Except as provided in this chapter, and unless required for the disposition of ex parte matters authorized by law, no member of the Commission on Human Rights and no employee of the Agency assigned to propose a decision or assigned to propose or make findings of fact or conclusions of law in a case covered by this subchapter may communicate, directly or indirectly, in connection with any issue of fact or law with any person or party or any representative of either, except on notice and opportunity for all parties to participate.

§819.193.Proposal for Decision and Hearing Officer's Report.

(a) If the proposed decision is not adverse to any party to the hearing proceeding, the hearing officer may propose to the Commission on Human Rights a decision that need not contain findings of fact or conclusions of law.

(b) The Commission on Human Rights shall not make a decision adverse to a party until a proposal for decision has been served on the parties, and an opportunity has been afforded each party adversely affected to file exceptions and present briefs to the Commission on Human Rights.

(c) The proposal for decision shall be accompanied by a hearing officer's report. This report shall contain a statement of the nature of the case and a discussion of the issues, evidence, and applicable law.

(d) Any penalty assessed by the hearing officer for an administrative violation shall be in accordance with Texas Fair Housing Act §301.112.

§819.194.Countersignature by the CRD Director.

The CRD director shall countersign each hearing officer's report and proposal for decision.

§819.195.Oral Argument before the Commission on Human Rights.

A party may request oral argument before the Commission on Human Rights before final determination. A request for oral argument may be incorporated in the exceptions, in a reply to the exceptions, or in a separate pleading.

§819.196.Pleading Before Order.

The CRD director may permit or request parties to file briefs and proposed findings of fact at any time after the hearing and before final decision by the Commission on Human Rights. A party doing so shall file an original and 10 copies with the CRD director, certifying to the CRD director that each party has been served with a copy.

§819.197.Form and Content of the Order.

(a) After the time for filing exceptions and replies to exceptions has expired, the Commission on Human Rights shall consider the hearing officer's report and the proposal for decision. The Commission on Human Rights may adopt the proposal for decision; modify and adopt it; reject it and issue a Commission on Human Rights decision; or remand the matter to the hearing officer. The Commission on Human Rights shall render its decision or issue its final order within 60 days after the hearing closes. The hearing officer shall prepare the final order for the Commission on Human Rights.

(b) It is the policy of the Commission on Human Rights to change a finding of fact or conclusion of law or to vacate or modify any proposed order from the hearing officer when the proposed order is:

(1) erroneous;

(2) against the weight of the evidence;

(3) based on insufficient review of the evidence;

(4) not sufficient to protect the public interest;

(5) an infringement on the Commission on Human Rights' discretion to determine its policies; or

(6) to correct a technical error.

(c) If the Commission on Human Rights modifies, amends, or changes the hearing officer's proposal for decision, a final order reflecting the changes and the justification for the changes shall be prepared.

§819.198.Final Order.

(a) A final order of the Commission on Human Rights that is adverse to one or more parties shall be in writing and signed by a majority vote of the quorum of the Commission on Human Rights. Such a final order shall include findings of fact and conclusions of law separately stated. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings. Findings of fact shall be based exclusively on the evidence and on matters officially noticed. If a party submits proposed findings of fact, the decision shall include a ruling on each proposed finding. The CRD director shall deliver a copy of the final order to each party or the party's authorized representative by certified mail or personal service.

(b) A final order is effective on the date it is issued by the Commission on Human Rights, unless otherwise stated in the final order. The date of issuance shall be incorporated in the body of each decision or final order.

(c) The Commission on Human Rights' issuance of a final order remains in effect unless a party to the proceeding files a motion for rehearing before the expiration of 21 calendar days.

§819.199.Rehearing.

(a) A motion for rehearing is not required to exhaust all administrative remedies. A motion for rehearing shall be made before the expiration of 21 calendar days after the date of the Commission on Human Rights' final order, as set forth in §819.198 of this subchapter. Any reply to a motion for rehearing shall be filed with the Commission on Human Rights before the expiration of 30 calendar days after the date of the Commission on Human Rights' final order, as set forth in §819.198 of this subchapter. A party filing a motion for rehearing or a reply to a motion for rehearing shall serve a copy on each party within the filing deadline.

(b) The Commission on Human Rights may, by written order, extend the time for filing motions and replies and for taking Commission on Human Rights action. No extension may extend the period for Commission on Human Rights action beyond 90 days after the date of the final order, as set forth in §819.198 of this subchapter. In the event of an extension, a motion for rehearing is denied on the date fixed by the written order or, in the absence of a fixed date, 90 days from the date of the final order, as set forth in §819.198 of this subchapter.

(c) If a party files a motion for rehearing, the Commission on Human Rights' order is final when the Commission on Human Rights:

(1) denies a motion for rehearing on a final order, as set forth in §819.198 of this subchapter, either expressly or by operation of law; or

(2) renders or issues a final order that includes a statement that no motion for rehearing shall be necessary because imminent peril to the public health, safety, or welfare requires immediate effect be given to the final order.

(d) If the Commission on Human Rights does not act on the motion for rehearing within 45 calendar days, the motion is denied by operation of law and the order is final.

§819.200.Judicial Review.

(a) A person who has exhausted all administrative remedies available under the Texas Fair Housing Act and who is aggrieved by a final order of the Commission on Human Rights is entitled to judicial review under the substantial evidence rule as set forth in the Administrative Procedure Act, §§2001.001 et seq.

(b) Proceedings for judicial review are instituted by filing a petition within 30 calendar days after a final order is issued.

§819.201.Prohibited Interference, Coercion, Intimidation, or Retaliation.

(a) It is unlawful to interfere, coerce, intimidate, or retaliate against any person in the exercise or enjoyment of, or on account of that person having exercised or enjoyed, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by the Texas Fair Housing Act.

(b) Prohibited conduct made unlawful under this section includes, but is not limited to:

(1) coercing a person, either orally, in writing, or by other means, to deny or limit the benefits provided that person in connection with the sale or rental of a dwelling or in connection with a residential real estate-related transaction based on race, color, disability, religion, sex, national origin, or familial status;

(2) threatening, intimidating, or interfering with individuals in their enjoyment of a dwelling based on race, color, disability, religion, sex, national origin, or familial status of such individuals, or of visitors or associates of such individuals;

(3) threatening an employee or agent with dismissal or an adverse employment action, or taking such adverse employment action, for any effort to assist a person seeking access to the sale or rental of a dwelling or seeking access to any residential real estate-related transaction, based on the race, color, disability, religion, sex, national origin, or familial status of that person or of any person associated with that individual;

(4) intimidating or threatening any person because that person is engaging in activities designed to make other individuals aware of, or encouraging such other individuals to exercise rights granted or protected by this chapter; and

(5) retaliating against any person because that person has made a complaint, testified, assisted, or participated in any manner in a proceeding under the Texas Fair Housing Act.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 15, 2005.

TRD-200502478

Reagan Miller

Acting Deputy Director for Workforce and UI Policy

Texas Workforce Commission

Earliest possible date of adoption: July 31, 2005

For further information, please call: (512) 475-0829

Subchapter L. FAIR HOUSING FUND

40 TAC §819.221

The new rule is proposed under Texas Labor Code §301.0015 and §302.002(d), which provides the Texas Workforce Commission with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of Agency services and activities.

The new rule affects Title 4, Texas Labor Code, and Texas Labor Code, Chapter 21, concerning employment discrimination; Texas Property Code, Chapter 301, concerning housing discrimination; and the portions of Texas Government Code, Chapter 419, concerning firefighter test review.

§819.221.Fair Housing Fund.

(a) A fair housing fund is a fund in the state treasury in the custody of the Texas Comptroller of Public Accounts.

(b) Civil penalties assessed against a respondent under the Texas Fair Housing Act, Subchapters E and G, shall be deposited to the credit of the fair housing fund.

(c) The Commission on Human Rights may use monies deposited to the credit of the fair housing fund for the administration of the Texas Fair Housing Act.

(d) Gifts and grants received as authorized by the Texas Fair Housing Act, Subchapter D, shall be deposited to the credit of the fair housing fund.

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 15, 2005.

TRD-200502479

Reagan Miller

Acting Deputy Director for Workforce and UI Policy

Texas Workforce Commission

Earliest possible date of adoption: July 31, 2005

For further information, please call: (512) 475-0829