TITLE 37.PUBLIC SAFETY AND CORRECTIONS

Part 1. TEXAS DEPARTMENT OF PUBLIC SAFETY

Chapter 29. PRACTICE AND PROCEDURE

37 TAC §§29.11, 29.24, 29.27, 29.29

The Texas Department of Public Safety adopts amendments to §§29.11, 29.24, 29.27, and 29.29, concerning Practice And Procedure, without changes to the proposed text as published in the December 17, 2004, issue of the Texas Register (29 TexReg 11561) and will not be republished.

The amendment to §29.11 is necessary in order to make the department's rule on the deadline for answers to pleadings in cases transferred to the State Office of Administrative Hearings (SOAH) consistent with discovery deadlines.

The amendment to §29.24 is necessary in order to clarify that Requests for Disclosure, authorized by the Texas Rules of Civil Procedure and SOAH rules are also authorized under Department Discovery Rules.

A second amendment to §29.24 is necessary in order to make the department discovery deadline rule for cases referred to SOAH consistent with SOAH discovery deadline rule.

A third amendment to §29.24 is necessary in order to make the department rules on filing discovery with SOAH consistent with SOAH rules on filing discovery.

The amendment to §29.27 is necessary in order to streamline the process of issuing a final order of the director when a party fails to appear at a contested case hearing scheduled at SOAH.

The amendment to §29.29 is necessary in order to clarify that partial payments received against an order assessing an administrative penalty as well as costs and fees will be applied first to the costs and fees before being applied to the administrative penalty.

No comments were received regarding adoption of the amendments.

The amendments are adopted pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department's work.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on March 3, 2005.

TRD-200500979

Thomas A. Davis, Jr.

Director

Texas Department of Public Safety

Effective date: March 23, 2005

Proposal publication date: December 17, 2004

For further information, please call: (512) 424-2135

Chapter 35. PRIVATE SECURITY

Subchapter E. GENERAL ADMINISTRATION AND EXAMINATIONS

37 TAC §35.76

The Texas Department of Public Safety adopts new §35.76, concerning General Administration and Examinations, with changes to the proposed text as published in the December 10, 2004, issue of the Texas Register (29 TexReg 11460) and will be republished.

Adoption of the new section is necessary in order to provide for private businesses investigating persons or the affairs of a person, not an employee of the private business to be licensed as an investigations company or hire a licensed investigations company to conduct the investigations.

The department received numerous comments from private businesses regarding proposed §35.76. A summary of the comments as well as the department's response follows:

Comment: The comments received indicate that §35.76 expands on the statutory requirements of Occupations Code, §1702.323(e) because the rule does not contain the statutory language regarding the requirement that the investigation occur off the premises of the business. The comments also indicate that §35.76 will have a fiscal impact on the department and on private businesses.

Response: §35.76 was not intended to repeat the statutory requirements of Occupations Code, §1702.323(e), which are clearly stated in statute. Rather, the purpose of §35.76 is to clarify that affected businesses may comply with the statutory requirements of §1702.323(e) either by licensing their investigators or by hiring a licensed investigator to perform investigations for which licensing is required by §1702.323(e). The department agrees that the rule as written could cause confusion by private businesses as to when licensing is required by §1702.323(e), and has therefore amended the rule from that which was previously proposed.

With regard to the comments concerning the fiscal impact of the rule, the department notes that any fiscal impact on the department or private businesses is a direct result of the statutory requirements of §1702.323(e), and not of the proposed rule, which does not impose any additional requirements.

The new section is adopted pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department's work.

§35.76.Investigations by Security Department of Private Businesses.

All businesses that conduct investigations involving persons, or the affairs of persons, who are not employees of the business are required to be licensed as an investigations company or hire a licensed investigations company to conduct the investigation into the affairs of the person not employed by the business if the investigations are performed off the premises of the business, as defined by the Act.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on March 3, 2005.

TRD-200500977

Thomas A. Davis, Jr.

Director

Texas Department of Public Safety

Effective date: March 23, 2005

Proposal publication date: December 10, 2004

For further information, please call: (512) 424-2135

Subchapter U. LOCKSMITH

37 TAC §35.313

The Texas Department of Public Safety adopts new §35.313, concerning Locksmith, without changes to the proposed text as published in the December 10, 2004, issue of the Texas Register (29 TexReg 11460) and will not be republished.

Adoption of the section is necessary in order to provide an exception for companies and individuals that install electronic access control devices intended only for the unrestricted access and convenience to the general public such as automatic pedestrian doors.

No comments were received regarding adoption of the new section.

The new section is adopted pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department's work.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on March 3, 2005.

TRD-200500978

Thomas A. Davis, Jr.

Director

Texas Department of Public Safety

Effective date: March 23, 2005

Proposal publication date: December 10, 2004

For further information, please call: (512) 424-2135