Part 4. TEXAS DEPARTMENT OF LICENSING AND REGULATION

Chapter 59. CONTINUING EDUCATION REQUIREMENTS

16 TAC §59.3

The Texas Department of Licensing and Regulation ("Department") adopts amendments to 16 Texas Administrative Code §59.3, regarding continuing education requirements, as published in the February 4, 2005, issue of the Texas Register (30 TexReg 458) with changes from the rule as proposed.

Texas Occupations Code, §51.405 requires the Texas Commission of Licensing and Regulation ("Commission") to recognize, prepare, or administer continuing education programs for license holders. In response to this legislative mandate, the Commission adopted rules at 16 Texas Administrative Code Chapter 59 to establish general requirements for continuing education providers and courses. The chapter contains rules of general applicability that previously applied only to the electrician program but eventually would apply to all occupations regulated by the Department that are subject to a continuing education requirement.

The amendments to §59.3 add the following programs to the coverage of Chapter 59: (1) auctioneers and associate auctioneers and (2) air conditioning and refrigeration contractors. This amendment is necessary because the Commission is adopting rules with continuing education requirements that are specific to these two programs. Based on staff recommendation, the rule has been revised from the proposed version to eliminate the reference to the licensed court interpreter program. A reference to that program is unnecessary because currently there is no proposed or adopted continuing education rule for the program. Although the Licensed Court Interpreter Advisory Board has met and considered a possible continuing education rule, the Board has not recommended such a rule to the Commission at this time.

The amendments will allow providers of continuing education for these programs to begin registering with the Department and obtaining approval of courses. The provisions of Chapter 59, including fee provisions, would apply to these programs. Continuing education requirements that are specific to each of these programs are contained in the rules for the respective programs. This rule amendment is necessary to implement Texas Occupations Code, §51.405 with respect to the referenced programs.

The Department drafted and distributed the proposal to persons internal and external to the agency. The proposal was published in the Texas Register on February 4, 2005. The comment period closed on March 4, 2005. No public comments were received regarding the proposed amendments.

The amendments are adopted under Texas Occupations Code, Chapter 51, which authorizes the Department to adopt rules as necessary to implement this chapter and any other law establishing a program regulated by the Department.

The statutory provisions affected by the adoption are those set forth in Texas Occupations Code, Chapters 51, 1302, and 1802. No other statutes, articles, or codes are affected by the adoption.

§59.3.Purpose and Applicability.

These rules are promulgated to establish continuing education provider and course requirements for the following occupations regulated by the Department of Licensing and Regulation:

(1) Air conditioning and refrigeration contractors, as provided by Texas Occupations Code, Chapter 1302. Additional continuing education requirements relating to air conditioning and refrigeration contractors may be found in Chapter 75 of this title.

(2) Auctioneers and associate auctioneers, as provided by Texas Occupations Code, Chapter 1802. Additional continuing education requirements relating to auctioneers and associate auctioneers may be found in Chapter 67 of this title.

(3) Electricians, as provided by Texas Occupations Code, Chapter 1305. Additional continuing education requirements relating to electricians may be found in Chapter 73 of this title.

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 May 12, 2005.

TRD-200501930

William H. Kuntz, Jr.

Executive Director

Texas Department of Licensing and Regulation

Effective date: June 1, 2005

Proposal publication date: February 4, 2005

For further information, please call: (512) 463-7348

16 TAC §67.25

The Texas Department of Licensing and Regulation ("Department") adopts new 16 Texas Administrative Code §67.25, concerning continuing education requirements relative to the auctioneer program for licensees, providers, and courses as published in the February 4, 2005, issue of the Texas Register (30 TexReg 459) with changes from the rule as proposed.

Texas Occupations Code, §51.405, requires the Texas Commission of Licensing and Regulation ("Commission"), to recognize, prepare, or administer continuing education programs for license holders, and a license holder must participate in the programs to the extent required by the Commission to keep the person's license. The new rule implements this statutory requirement in the auctioneer program and establishes requirements that are specific to the auctioneer program, for licensees, providers, and courses. General requirements for continuing education providers and courses are contained in 16 Texas Administrative Code Chapter 59.

The new rule requires an auctioneer or associate auctioneer to complete six hours of continuing education in Department-approved courses to renew a license. The rule requires that the continuing education hours must include two hours of instruction in laws and rules that regulate the conduct of auctioneers and associate auctioneers. The hours must be completed during the term of the current license or, in the case of a late renewal, within the one-year period prior to the date of renewal. A licensee may not receive credit for attending the same course more than once for one renewal period. A licensee is required to retain a copy of the certificate of completion for one year after the date of completion of the course. The rule requires that a provider's course must cover one or more specified topics to be approved by the Department. The rule applies to providers and courses upon the effective date of the rule. The rule applies to auctioneer and associate auctioneer licenses that expire on or after January 1, 2006.

The Department drafted and distributed the proposed rule to persons internal and external to the agency. The proposed rule was published in the Texas Register on February 4, 2005. The comment period closed on March 4, 2005. Thirty-seven comments were received regarding the proposed rule.

A number of commenters, including the Texas Auctioneers Association, generally were in support of the rule but objected to the requirement of the proposed rule that a licensee's continuing education hours must include two hours of instruction in Texas law and rules. These commenters noted that some Texas licensees hold auctioneer licenses in other states. The Texas law and rules requirement would make it difficult for these licensees to satisfy continuing education requirements in other states and in Texas. Many commenters suggested removing the word "Texas" from proposed §67.25(b). One commenter suggested eliminating any specific requirements for content of continuing education. Based on these comments, the rule has been revised to eliminate the requirement that the two hours of laws and rules must pertain specifically to Texas.

The revised rule also allows an approved continuing education course to cover laws and rules, other than the Texas auctioneer law and rules, that regulate the conduct of auctioneers and associate auctioneers. These changes should ease the burden of compliance with the rule for those licensees who hold licenses in multiple states. However, the Commission does not believe that eliminating the content requirements for continuing education is appropriate because such requirements are necessary to ensure that continuing education is relevant and useful to licensees.

Several comments were opposed to the rule. These commenters objected to the cost imposed on a licensee in obtaining continuing education and expressed that continuing education was unnecessary for auctioneers. However, the Auctioneer Education Advisory Board, which exists to advise the Commission on such matters, concluded that a continuing education requirement was needed and recommended the proposed rule. The Commission believes that continuing education will support and enhance the skills and competence of licensees and thereby afford additional protection to the public. In addition, the Commission has a statutory directive to administer continuing education programs for license holders and to require licensees to participate in those programs. For these reasons, the Commission is proceeding with adoption of the rule. In response to these comments though, the date on which licensees must comply with continuing education requirements has been extended. The revised rule would apply to licensees whose licenses expire on or after January 1, 2006. This change should ease the burden of compliance with the new requirements by allowing licensees additional time to obtain continuing education hours.

One commenter suggested adding a "grandfathering" provision that would exempt a licensee from continuing education requirements if the licensee had held a license for a certain number of years. Because continuing education would be beneficial to all licensees, no change has been made to the rule based on this comment.

The new rule is adopted under Texas Occupations Code, Chapter 1802 and Texas Occupations Code, Chapter 51, which authorizes the Department to adopt rules as necessary to implement this chapter and any other law establishing a program regulated by the Department. In particular, the rule implements Texas Occupations Code, §51.405.

The statutory provisions affected by the adoption are those set forth in Texas Occupations Code, Chapters 51 and 1802. No other statutes, articles, or codes are affected by the adoption.

§67.25.Continuing Education.

(a) Terms used in this section have the meanings assigned by Chapter 59 of this title, unless the context indicates otherwise.

(b) To renew a license as an auctioneer or associate auctioneer, a licensee must complete six hours of continuing education in courses approved by the department, including two hours of instruction in laws and rules that regulate the conduct of auctioneers and associate auctioneers.

(c) The continuing education hours must have been completed within the term of the current license, in the case of a timely renewal. For a late renewal, the continuing education hours must have been completed within the one year period immediately prior to the date of renewal.

(d) A licensee may not receive continuing education credit for attending the same course more than once for one renewal period.

(e) A licensee shall retain a copy of the certificate of completion for a course for one year after the date of completion. In conducting any inspection or investigation of the licensee, the department may examine the licensee's records to determine compliance with this subsection.

(f) To be approved under Chapter 59 of this title, a provider's course must be dedicated to instruction in one or more of the following topics:

(1) Texas Occupations Code, Chapter 1802, Auctioneers;

(2) Title 16, Texas Administrative Code, Chapter 67, Auctioneers Administrative Rules;

(3) other laws and rules that regulate the conduct of auctioneers and associate auctioneers;

(4) auction-related laws, such as the Uniform Commercial Code--Sales, Title 1, Chapter 2, Texas Business and Commerce Code §2.328 and the Deceptive Trade Practices--Consumer Protection Act, Chapter 17, Subchapter E, Texas Business and Commerce Code; or

(5) business practices, such as insurance, auction ethics, contracts, maintenance of trust accounts, and marketing.

(g) This section shall apply to providers and courses for auctioneers and associate auctioneers upon the effective date of this section.

(h) This section shall apply to auctioneer and associate auctioneer licenses issued under Texas Occupations Code, Chapter 1802, Subchapter B that expire on or after January 1, 2006.

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 May 12, 2005.

TRD-200501931

William H. Kuntz, Jr.

Executive Director

Texas Department of Licensing and Regulation

Effective date: June 1, 2005

Proposal publication date: February 4, 2005

For further information, please call: (512) 463-7348

16 TAC §75.25

The Texas Department of Licensing and Regulation ("Department") adopts new rule 16 Texas Administrative Code §75.25, concerning continuing education requirements relative to the air conditioning and refrigeration contractors program for licensees, providers, and courses as published in the February 25, 2005, issue of the Texas Register (30 TexReg 1005), without changes, and will not be republished.

Texas Occupations Code, §51.405, requires the Texas Commission of Licensing and Regulation ("Commission"), to recognize, prepare, or administer continuing education programs for license holders, and a license holder must participate in the programs to the extent required by the Commission to keep the person's license. The new rule implements this statutory requirement in the air conditioning and refrigeration contractor program. The new rule establishes requirements that are specific to the air conditioning and refrigeration contractor program, for licensees, providers, and courses. General requirements for continuing education providers and courses are contained in 16 Texas Administrative Code Chapter 59.

The new rule requires a licensee to complete eight hours of continuing education in Department-approved courses to renew a license. The continuing education hours must include two hours of instruction in Texas state law and rules which regulate the conduct of licensees and must be completed during the term of the current license or, in the case of a late renewal, within the one-year period prior to the date of renewal. A licensee may not receive credit for attending the same course more than once. A licensee is required to retain a copy of the certificate of completion for one year after the date of completion of the course. The rule requires that, to be approved by the Department, a provider's course must cover one or more specified topics. The rule applies to providers and courses upon the effective date of the rule. The rule applies to air conditioning and refrigeration contractor licenses that expire on or after January 1, 2006.

The Department drafted and distributed the proposed rule to persons internal and external to the agency. The proposed rule was published in the Texas Register on February 25, 2005. The comment period closed on March 28, 2005. Five comments were received regarding the proposed rule.

One commenter suggested adding a requirement that the continuing education hours include at least three hours in code training. The proposed rule requires two hours of instruction in Texas law and rules that regulate the conduct of licensees. The law and rules make reference to the codes that apply to this occupation, so a course that covers the law and rules topic may also include some coverage of code requirements. In addition, the list of acceptable topics that may be covered in a continuing education course includes the applicable codes. The Air Conditioning and Refrigeration Contractors Advisory Board, which is a body that exists to advise the Commission on issues related to this occupation, has recommended this rule. The Board has determined that the continuing education requirements of the rule are sufficient, and the Commission agrees with that determination. No change has been made based on this comment.

Two of the comments were opposed to the rule. These commenters expressed that continuing education was unnecessary and objected to the increased costs to government of administering the rule. However, the Air Conditioning and Refrigeration Contractors Advisory Board has concluded that a continuing education requirement is needed and has recommended this rule. The Commission believes that continuing education, as required by the rule, will support and enhance the skills and competence of licensees and thereby afford additional protection to the public. In addition, the Commission has a statutory directive to administer continuing education programs for license holders and to require licensees to participate in those programs. This program, in itself, is not expected to create significant additional costs to the Department. The Commission believes that the staff will be able to administer the program in an efficient, cost-effective manner. For these reasons, the Commission does not agree with these comments and makes no change to the rule based on these comments.

One commenter supported the rule but expressed the view that the rule would not curtail unlicensed activity. The Commission agrees with the commenter's concern about unlicensed activity. The Department's enforcement staff is continually working to address unlicensed activity, through such activities as sting operations and complaint resolution. This rule, however, is not intended primarily to address unlicensed activity but rather is designed to support and enhance the skills and competence of licensees. No change has been made based on this comment.

One commenter requested clarification of the number of continuing education hours required by the rule. This commenter did not express a position for or against the rule and did not suggest any changes to the rule, so no change has been made based on this comment.

The new rule is adopted under Texas Occupations Code, Chapter 1302 and Texas Occupations Code, Chapter 51, which authorizes the Department to adopt rules as necessary to implement this chapter and any other law establishing a program regulated by the Department. In particular, the rule implements Texas Occupations Code, §51.405.

The statutory provisions affected by the adoption are those set forth in Texas Occupations Code, Chapters 51 and 1302. No other statutes, articles, or codes are affected by the adoption.

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 May 12, 2005.

TRD-200501932

William H. Kuntz, Jr.

Executive Director

Texas Department of Licensing and Regulation

Effective date: June 1, 2005

Proposal publication date: February 25, 2005

For further information, please call: (512) 463-7348

Chapter 401. ADMINISTRATION OF STATE LOTTERY ACT

Subchapter D. LOTTERY GAME RULES

16 TAC §401.315

The Texas Lottery Commission adopts amendments to 16 TAC §401.315, relating to the "Mega Millions" on-line game, without changes to the proposed text as published in the March 25, 2005, issue of the Texas Register (30 TexReg 1761).

The amendments change the game matrix from 5 of 52 and 1 of 52 to 5 of 56 and 1 of 46. The amendments change the minimum grand/jackpot amount from $10 million to $12 million. The amendments also change the second prize level from $175,000 to $250,000 and the third prize level from $5,000 to $10,000. Additionally, the odds of winning for each prize category as well as the overall odds of winning change. For the grand/jackpot prize category, the odds of winning and the percent of prize fund change from 1:135,145,920 and 63.38% to 1:175,711,536 and 63.6%, respectively. For the second prize category, the odds of winning and the percent of prize fund change from 1:2,649,920 and 13.21% to 1:3,904,701 and 12.8%, respectively. For the third prize category, the odds of winning and the percent of prize fund change from 1:575,089 and 1.74% to 1:689,065 and 2.90%, respectively. For the fourth prize category, the odds of winning and the percent of prize fund change from 1:11,276 and 2.66% to 1:15,313 and 1.96%, respectively. For the fifth prize category, the odds of winning and the percent of prize fund change from 1:12,502 and 2.40% to 1:13,781 and 2.18%, respectively. For the sixth prize category, the odds of winning and the percent of prize fund change from 1:833 and 2.40% to 1:844 and 2.38%, respectively. For the seventh prize category, the odds of winning and the percent of prize fund change from 1:245 and 5.71% to 1:306 and 4.58%, respectively. For the eighth prize category, the odds of winning and percent of prize fund change from 1:152 and 3.96% to 1:141 and 4.26%, respectively. For the ninth prize category, the odds of winning and the percent of prize fund change from 1:88 and 4.54% to 1:75 and 5.34%, respectively. The amendments also change provisions throughout the rule that refer to the number of numbers in either field of numbers. Also, language is added that provides that if the sales support a jackpot that is at least $12 million lower than the advertised jackpot, the resulting jackpot to be paid will be the highest fully funded million plus $12 million or the advertised jackpot, whichever is lower. In no event, however, shall the jackpot paid be less than the advertised jackpot of the immediately prior drawing.

The amendments are adopted, in large part, to implement the addition of another state to the Mega Millions game, California. The addition of the population of California to the existing population base of the game may lead to lower jackpot levels unless the game matrix is changed and the odds of winning the grand/jackpot prize are changed. Mega Millions is attractive to players because of the high jackpot levels the game can generate. Texas' actual sales history illustrates that Mega Millions is viewed as a triple-digit jackpot game in the state. In Texas, Mega Millions average per capita sales increase as the Mega Millions jackpot increases. The proposed changes will cause the game to continue to offer high jackpot prize levels to players. Retailers will benefit because they will be receiving additional monies from the additional Mega Millions sales. The State of Texas will receive additional revenue from the additional Mega Million sales. Other changes to the game's prize levels are intended to offer prizes at the lower levels that are attractive to the player base. The change to the language that provides that if the sales support a jackpot that is at least $12 million lower than the advertised jackpot, the resulting jackpot to be paid will be the highest fully funded million plus $12 million or the advertised jackpot, whichever is lower and that in no event, however, shall the jackpot paid be less than the advertised jackpot of the immediately prior drawing is intended to address unforeseen situations where anticipated sales do not meet actual sales levels. The language limits the jackpot prize liability in these unforeseen situations.

The Commission received comments on the proposed amendments to §401.315. Comment was received at a public comment hearing conducted on April 7, 2005 and also in writing. One commenter appeared at the public comment hearing. This commenter indicated that she was offering comment in both a representative capacity and in an individual capacity. This commenter is opposed to the proposed changes to the Mega Millions game. The commenter indicated that the odds increase is a 30% increase in the odds and that there will not be a corresponding 30% increase in sales. The commenter indicated opposition to the guaranteed prizes and believes it is not fair to the people and it is a risk to the State. The commenter believes that the Commission keeps the excess money from the allocation of the amount needed to fund low tier prizes and that the players should get the money. The commenter also indicated that the jackpot is a guaranteed prize and since Texas joined there have only been two wins where there were insufficient funds from sales to fund the prize and money from the reserve was used to pay the jackpot prizes. The commenter also indicated that the jackpot prize money from the two jackpots in Texas is leaving the State. The commenter indicated that the game does not allow players to choose between cash value option or annual payment after they win. The commenter expressed criticism regarding the manner in which the Commission notified persons of the subject rulemaking. The commenter indicated that she believes the Commission has already agreed to pay for balls and machines in connection with the subject rulemaking.

The majority of commenters commented on two points. The first point is an opposition to the proposed amendment to the Mega Millions rule that will increase the odds of winning the jackpot. Commenters believe the odds are already too high and that it makes it harder to win. Commenters indicated that the public would rather have more people win as opposed to larger jackpots and want the game to be easier to win, even at the lower levels. Commenters also indicated that every time the odds are raised, less people play and it stops being fun to play. Further comment is that the short-term gain of additional players for $300 million plus jackpots will soon vanish and reality will force most casual players to other venues. As a result, the change could substantially erode the current player base and force a slowing of jackpot growth. The majority of the commenters' second point is to leave the Mega Millions game alone. The commenters indicated that they thought the game could not be changed, they like the current format, adding more numbers is bad for the game, changing the game ruins the game, and changing the game to make it harder to win loses players. Some commenters indicated that the Commission and/or the State are just too greedy. Some commenters indicated the game is crooked and/or that the Commission is crooked. One commenter does not like the multiplier feature and wants to eliminate it. This commenter also wants the Megaplier animation eliminated and replaced with a mechanical drawing system to eliminate tampering. One commenter wants to be able to decide whether to have the prize paid in a lump sum or in installments after they win. One commenter indicated that Texas should raise money through casino gambling. Several commenters were in favor of the amendments. One commenter indicated that gambling has odds and it is up to the player to make that choice to play.

Agency response to the comment: The agency recognizes that the changes to the rule changes the odds of winning the jackpot amount. For the grand/jackpot prize category, the odds of winning and the percent of prize fund change from 1:135,145,920 and 63.38% to 1:175,711,536 and 63.6%, respectively. However, the Mega Millions game was designed to provide high jackpot amounts. The addition of the newest state to the game, California, means more players. With more players, if the matrix is not changed to recognize the increase in the population playing the game, it is unlikely that the game will reach the high jackpots it previously has experienced. Players play at the higher jackpot levels. Therefore, the agency disagrees with the comments to leave the game alone, not change the odds of winning at the jackpot level, changing the game ruins the game, and that changing the game could erode the player base. Likewise, the Commission disagrees with the comment that the Commission and/or the State are just too greedy. The purpose of State lottery games is to generate revenue for public programs. In Texas, the proceeds are transferred to the Foundation School Fund. The Commission's responsibility is to maximize revenues through lottery games for such purpose. It is not a question of "greediness," it is an issue of generating funds for such purpose. The agency does not agree with the comment that guaranteed prizes are unfair to players or a risk to the State. Guaranteed prizes are a part of the Mega Millions game. Players are aware of this prize structure when they play. Players are not required to purchase a ticket in the Mega Millions game. Participation in this lottery game is the choice of the player. The overall payout in the game is approximately 50%. Therefore, over time, the revenue returned to the State should be within the anticipated range. The Commission also disagrees with the comment regarding the Mega Millions jackpot prize claimed in Texas being funded, in part, from a prize reserve fund. The Mega Millions game does not include such a fund. The agency also disagrees with the comment regarding prize money leaving the State. The comment referenced two jackpot prizes won, one in Mega Millions and one in Lotto Texas as examples of the prizewinners spending prize money outside Texas. The Commission imposes no restrictions on how a person spends his prize money and, further, is uncertain as to its authority, should it even desire to do so, to impose a restriction that prize money must be spent in Texas. The Commission also disagrees with the comment regarding the manner in which the Commission notified persons of this rulemaking. The Commission has complied with the rulemaking notification requirements of the Administrative Procedures Act, Chapter 2001, Government Code. Additionally, the Commission noticed a public comment hearing and posted information about the rulemaking on its website. The agency also disagrees with the comment that the Commission had already agreed to purchase equipment to implement the game change contemplated by this rulemaking. The Executive Director has executed the contract that includes the newest state, California; but, the Commission, should it decide to do so, could elect to withdraw from the game. The rulemaking does implement the game change but comment received in connection with the rulemaking has been considered and had the Commission received comment that it thought required either adoption with changes to the proposed text or withdrawal of the proposed amendments, it could have taken such action. The Commission disagrees with the comment that the Commission and/or the game, including the multiplier automated drawing, are crooked. Both are subject to independent audit and review. The Commission also disagrees with the comment to allow a player to elect whether to be paid in a lump sum or in installments at the time the player claims the prize since the Commission believes there has been no dispositive ruling from the Internal Revenue Service regarding the time lines in the federal statute relating to this matter. Lastly, the Commission disagrees with the comment to eliminate the multiplier feature. To date, the multiplier feature has generated $33,962,682 in additional revenue for the Foundation School Fund since the inception of the game through April 30, 2005.

The Commission did not receive comments from any group or association in favor of the proposed rulemaking. The Commission received comments from The Lotto Report in opposition to the proposed rulemaking.

The amendments are adopted under Government Code, §466.015 which authorizes the Commission to adopt all rules necessary to administer the State Lottery Act and to adopt rules governing the establishment and operation of the lottery, under Government Code, §466.451 which authorizes the Commission to adopt rules relating to multijurisdiction lottery game or games, and under Government Code, §467.102 which authorizes the Commission to adopt rules for the enforcement and administration of the laws under the Commission's jurisdiction.

The amendments implement Government Code, Chapter 466 and specifically, Government Code, §466.451.

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 May 11, 2005.

TRD-200501906

Kimberly L. Kiplin

General Counsel

Texas Lottery Commission

Effective date: June 22, 2005

Proposal publication date: March 25, 2005

For further information, please call: (512) 344-5113