Part 1. TEXAS HIGHER EDUCATION COORDINATING BOARD

Chapter 17. CAMPUS PLANNING

Subchapter A. GENERAL PROVISIONS

19 TAC §17.3

The Texas Higher Education Coordinating Board proposes amendments to §17.3 concerning Definitions. Specifically, proposed §17.3 provides new definitions to reflect new guidelines regarding the Private Real Property Rights Preservation Act. The definitions are renumbered.

Ms. Susan Brown, Assistant Commissioner for Planning and Accountability, has determined that for each year of the first five years the section is in effect, there will not be any fiscal implications to state or local government as a result of enforcing or administering the rules.

Ms. Brown has also determined that for each year of the first five years the section is in effect, the public benefit anticipated as a result of administering the section will be to ensure compliance with the guidelines. There is no effect on small businesses. There is no anticipated economic costs to persons who are required to comply with the section as proposed. There is no impact on local employment.

Comments on the proposal may be submitted to Lillian Wanjagi, Program Director, Office of Resource Planning, P.O. Box 12788, Austin, TX 78711; lillian.wanjagi@thecb.state.tx.us. Comments will be accepted for 30 days following publication of the proposal in the Texas Register .

The amendments are proposed under the Texas Education Code, §61.027, which provides the Coordinating Board with the authority to adopt rules, and Texas Education Code, §61.058 and §61.0572.

The amendments affect the Texas Education Code, §61.058 and §61.0572.

§17.3.Definitions.

The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise:

(1) - (58) (No change.)

(59) Taking--Action that affects private real property, in whole or in part, temporarily or permanently, in a manner that restricts or limits the owner's right to the property that would otherwise exist in the absence of the institution's action and that requires the institution to compensate the private real property owner as provided by the Fifth and Fourteenth Amendments to the United States Constitution or §17 or 19, Article 1, Texas Constitution, relating to taking, damaging, or destroying property for public use.

(60) Takings Impact Assessment (TIA)--Institutional report that describes the specific purpose of the taking of private real property and actions taken on behalf of the institution to determine whether reasonable alternative actions could be considered prior to engaging in the proposed action.

(61) [ (59) ] Technical Research Building--Space used for research, testing, and training in a mechanical or scientific field. Special equipment is required for staff and/or student experimentation or observation. Included are specialized laboratories for new technologies that have stringent environmental controls on air quality, temperature, vibration, and humidity. Facilities generally include space for specialized technologies, semiconductors, biotechnology, advanced materials, quantum computing and advanced manufacturing quantum computing technology, nanoscale measurement tools, integrated microchip-level technologies for measuring individual biological molecules, and experiments in nanoscale disciplines.

(62) [ (60) ] Tracking Report--Institutional reports indicating the status of approved projects.

(63) [ (61) ] Tuition Revenue Bonds Project--A project for which an institution has legislative authority to finance a construction or land acquisition project as provided for in Texas Education Code, §§55.01 - 55.25.

(64) [ (62) ] Unimproved Real Property--Real property on which there are no buildings or facilities.

(65) [ (63) ] University System--The association of one or more public senior colleges or universities, medical or dental units, or other agencies of higher education under the policy direction of a single governing board.

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 February 17, 2006.

TRD-200600865

Jan Greenberg

General Counsel

Texas Higher Education Coordinating Board

Proposed date of adoption: April 20, 2006

For further information, please call: (512) 427-6114

19 TAC §17.21

The Texas Higher Education Coordinating Board proposes amendments to §17.21, concerning Application Procedures.

Specifically, proposed §17.21 requires that the Board of Regents Certification for a project application be dated no more than two years prior to the date the project application is submitted to the Coordinating Board for approval.

Ms. Susan Brown, Assistant Commissioner for Planning and Accountability, has determined that for each year of the first five years the section is in effect, there will not be any fiscal implications to state or local government as a result of enforcing or administering the rule.

Ms. Brown has also determined that for each year of the first five years the section is in effect, the public benefit anticipated as a result of administering the section will be to verify that the Board of Regents Certification is current. There is no effect on small businesses. There is no anticipated economic costs to persons who are required to comply with the section as proposed. There is no impact on local employment.

Comments on the proposal may be submitted to Lillian Wanjagi, Program Director, Office of Resource Planning, P.O. Box 12788, Austin, TX 78711; lillian.wanjagi@thecb.state.tx.us. Comments will be accepted for 30 days following publication of the proposal in the Texas Register .

The amendments are proposed under the Texas Education Code, §61.027, which provides the Coordinating Board with the authority to adopt rules, and Texas Education Code, §61.058 and §61.0572.

The amendments affect the Texas Education Code, §61.058 and §61.0572.

§17.21.Application Procedures.

(a) (No change.)

(b) Institutions shall submit the following materials for the consideration of projects by the Commissioner, Committee on Strategic Planning, or Board:

(1) (No change.)

(2) a signed Board of Regents Certification form certifying that the institution's Board of Regents has approved the project dated no more than two years prior to the date the project application is submitted to the Coordinating Board for approval and that the project meets the criteria specified in §17.20 of this title (relating to Criteria for Approval of Projects);

(3) - (4) (No change.)

(c) (No change.)

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

Filed with the Office of the Secretary of State on February 17, 2006.

TRD-200600868

Jan Greenberg

General Counsel

Texas Higher Education Coordinating Board

Proposed date of adoption: April 20, 2006

For further information, please call: (512) 427-6114

19 TAC §17.51, §17.52

The Texas Higher Education Coordinating Board proposes amendments to §17.51 concerning Additional Requirements and §17.52 concerning Eminent Domain. Specifically, proposed §17.51 provides new requirements to reflect new guidelines issued by the Office of the Attorney General regarding the Private Real Property Rights Preservation Act. Section 17.52 provides clarification of the rules regarding the credentials of an appraiser and any claim of confidentiality of an appraisal. The proposed amendment includes additional requirements for the Texas State Technical College System regarding project application for the acquisition of real property.

Ms. Susan Brown, Assistant Commissioner for Planning and Accountability, has determined that for each year of the first five years the sections are in effect, there will not be any fiscal implications to state or local government as a result of enforcing or administering the rules.

Ms. Brown has also determined that for each year of the first five years the sections are in effect, the public benefit anticipated as a result of administering the section will be to ensure institutions are aware of the new guidelines and to provide clarification on the use of appraisals for real property acquisition. There is no effect on small businesses. There is no anticipated economic costs to persons who are required to comply with the section as proposed. There is no impact on local employment.

Comments on the proposal may be submitted to Lillian Wanjagi, Program Director, Office of Resource Planning, P.O. Box 12788, Austin, TX 78711; lillian.wanjagi@thecb.state.tx.us. Comments will be accepted for 30 days following publication of the proposal in the Texas Register .

The amendments are proposed under the Texas Education Code, §61.027, which provides the Coordinating Board with the authority to adopt rules, and Texas Education Code, §61.058 and §61.0572.

The amendments affect the Texas Education Code, §61.058 and §61.0572.

§17.51.Additional Requirements.

(a) Private Real Property Rights Preservation Act.

(1) The institution shall certify compliance with Chapter 2007 of the Government Code, and the Private Real Property Rights Preservation Act Guidelines published in 30 TexReg 7911-7918, relating to the Private Real Property Rights Preservation Act, and

(2) A copy of the Takings Impact Assessment (TIA) shall be provided to the Board with the application for all real property purchases.

(3) The TIA shall include:

(A) The specific purpose of the proposed action;

(B) A determination as to whether engaging in the proposed purchase constitutes a taking;

(C) Whether and how the proposed action substantially advances its stated purpose and the burdens;

(D) The burdens imposed on private real property and the benefits to society resulting from the proposed use of private real property;

(E) A description of reasonable alternative actions that could accomplish the specified purpose

(F) A comparison, evaluation, and explanation of how an alternative action would further the specific purpose; and

(G) Whether an alternative action would constitute a taking;

(4) A takings impact assessment prepared under this section is public information.

(b) [ (a) ] Appraisals.

(1) If the cost of the real property is $300,000 or more, an institution shall provide two current appraisal reports providing a current value of the property. The most recent appraisal of the local property tax appraisal district may be used for one of these reports.

(2) Appraisals shall be considered current if the appraisal was completed no more than two years prior to the date the project application is submitted to the Coordinating Board for approval.

(3) [ (2) ] If the cost of the real property is less than $300,000, an institution shall submit a brief description of the information that it has relied upon to determine the current market value or provide an appraisal report estimating the current market value of the property.

(c) [ (b) ] Appraiser Credentials. Any appraisal report provided to the Board under this section shall certify that the appraiser(s) meets one of the following requirements:

(1) Is designated an Accredited Senior Appraiser by the American Society of Appraisers (A.S.A.) with the professional designation in real estate; or [ Is a senior member of the Appraisal Institute (M.A.I, S.R.P.A. and S.R.A.); ]

(2) Is a member of the Appraisal Institute designated M.A.I by the Appraisal Institute and is experienced in the valuation and evaluation of commercial, industrial, residential, and other types of properties, and who advise clients on real estate investment decisions; [ Is a senior member of the American Society of Appraisers with the professional designation in real estate; or ]

(3) Is a member of the Appraisal Institute designated S.R.P.A and is experienced in the valuation of commercial, industrial, residential, and other types of property; [ Is a senior member or appraiser-counselor of the National Association of Independent Fee Appraisers (designated I.F.A.S. or I.F.A.C.). ]

(4) Is a member of the Appraisal Institute designated S.R.A. and is a real estate solutions provider who is experienced in the analysis and valuation of residential real property;

(5) Is a senior member designated I.F.A.S by the National Association of Independent Fee Appraisers; or

(6) Is an appraiser-counselor designated I.F.A.C. by the National Association of Independent Fees Appraisers.

(d) [ (c) ]The requirement for appraisals in no way obligates the institution to release the figures to property owners during the acquisition process, nor does the requirement of appraisals deny the institution the right to settle a purchase at a price below the appraisals.

(1) An institution may place the word "Confidential" on each appraisal submitted to the Board under this section.

(2) The Board shall refer any public request for an appraisal that is marked "Confidential" or related project application materials to the Office of the Attorney General and provide notice to the institution that a request for the appraisal has been made under the Public Information Act found in Texas Government Code, Chapter 552.

(e) Special requirements for the Texas State Technical College System. Proposed real property acquisitions by the Texas State Technical College System in Cameron, Potter, Harrison, and Nolan Counties must be approved by the Office of the Governor after Board approval and prior to acquisition in compliance with Texas Education Code 135.02(c). The Board shall provide the Office of the Governor a copy of the approval letter and analysis. The System shall provide any additional documentation to the Office of the Governor. The System shall provide a copy of the Governor's approval to the Board for inclusion in the project application file within 30 days of the approval.

§17.52.Eminent Domain.

(a) Board approval for acquisitions in which eminent domain may be necessary shall be obtained prior to the commencement of eminent domain proceedings.

(b) The institution shall certify compliance with Chapter 2007 of the Government Code, and the Private Real Property Rights Preservation Act Guidelines published in 30 TexReg7911-7918, relating to the Private Real Property Rights Preservation Act,

(c) [ (b) ] The institution shall provide to the Board evidence of good faith efforts made to reach an agreement with the property's owner.

(d) [ (c) ] Upon resolution, the institution shall promptly report to the Board the costs associated with the eminent domain proceedings. Re-approval of the project by the Board shall not be necessary unless the court establishes a purchase price 10 percent higher than that approved by the Board.

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 February 17, 2006.

TRD-200600866

Jan Greenberg

General Counsel

Texas Higher Education Coordinating Board

Proposed date of adoption: April 20, 2006

For further information, please call: (512) 427-6114

19 TAC §17.101

The Texas Higher Education Coordinating Board proposes amendments to §17.101, concerning Institutional Reports.

Specifically, proposed §17.101 increases the limits regarding submission of projects for an institution's Facilities Development Plan (MP1) to match new standards set by the Bond Review Board.

Ms. Susan Brown, Assistant Commissioner for Planning and Accountability, has determined that for each year of the first five years the section is in effect, there will not be any fiscal implications to state or local government as a result of enforcing or administering the rule.

Ms. Brown has also determined that for each year of the first five years the section is in effect, the public benefit anticipated as a result of administering the section will be to reduce the reporting burden on the institutions. There is no effect on small businesses. There is no anticipated economic costs to persons who are required to comply with the section as proposed. There is no impact on local employment.

Comments on the proposal may be submitted to Lillian Wanjagi, Program Director, Office of Resource Planning, P.O. Box 12788, Austin, TX 78711; lillian.wanjagi@thecb.state.tx.us. Comments will be accepted for 30 days following publication of the proposal in the Texas Register .

The amendments are proposed under the Texas Education Code, §61.027, which provides the Coordinating Board with the authority to adopt rules, and Texas Education Code, §61.0572.

The amendments affect the Texas Education Code, §61.0572.

§17.101.Institutional Reports.

Institutions of higher education shall submit current data to the Board for the following reports:

(1) (No change.)

(2) Facilities Development Reports. The Board shall consider projects that are included in the facilities development plans (MP1 and MP2). A project that is not included in the plan may be considered if the Board determines that the institution, even with careful planning, could not reasonably have foreseen the project need.

(A) Facilities Development Plan (MP1). On or before July 1 of every year, beginning in 2004, an institution shall submit an update to its Facilities Development Plan (MP1) on file with the Board, as required by Texas Education Code, §61.0582. In every even-numbered year, the Board shall provide Facilities Development Plan data to the Bond Review Board for inclusion in the Capital Expenditure Report. This report may include capital renewal and deferred maintenance projects. The data may be used by the Board to respond to legislative requests, predictions of future space need, and similar analyses . The report shall include projects that are planned or may be submitted to the Board within the next five years, regardless of funding source :

(i) [ any proposed ] new construction projects $1,000,000 or more [ greater than $250,000 ],

(ii) repair and rehabilitation projects [ greater than ] $1,000,000 or more; [ , ]

(iii) information resource projects that cumulatively would total [ greater than ] $1,000,000 or more in one year; [ , and ]

(iv) property purchases that cumulatively would total $1,000,000 or more in one year. (The actual property address or location for individual property acquisitions may be, but are not required to be, identified in a single proposed project entitled "property acquisitions" with a total cost of all purchases or acquisitions projected over the reporting period.) [ for any amount that may be submitted within the next five years to the Board, regardless of funding source; ]

(v) [ (ii) ] the funding source for any planned project identified in paragraph (2)(A)(i), (ii), (iii), and (iv) of this section; and

(vi) [ (iii) ] a description of the proposals the institution plans to submit to the Board during the reporting period [ to finance with the Higher Education Assistance Fund or Permanent University Fund ].

(B) - (C) (No change.)

(3) - (5) (No change.)

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

Filed with the Office of the Secretary of State on February 17, 2006.

TRD-200600867

Jan Greenberg

General Counsel

Texas Higher Education Coordinating Board

Proposed date of adoption: April 20, 2006

For further information, please call: (512) 427-6114