PART 3. TEXAS ALCOHOLIC BEVERAGE COMMISSION
CHAPTER 34. SCHEDULE OF SANCTIONS AND PENALTIES
The Texas Alcoholic Beverage Commission (commission) proposes to amend §34.1, relating to the general provisions of the commission's schedule of sanctions and penalties rule.
Specifically the proposed amendment to §34.1(j) deletes "section" from the sentence and replaces it with "chapter". The provisions of Chapter 34, by its terms apply only to settlements entered into by "agents, compliance officers or other specifically designated commission personnel." The use of the term "section" in subsection (j), has been erroneously interpreted to limit the exclusion of contested cases or complaints or violations referred to the legal division to §34.1 of the chapter. The proposed change clarifies that the exclusion of cases referred to the legal division applies to the entire chapter, not just the general provisions section.
Charlie Kerr, Chief Financial Officer, has determined that for each fiscal year of the first five years the amended section is in effect, there will be no fiscal implications to the state as a result of enforcing or administering the section as proposed.
Mr. Kerr has determined that for each fiscal year of the first five years the amended section is in effect, there will be no impact on local government as a result of the amendment.
Mr. Kerr has determined that for the first five years that the proposed amendment is in effect, there will be no fiscal impact on small or micro-businesses.
Sherry Cook, Assistant Administrator, has determined that for each of the first five years that the amendment is in effect, it is anticipated that the public will benefit as a result of the clarification added by the amendment.
Comments on the proposed amendment may be addressed to Joan Carol Bates, Deputy General Counsel, Texas Alcoholic Beverage Commission, P.O. Box 13127, Austin, Texas 78711, or by electronic mail to joan.bates@tabc.state.tx.us. Comments will be accepted for 30 days following publication of the proposed amendment in the Texas Register.
The proposed amendment to §34.1 is authorized by §5.362 of the Texas Alcoholic Beverage Code (code), which provides the commission with authority to adopt by rule the schedule of sanctions and penalties, and by §5.31 of the code, which provides the commission with authority to prescribe and publish rules necessary to carry out the provisions of the code.
Cross Reference: Section 5.31 and §5.362, of the Alcoholic Beverage Code and Chapter 34 of the commission rules are affected by the proposed amendment.
§34.1.General Provisions.
(a) This rule relates to §§11.61, 11.64, 11.641 and 106.13 of the Alcoholic Beverage Code.
(b) Agents, compliance officers or other specifically designated commission personnel have authority to settle a complaint issued by the commission against a person for a violation of the Texas Alcoholic Beverage Code (Code), prior to filing a contested case under Government Code, Chapter 2001, Subchapter C (Administrative Procedure Act).
(c) A settlement authorized by this chapter must reflect the number of days a permit will be suspended or the amount of civil penalty authorized per day in lieu of suspension and shall conform to the other provisions of this chapter.
(d) A written warning may be issued for any violation if it is determined by designated commission personnel to be an effective deterrent from further violations of the Code.
(1) A written warning may be used as an aggravating circumstance for purposes of determining the appropriate sanction under §34.2.
(2) A written warning is subject to the rights and procedures of a contested case under the Administrative Procedure Act.
(3) A written warning is an administrative notice issued by a representative of the commission to the permit or license holder documenting that a violation of the TABC code or rules has occurred.
(e) Any case alleging a sale to a minor or intoxicated person in violation of Alcoholic Beverage Code §§11.61(b)(14), 61.71(a)(6) or 101.63 in which the unlawful sale or service directly or indirectly caused death or serious bodily injury shall be referred directly to the Legal Services Division by district or regional personnel without an offer of settlement or compromise provided to the permittee/licensee. For purposes of this section, "serious bodily injury" means as defined in §1.07(a)(46) of the Texas Penal Code.
(f) Each suspension of a permit or license shall run for consecutive days. A person assessed a suspension by the commission may be provided with an opportunity to pay a civil penalty in lieu of a suspension as provided by §11.64 of the Code. The commission may, in its discretion, allow a licensee/permittee to divide an imposed sanction between civil penalty and suspension.
(g) A subsequent violation of the Code or rule will result in a sanction in the next higher violation level if the subsequent violation:
(1) is for a health, safety and welfare violation and occurs within 36 months of the prior violation, or
(2) is for a violation listed in the major regulatory violation category within 24 months of the prior violation, and
(3) the person has been given written notice of the prior violation, or
(4) the subsequent violation is issued during an undercover operation
(h) The list of violations in §34.2 is not intended to be an exhaustive list of possible violations of the Code or rules of the commission. A sanction for a violation of the Code or rules that is not listed in §34.2 must be approved by either the assistant administrator for field operations or a division director prior to entering into a settlement.
(i) A person authorized to enter into a settlement under this section is also authorized to recommend a deviation from sanctions in §34.2 when aggravating or mitigating circumstances are found to exist.
(1) A recommendation to deviate from sanctions in §34.2 must be made in writing.
(2) The administrator or his designee must approve a recommendation to deviate from §34.2 before the settlement may be offered.
(j) This chapter [section] does
not apply to a contested case brought under Chapters C and D of the
Administrative Procedure Act, or a complaint or violation referred
to the legal division of the commission for resolution.
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 January 23, 2009.
TRD-200900294
Alan Steen
Administrator
Texas Alcoholic Beverage Commission
Earliest possible date of adoption: March 8, 2009
For further information, please call: (512) 206-3204
CHAPTER 403. GENERAL ADMINISTRATION
The Texas Lottery Commission (Commission) proposes new 16 TAC §403.501 (Custody and Use of Criminal History Record Information). The purpose of the proposed new rule is to meet the statutory requirement of Texas Government Code, Chapter 466, Subchapter E, §466.205(b) providing policies for the custody and use of criminal history information. The new rule establishes that all criminal history information will be kept in a secure environment and provided to Commission staff, as needed, to meet the statutory requirements of the Texas Lottery Act and the Bingo Enabling Act; and, will not be released or disclosed except on court order.
Kathy Pyka, Controller, has determined that for each year of the first five years the new rule will be in effect, there will be no significant fiscal impact for state or local governments as a result of the proposed new rule. There will be no adverse effect on small businesses, micro businesses, or local or state employment. There will be no additional economic cost to persons required to comply with the new rule as proposed. Furthermore, an Economic Impact Statement and Regulatory Flexibility Analysis is not required because the new rule will not have an economic effect on small businesses as defined in Texas Government Code §2006.001(2).
Pete Wassdorf, Assistant General Counsel, has determined that for each year of the first five years the proposed new rule will be in effect, the public benefit anticipated will be that the Texas Lottery Commission meets the requirements of Texas Government Code, Chapter 466, Subchapter E, §466.205(b). This rule is based on the current practices of the Commission and thus conforms the agency rules to the statutory requirements and agency practices.
The Commission requests comments on the new rule from any interested person. Comments on the proposed rule may be submitted to Pete Wassdorf, Assistant General Counsel, by mail at Texas Lottery Commission, P.O. Box 16630, Austin, Texas 78761-6630; by facsimile at (512) 344-5189; or by email at www.legal.input@lottery.state.tx.us. Comments must be received within 30 days after publication of this proposal in order to be considered.
The new rule is proposed under the specific requirement of Texas Government Code, Chapter 466, Subchapter E, §466.205(b), and the authority of Texas Government Code §466.015, which provides the Commission with the authority to adopt rules governing the operation of the lottery. The new rule is also proposed under the authority of Texas Government Code §467.102, which provides the Commission with the authority to adopt rules for the enforcement and administration of the laws under the Commission's jurisdiction.
This proposal is intended to implement Texas Government Code, §466.205(b).
§403.501.Custody and Use of Criminal History Record Information.
(a) The use of "criminal history record information," as defined by Texas Government Code, §411.082, obtained or maintained by the Texas Lottery Commission pursuant to Texas Government Code, Chapter 411, Subchapter F, §411.083 and §411.108, and Texas Government Code, Chapter 466, Subchapter E, §466.201, and as otherwise necessarily implied to meet the statutory requirements of the Texas State Lottery Act and the Bingo Enabling Act (collectively referred to as the Acts), shall be limited to the use of the Texas Lottery Commission and staff in determining whether the various persons enumerated in the Acts meet the statutory requirements of the Acts. All criminal history record information received by the Texas Lottery Commission is confidential information or will be treated as confidential information and is for the exclusive use of the Texas Lottery Commission and its staff. Criminal history record information obtained by the Commission under the above referenced statutes will not be released or disclosed to any person except on court order, provided that the Texas Lottery Commission may disclose to the person who is the subject of the criminal history record information the dates and places of arrests, offenses, and dispositions contained in the criminal history record information.
(b) All criminal history information will be kept in the enforcement division under secure control. The criminal history information will be provided to the persons listed in subsection (c) of this section on an as needed basis. Copies of criminal history records will not be made by staff unless approved by the division director. Any copy made should be destroyed when its use has been fulfilled.
(c) Access to criminal history record information maintained by the Texas Lottery Commission will be limited to the following persons:
(1) Commissioners of the Texas Lottery Commission;
(2) the Executive Director or Deputy Executive Director of the Commission;
(3) any attorney employed by the Texas Lottery Commission or an assistant attorney general representing the interest of the Texas Lottery Commission;
(4) employees of the Enforcement Division;
(5) division directors and employees of divisions authorized to make approvals or disapprovals based on criminal history information; and
(6) any person appointed to act on behalf of or in the stead of any of the individuals listed in paragraphs (1) - (5) of this subsection.
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 January 21, 2009.
TRD-200900251
Kimberly L. Kiplin
General Counsel
Texas Lottery Commission
Earliest possible date of adoption: March 8, 2009
For further information, please call: (512) 344-5012