Proposed Sections
Before an agency may permanently adopt a new or amended section, or repeal an 
existing section, a proposal detailing the action must be published in the Texas 
Register at least 30 days before any action may be taken. The 30-day time period 
gives interested persons an opportunity to review and make oral or written 
comments on the section. Also, in the case of substantive sections, a public 
hearing must be granted if requested by at least 25 persons, a governmental 
subdivision or agency, or an association having at least 25 members.
Symbology in proposed amendments. New language added to an existing section is 
indicated by the use of bold text. [Brackets] indicate deletion of existing 
material within a section.
TITLE 1. ADMINISTRATION
Part XII. Advisory Commission on State Emergency Communications
Chapter 251. Regional Plans
1 TAC sec.251.1
The Advisory Commission on State Emergency Communications proposes an amendment 
to sec.251.1, concerning the standards for developing the regional plans for 9-
1-1 service within the 24 regional councils of government regions. Health and 
Safety Code, Chapter 771 requires the commission to develop minimum performance 
standards for equipment and operations of 9-1-1 service which are to be followed 
in establishing a 9-1-1 regional plan as outlined. The section defines for the 
councils of governments the minimum standards for 9-1-1.
Mary A. Boyd, executive director, has determined that there will be fiscal 
implications as a result of enforcing or administering the section. There will 
be no effect on state government for the first five-year period the section is 
in effect. The commission has no historical data and is unable to estimate the 
exact fiscal impact on local government. The 9-1-1 services are to be funded by 
a service fee on local access and a 9-1-1 surcharge established in Chapter 255.
A 9-1-1 service fee of a maximum of 50 cents per access line and a 9-1-1 
surcharge on intrastate long distance telephone service will be assessed as 
specified in Chapter d55. The commission has no historical data and is unable to 
estimate an exact fiscal impact.
Businesses will be charged based upon the number of telephone access lines used 
and the amount of intrastate long distance service used. The commission has no 
historical data and is unable to estimate the exact fiscal impact.
Ms. Boyd also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be to ease and expedite the reporting of police, fire, or medical 
emergencies by the implementation of the single 9-1-1 emergency number. The 
anticipated economic cost to persons who are required to comply with the section 
as proposed will be persons in areas implementing 9-1-1 under this statute will 
be charged a 9-1-1 service fee of a maximum of 50 cents per month and a charge 
on intrastate long distance service as required in Chapter 255.
Comments on the proposal may be submitted to Mary A. Boyd, Executive Director, 
Advisory Commission on State Emergency Communications, 1101 Capital of Texas 
Highway, South B-100, Austin, Texas 78746, (512) 327-1911.
The amendment is proposed under the Health and Safety Code, Chapter 711, which 
provides the Advisory Commission on Emergency Communications with the authority 
to administer the implementation of statewide 9-1-1 emergency telephone service.
sec.251.1. Regional Plans for 9-1-1 Service.
(a) All 9-1-1 service plans must be submitted to the Advisory Commission on 
State Emergency Communications (the commission) by a regional council of 
government (RCOG) as specified by  <nl>Health and Safety Code, Chapter 771. 
056<ol> [Texas Civil Statutes, Article 1432f, sec.5(a) and sec.5(e)].
(b) All 9-1-1 service plans submitted for approval must address the entire 
geographic area within the boundaries of an RCOG. The plan must identify all 
public safety agencies as participating or non-participating. All counties with 
a population greater than 120,000, according to the latest federal census, must 
have 9-1-1 service by September 1, 1995. In counties with less than 120,000 in 
population, resolutions supporting the plan must be included for all 
participating cities and counties. Because the definition of public agency in 
<nl>Health and Safety Code, Chapter 771.001(6) <ol> [Texas Civil Statutes, 
Article 1432f] creates a possibility of overlapping jurisdictions, the city or 
county government of that area should submit the resolution to support the plan.
(c) <nl>A regional plan may be amended according to procedure outlined in 
sec.251.2<ol> of this title (relating to Guidelines for Regional Plan 
Amendments) [Initial plans for 9-1-1 service must be submitted by all RCOGs 
before September 1, 1989, as required by Texas Civil Statutes, Article 1432f, 
sec.9].
(d)-(e) (No change.)
(f) The plan must include a description of how the service is to be administered 
as required by <nl>Health and Safety Code, Chapter 771.055(b)<ol> [Texas Civil 
Statutes, Article 1432f,  s5(b)].
(g) The plan must include a description of how money allocated to the RCOG under 
<nl>Health and Safety Code, Chapter 771 <ol> [Texas Civil Statutes, Article 
1432f] is to be allocated within the region as required by <nl>Health and Safety 
Code, Chapter 771.055(c)<ol> [Texas Civil Statutes, Article 1432f, sec.5(c)].
(h) The plan must include detailed descriptions of the cost of equipment and the 
operating expenses for the proposed 9-1-1 service that are to be funded by fees 
or surcharges collected in accordance with <nl>Health and Safety Code, Chapter 
771 Subchapter D<ol> [Texas Civil Statutes, Article 1432f, sec.6].
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on September 24, 1991.
TRD-9111752
Mary A. Boyd
Executive Director
Advisory Commission on State Emergency Communications
Earliest possible date of adoption: November 1, 1991
For further information, please call: (512) 327-1911
       
Chapter 255. Finance
1 TAC sec.255.1
The Advisory Commission on State Emergency Communications proposes an amendment 
to sec.255.1, concerning the establishment of a statewide 9-1-1 equalization 
surcharge. The amendment reflects appropriate statute reference in the language 
that establishes the statewide 9-1-1 equalization surcharge.
Mary A. Boyd, executive director, has determined that there will be fiscal 
implications as a result of enforcing or administering the rule. There will be 
no effect on state government for the first five-year period the section is in 
effect. The commission has no historical data and is unable to estimate an exact 
fiscal impact on local government other than, the 9-1-1 surcharge will be 
assessed at a rate of 2/10 of 1.090 to each customer receiving intrastate long-
distance service.
Small businesses will be assessed a 9-1-1 surcharge at a rate of 2/10 of 1.0% to 
each customer receiving intrastate long-distance service in counties having a 
population of 120,000 or more. The commission has no historical data and is 
unable to estimate an exact fiscal impact.
Small and large businesses will be impacted the same at a rate of 2/10 of 1. 0% 
to each customer receiving intrastate long-distance service in counties having a 
population of 120,000 or more.
Ms. Boyd also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
sections will be to ease and expedite the reporting of police, fire, or medical 
emergencies by implementation of the single three-digit 9-1-1 emergency number 
which allows for faster access and response of emergency vehicles. The 
commission has no historical data and is unable to estimate an exact fiscal 
impact on the public other than a 9-1-1 surcharge will be assessed at a rate of 
2/10 of 1.0% to each customer receiving intrastate long-distance service.
Comments on the proposal may be submitted to Mary A. Boyd, Executive Director, 
Advisory Commission on State Emergency Communications, 1101 Capital of Texas 
Highway, South B-100, Austin, Texas 78746, (512) 327-1911.
The amendment is proposed under the Health and Safety Code, Chapter 771, which 
provides the Advisory Commission on State Emergency Communications with the 
authority to administer the implementation of statewide 9-1-1 emergency 
telephone service.
sec.255.1. Statewide 9-1-1 Equalization Surcharge. An equalization surcharge is 
hereby established in the amount of 2/10 of 1.0% (0. 20%), the amount to be 
rounded up to the next whole $.01 in the case of fractions. This surcharge will 
be assessed to each customer receiving intrastate long distance service, except 
those exempted by <nl>Health and Safety Code, Chapter 771.001, or commission 
rule <ol> [Texas Civil Statutes, Article 1432f]. The surcharge shall be applied 
to the total amount for intrastate long-distance service charged by the 
customer's long-distance service provider, but such amount shall not include 
taxes charged by local, state, and federal authorities, nor shall local, state, 
or federal taxes be applied to this surcharge unless otherwise required by law.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on September 24, 1991.
TRD-9111751
Mary A. Boyd
Executive Director
Advisory Commission on State Emergency Communications
Earliest possible date of adoption: November 11, 1991
For further information, please call: (512) 327-1911
       
TITLE 7. BANKING AND SECURITIES
Part VI. Credit Union Department
Chapter 91. Chartering, Operations, Mergers, Liquidations
Organization Procedures
7 TAC sec.91.211
The Credit Union Commission proposes amendment to sec.91.211, concerning foreign 
credit unions having branch offices in Texas. The principal change will require 
deposit accounts to be federally insured by the National Credit Union Share 
Insurance Fund.
John R. Hale, commissioner, has determined that for the first five-year period 
the section is in effect there will be no fiscal implications for state or local 
government as a result of enforcing or administering the section.
Mr. Hale also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be all credit unions operating in Texas will have federal deposit 
insurance. There will be no effect on small businesses. The anticipated economic 
cost to persons who are required to comply with the section as proposed will be 
comparable to, perhaps even less, than the cost of private deposit insurance.
Comments on the proposals will be submitted to Harry L. Elliott, Staff Services 
Officer, 914 East Anderson Lane, Austin, Texas 78752-1699.
The amendment is proposed under Texas Civil Statutes, Article 2461-11.07, which 
provide the Credit Union Commission with the authority to adopt reasonable rules 
necessary for the administration of the Texas Credit Union Act.
sec.91.211. Foreign State Credit Union Branch Offices.
(a)-(b) (No change.)
(c) In order to protect the interest of the citizens of the State of Texas, the 
commissioner shall approve the application if he finds that the applicant:
(1)-(8) (No change.)
(9) has proven that the shares and deposits of its members in the State of Texas 
are insured <nl>by the National Credit Union Insurance Fund or its successor by 
no later than 30, 1993. Any credit union subject to this rule and unable to 
qualify for federal share deposit by June 30, 1993, may be granted one or more 
six-month extensions by the commissioner to qualify for federal insurance, if 
the commissioner finds that the credit union is making substantial progress in 
qualifying for federal insurance with the NCUA;<ol> [or guaranteed comparable to 
credit unions chartered pursuant to the Act;]
(10)-(11) (No change.)
(d)-(g) (No change.)
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on September 20, 1991.
TRD-9111681
John R. Hale
Commissioner
Credit Union Department
Earliest possible date of adoption: November 1, 1991
For further information, please call: (512) 837-9236
       
TITLE 16. ECONOMIC REGULATION
Part I. Railroad Commission of Texas
Chapter 5. Transportation Division
Subchapter G. C.O.D. Shipments
16 TAC sec.5.116
The Railroad Commission of Texas proposes an amendment to sec.5.116, concerning 
remittance of C.O.D. charges, pursuant to a petition from Kerrville Bus Company, 
Inc. The section establishes the requirements for remittance of C.O. D. charges 
by carriers to consignors. The proposed amendment would differentiate between 
motor carriers and motor bus companies, and would increase the period within 
which motor bus companies must remit C.O.D. charges to consignors from 10 days 
to 30 days, while retaining the 10-day remittance requirement for motor 
carriers.
Jackye Greenlee, assistant director-central operations, has determined that for 
the first five-year period the section is in effect there will be no fiscal 
implications for state or local government as a result of enforcing or 
administering the section.
Kenneth W. Mills, hearings examiner, has determined that for each year of the 
first five years the section is in effect the public benefit anticipated as a 
result of enforcing the section will be that a motor bus company will have 
sufficient time to have its agents in small communities collect C.O.D. charges, 
send those collected charges to its main office, and then remit the charges to 
the appropriate consignor. There will be no effect on small businesses. There is 
no anticipated economic cost to persons who are required to comply with the 
section as proposed.
Comments on the proposal may be submitted to Kenneth W. Mills, Hearings 
Examiner, Legal Division, Railroad Commission of Texas, P.O. Drawer 12967, 
Austin, Texas 78711. Comments will be accepted for 30 days after publication in 
the Texas Register.
The amendment is proposed under the Texas Motor Bus Act, Texas Civil Statutes, 
Article 911a, and the Texas Motor Carrier Act, Texas Civil Statutes, Article 
911b, which authorize the commission to regulate motor bus companies and motor 
carriers, respectively, in all matters.
sec.5.116. Remittance.
<nl>(a) The delivering <nl>motor<ol> carrier shall remit the C.O.D. charges to 
the consignor or designated payee within 10 days from date of delivery, Sundays 
and legal holidays excepted. The charge or fee for collecting and remitting 
C.O.D. amounts shall be by separate remittance. A transmittal instrument shall 
accompany and identify the remittance.
<nl>(b) The delivering motor bus company shall remit the C.O.D. charges to the 
consignor or designated payee within 30 days from date of delivery, Sundays or 
legal holidays excepted. The charge or fee for collecting and remitting C.O.D. 
amounts shall be by separate remittance. A transmittal instrument shall 
accompany and identify the remittance.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on September 23, 1991.
TRD-9111773
Martha V. Swanger
Hearings Examiner, Gas Utilities/LP-Gas Section, Legal Division
Railroad Commission of Texas
Earliest possible date of adoption: November 1, 1991
For further information, please call: (512) 463-7094
       
Subchapter H. Allowances Prohibited
16 TAC sec.5.133
Pursuant to a petition filed by J. & H. Truck Service, Inc., the Railroad 
Commission of Texas proposes an amendment to  s5.133, concerning prohibited 
allowances. The amendment will add provisions prohibiting allowances given by 
specialized motor carriers and affiliated shippers, producers, or distributors 
as defined in the amendment, of sand, gravel, and other similar type road 
building and construction commodities. The amendment will prevent manipulations 
of the commission's rates and tariffs, and deter business practices that have 
developed in the sand and gravel industry which interfere with the public's 
right to select a carrier of its choice.
Jackye Greenlee, assistant director-central operations, has determined that for 
the first five-year period the section is in effect there will be no fiscal 
implications for state or local government as a result of enforcing or 
administering the section.
Linda G. Sorrells, hearing examiner, has determined that for each year of the 
first five years the section is in effect the public benefit anticipated as a 
result of enforcing the section will be the promotion of fair business practices 
that protect the public's right to select carriers of their choice. There will 
be no effect on small businesses. There is no anticipated economic cost to 
persons who are required to comply with the section as proposed.
Comments on the proposal may be submitted to Linda G. Sorrells, Hearings 
Examiner, Legal Division, Railroad Commission of Texas, P.O. Box 12967, Austin, 
Texas 78711. Comments will be accepted for 30 days after publication in the 
Texas Register.
The amendment is proposed under the Texas Motor Carrier Act, Texas Civil 
Statutes, Article 911b, which authorize the commission to prescribe rules and 
regulations for the operations of motor carriers.
sec.5.133. Allowances Prohibited.
<nl>(a) No motor carrier or motor bus company shall grant, pay, give, or make 
any allowance to the owner, shipper, consignor, or consignee of any property or 
shipment, for any service or instrumentality furnished by the owner, shipper, 
consignor, or consignee, unless such allowance is prescribed or permitted in a 
lawfully applicable tariff, schedule, or specific order of the commission.
<nl>(b) No motor carrier authorized to transport sand, gravel, aggregate, and 
other construction materials or road building materials, in bulk, nor any 
affiliated producer, shipper, or other distributor of sand, gravel, aggregate, 
and other construction materials or road building materials, in bulk, shall 
directly or indirectly offer to provide any regulated motor carrier service 
pursuant to certificates issued by this commission on the basis of a combination 
bid, quote, invoice, or by any other means whatever which includes both material 
and transportation at a single delivered price, unless there is also clearly 
shown and set forth in the bid, quote, invoice, or other writing the exact and 
true selling price of the material and a statement for freight charges for not 
less than the minimum tariff charge for the involved transportation. The term 
"Affiliated" as used in the context of this provision shall mean the association 
or combination of two or more companies, corporation, individuals, joint stock 
companies, or partnerships who control or have the power to control both the 
motor carrier an the said producer, shipper, or other distributor of the 
previously enumerated commodities regardless of how such control or power to 
control is reached or achieved.
<nl>(c) No producer, shipper, or other distributor of sand, gravel, aggregate, 
and other construction materials or road building materials, in bulk, which in 
affiliated by ownership, control, or otherwise with a carrier certificated by 
this commission to transport said commodities, as described in subsection (b) of 
this section, shall refuse to sell materials to any customer to whom a 
combination bid or quote for material and transportation has been made or given 
by such affiliated companies, or to load any other carrier authorized by this 
commission to transport said commodities when such customer elected to use 
another carrier or transport the commodities in the customer's own equipment.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on September 23, 1991.
TRD-9111774
Martha V. Swanger
Hearings Examiner, Gas Utilities/LP-Gas Section, Legal Division
Railroad Commission of Texas
Earliest possible date of adoption: November 1, 1991
For further information, please call: (512) 463-7096
       
TITLE 22. EXAMINING BOARDS
Part XXI. Texas State Board of Examiners of Psychologists
Chapter 463. Applications
22 TAC sec.463.6
The Texas State Board of Examiners of Psychologists proposes an amendment to 
sec.463.6, concerning experience. To clarify to applicants that even though they 
may be employed in an "exempt agency" if they want their supervised experience 
to count toward the certification or licensure requirement, the supervision 
guidelines must be followed.
Patricia S. Bizzell Tweedy, executive director, has determined that for the 
first five-year period the section is in effect there will be no fiscal 
implications for state or local government as a result of enforcing or 
administering the section.
Ms. Bizzell (Tweedy) also has determined that for each year of the first five 
years the section is in effect the public benefit anticipated as a result of 
enforcing the section will be to clarify the board's requirements for licensure 
so that potential applicants will place themselves in appropriate work settings 
to obtain experience that will be acceptable to the board. There will be no 
effect on small businesses. There is no anticipated economic cost to persons who 
are required to comply with the section as proposed.
Comments on the proposal may be submitted to Patricia S. Bizzell Tweedy, M.P. 
A., 9101 Burnet Road, Suite 212, Austin, Texas 78758.
The amendment is proposed under Texas Civil Statutes, Article 4512c, which 
provide the Texas State Board of Examiners of Psychologists with the authority 
to make all rules, not inconsistent with the Constitution and laws of this 
state, which are reasonably necessary for the proper performance of its duties 
and regulations of proceedings before it.
sec.463.6. Experience.  Supervision may be obtained only in a full-time or half-
time setting.
(1)-(11) (No change.)
<nl>(12) All applicants obtaining experience for the purpose of certification 
and licensure must adhere to the board's supervision guidelines currently in 
effect in sec.465.18 of this title (relating to Time Period for Appealing a 
Decision) regardless of employment setting.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on September 20, 1991.
TRD-9111712
Patricia S. Bizzell Tweedy
Executive Director
Texas State Board of Examiners of Psychologists
Earliest possible date of adoption: November 1, 1991
For further information, please call: (512) 835-2036
       
22 TAC sec.463.20
The Texas State Board of Examiners of Psychologists proposes an amendment to 
sec.463.20, concerning regionally accredited institutions. The board requires 
that applicants graduate from a school that is accredited at the time of 
graduation.
Patricia S. Bizzell Tweedy, executive director, has determined that for the 
first five-year period the section is in effect there will be no fiscal 
implications for state or local government as a result of enforcing or 
administering the section.
Ms. Bizzell Tweedy also has determined that for each year of the first five 
years the section is in effect the public benefit anticipated as a result of 
enforcing the section will be that the school must be accredited at the time of 
graduation which ensures that specific educational requirements have been met. 
There will be no effect on small businesses. There is no anticipated economic 
cost to persons who are required to comply with the section as proposed.
Comments on the proposal may be submitted to Patricia S. Bizzell Tweedy, M.P. 
A., 9101 Burnet Road, Suite 212, Austin, Texas 78758.
The amendment is proposed under Texas Civil Statutes, Article 4512c, which 
provide the Texas State Board of Examiners of Psychologists with the authority 
to make all rules, not inconsistent with the Constitution and laws of this 
state, which are reasonably necessary for the proper performance of its duties 
and regulations of proceedings before it.
sec.463.20. Regionally Accredited Institutions.
[(a)] A regionally accredited educational institution stated in the Act, 
sec.sec.11a, 19, and 22a(3) is defined as an educational institution which 
satisfied the standards of the accrediting association in one of the following 
six regions throughout the United States:
(1) Southern Association of Colleges and Schools;
(2) Western Association of Schools and Colleges;
(3) Northwest Association of Schools and Colleges;
(4) North Central Association of Colleges and Schools;
(5) New England Association of Schools and Colleges;
(6) Middle States Association of Colleges and Schools.
[(b) A degree from a newly regionally accredited educational institution will be 
accepted retroactively to January of the same calendar year that the school is 
accredited.]
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on September 20, 1991.
TRD-9111713
Patricia S. Bizzell Tweedy
Executive Director
Texas State Board of Examiners of Psychologists
Earliest possible date of adoption: November 1, 1991
For further information, please call: (512) 835-2036
       
Chapter 465. Rules of Practice
22 TAC sec.465.25
The Texas State Board of Examiners of Psychologists proposes an amendment to 
sec.465.25, concerning complaints regarding authorization for psychological 
services to minors. The board needs a rule to accept only complaints that deal 
with potential complaints against a psychologist's professional activities.
Patricia S. Bizzell Tweedy, executive director, has determined that for the 
first five-year period the section is in effect there will be no fiscal 
implications for state or local government as a result of enforcing or 
administering the section.
Ms. Bizzell Tweedy also has determined that for each year of the first five 
years the section is in effect the public benefit anticipated as a result of 
enforcing the section will be that funds will not be expended to determine if a 
court violation has occurred. That determination will be given back to the 
courts to decide. This will reduce the amount of money the board spends on its 
investigation of complaints. There will be no effect on small businesses. There 
is no anticipated economic cost to persons who are required to comply with the 
section as proposed.
Comments on the proposal may be submitted to Patricia S. Bizzell Tweedy, M.P. 
A., 9101 Burnet Road, Suite 212, Austin, Texas 78758.
The amendment is proposed under Texas Civil Statutes, Article 4512c, which 
provide the Texas State Board of Examiners of Psychologists with the authority 
to make all rules, not inconsistent with the Constitution and laws of this 
state, which are reasonably necessary for the proper performance of its duties 
and regulations of proceedings before it.
sec.465.25. Complaints Regarding Authorization for Psychological Services to 
Minors.<nl> No complaint will be processed against a person if such compliant is 
predicated upon a violation of a court order unless such complaint includes 
certified court documents which show that the court has decided that the 
psychologist did violate the specific court order and the court's action in 
response to such violation. <ol> [Any compliant concerning the authorization of 
psychological services for minor children and/or parent/child relationship will 
not be considered by the board.] The board retains the prerogative to act in 
accordance with the Psychologists' Certification and Licensing Act to protect 
the health, safety, or welfare of the general public.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on September 20, 1991.
TRD-9111714
Patricia S. Bizzell Tweedy
Executive Director
Texas State Board of Examiners of Psychologists
Earliest possible date of adoption: November 1, 1991
For further information, please call: (512) 835-2036
       
22 TAC sec.465.27
The Texas State Board of Examiners of Psychologists proposes new sec.465.27, 
concerning projective techniques. The board determined that psychologists 
receive an extensive amount of training in their doctoral programs to learn 
projective techniques. These techniques are the practice of psychology.
Patricia S. Bizzell Tweedy, executive director, has determined that for the 
first five-year period the section is in effect there will be no fiscal 
implications for state or local government as a result of enforcing or 
administering the section.
Ms. Bizzell Tweedy also has determined that for each year of the first five 
years the section is in effect the public benefit anticipated as a result of 
enforcing the section will to put public on notice that projective techniques 
are the practice of psychology and require licensure as a psychologist to use. 
There will be no effect on small businesses. There is no anticipated economic 
cost to persons who are required to comply with the section as proposed.
Comments on the proposal may be submitted to Patricia S. Bizzell Tweedy, M.P. 
A., 9101 Burnet Road, Suite 212, Austin, Texas 78758.
The new section is proposed under Texas Civil Statutes, Article 4512c, which 
provide the Texas State Board of Examiners of Psychologists with the authority 
to make all rules, not inconsistent with the Constitution and laws of this 
state, which are reasonably necessary for the proper performance of its duties 
and regulations of proceedings before it.
sec.465.27. Projective Techniques. <ol> Projective techniques are the practice 
of psychology. These techniques include, but are not limited to, Rorschach, 
thematic apperception text, sentence completion tests, and Holtzman Ink Blot.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on September 20, 1991.
TRD-9111715
Patricia S. Bizzell Tweedy
Executive Director
Texas State Board of Examiners of Psychologists
Earliest possible date of adoption: November 1, 1991
For further information, please call: (512) 835-2036
       
Chapter 471. Renewals
22 TAC sec.471.6
The Texas State Board of Examiners of Psychologists proposes an amendment to 
sec.471.6, concerning staggered renewals. The board is proposing a rule to 
stagger renewals throughout the year rather than having them come due all at one 
time in December.
Patricia S. Bizzell Tweedy, executive director, has determined that for the 
first five-year period the section is in effect there will be no fiscal 
implications for state or local government as a result of enforcing or 
administering the section.
Ms. Bizzell Tweedy also has determined that for each year of the first five 
years the section is in effect the public benefit anticipated as a result of 
enforcing the section will be that renewals will be processed more timely 
because the work load of the board's staff will be distributed more evenly 
throughout the year. Consequently, the public will receive more current 
information about the status of a psychologist's license. There will be no 
effect on small businesses. There is no anticipated economic cost to persons who 
are required to comply with the section as proposed.
Comments on the proposal may be submitted to Patricia S. Bizzell Tweedy, M.P. 
A., 9101 Burnet Road, Suite 212, Austin, Texas 78758.
The new section is proposed under Texas Civil Statutes, Article 4512c, which 
provide the Texas State Board of Examiners of Psychologists with the authority 
to make all rules, not inconsistent with the Constitution and laws of this 
state, which are reasonably necessary for the proper performance of its duties 
and regulations of proceedings before it.
sec.471.6. Staggered Renewals. <ol> Annual renewals for psychologist 
certification, licensure, and psychological associate certification are due on 
the last day of each person's birth month. For fiscal 1992 pro-rated adjustments 
will be made in the required fee in order to implement the staggered renewal 
system.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on September 20, 1991.
TRD-9111716
Patricia S. Bizzell Tweedy
Executive Director
Texas State Board of Examiners of Psychologists
Earliest possible date of adoption: November 1, 1991
For further information, please call: (512) 835-2036
       
Part XXV. Structural Pest Control Board
Chapter 593. Licenses
22 TAC sec.sec.593.1-593.7, 593.9, 593.10, 593.21-593.24
The Structural Pest Control Board proposes amendments to  ssec.593.1-593.7, 
593.9, 593.21, and new sec.sec.593.10, 593.22, 593.23, and 593.24, concerning 
persons required to secure license; license application; insurance requirement; 
resident agent; examinations; license expiration and renewal; fees; licensing of 
persons with criminal backgrounds; and technician license standards. These 
amendments and new sections create new requirements for obtaining a technician 
license and create a new class of licensing, technician-apprentice. The 
amendments and new sections also create a certified noncommercial applicator 
license. Insurance requirements are increased to reflect new statutory minimum 
requirements and to create insurance requirements for certified non-commercial 
applicators. The amendments and new sections create a new licensure category in 
commodity fumigation. The amendments and new sections also change the fee 
structure to reflect increases in the costs of operation and the new licensure 
categories. Licensing of technicians is changed to require testing in order to 
obtain a license.
New sec.593.10 establishes licensure requirements for persons with delinquent 
student loans and requires that persons in default on student loans not have 
their licenses renewed until they have repaid the loan or entered a repayment 
agreement. New sec.593.22 establishes testing procedures and fees for the 
technician license. New sec.593.23 establishes continuing education requirements 
which are proposed in order to make education and increased proficiency 
mandatory among certified applicators. The new rule allows proration of credits 
for newly licensed applicators. The rule requires prior approval of speakers and 
courses by a special committee of the board. It also allows reevaluation of a 
course at the request of a committee member. Under the new rule, the board may 
enter into agreements to recognize continuing education requirements of related 
professional organizations. New sec.593.24 establishes criteria for evaluating 
continuing education programs for approval. It details the materials which must 
be supplied to the board, and the fee which must be paid. It also exempts 
personnel of the board from any fee which might be imposed to attend the course.
Benny M. Mathis, Jr., executive director, has determined that for the first 
five-year period the sections are in effect there will be fiscal implications 
for state and local government as a result of enforcing or administering the 
sections. The effect on state government for the first five-year period the 
sections are in effect will be an estimated additional cost of $349,220 for 
fiscal year (fy) 1992 and $247,643 for fy 1993-1996; and an estimated increase 
in revenue of $410,550 for fy 1992 and $437,550 for fy 193-1996. The effect on 
local government for the first five-year period the sections are in effect will 
be an estimated additional cost of $31,500 for fy 1992 and $48,000 for fy 1993-
1996; and an estimated loss in revenue of $31,500 for fy 1992 and $48,000 for fy 
1993-1996.
Mr. Mathis also has determined that for each year of the first five years the 
sections are in effect the public benefit anticipated as a result of enforcing 
the sections will be to strengthen education and training for the persons 
involved in performing actual pest control service. An increase in public 
protection will be created through the increase in insurance requirements. The 
certified noncommercial applicator license will also ensure that all pest 
control services in sensitive institutions are performed by someone with 
adequate training and testing. The effect on small businesses will be $42 per 
year. The cost of liability insurance will increase approximately 4.0% but the 
rules were changed because of the increase in minimum requirements. The effect 
on small businesses compared to the effect on the largest businesses affected by 
the sections, based on cost per employee, will be as follows: business license 
holder-$18 per year; certified applicator -$18 per year; technician license-
$30.00 per year; training manual-$7.50 as needed; technician-apprentice-$18 per 
year. The anticipated economic cost to persons who are required to comply with 
the sections as proposed will be business license -$18 for fy 1992-1996; 
certified applicator license-$18 for fy 1992-1996; technician license-$30 for fy 
1992-1996; technician-apprentice-$18 for fy 1992-1996.
Comments on the proposal may be submitted to Roger Borgelt, 9101 Burnet Road, 
Suite 201, Austin, Texas 78758.
The amendments and new sections are proposed under Texas Civil Statutes, Article 
135b-6, which provides the Structural Pest Control Board with the authority to 
establish standards for testing, licensing, and regulating persons engaged in 
the structural pest control business.
sec.593.1. Persons Required to Secure License.
(a) Business license. Any person engaged in the structural pest control business 
must secure a business license from the board for each business location, 
including branch offices, in accordance with the Act and the regulations. Each 
business license holder shall designate a responsible certified applicator who 
is not also serving as a certified applicator for any other business licensee[.] 
<nl>or any other business license location.<ol> No person shall advertise in any 
manner to render services or solicit business within the meaning of the Act 
without first obtaining a business license and having an applicator certified in 
each license category in which business is conducted.
(b) Certified <nl>commercial<ol> applicator. The person responsible to provide 
training and direct supervision for pest inspections, identifications, and 
control measures of a licensed business must be a certified <nl>commercial <ol> 
applicator. <nl>A person shall be a certified commercial applicator for only one 
business license location.
<nl>(c) Certified noncommercial applicator. The person who as an employee is 
responsible for providing pest control services to a governmental entity, 
apartment building, day-care center, hospital, nursing home, hotel, motel, 
lodge, warehouse, food-processing establishment, school, or educational 
institution. The person performing the actual inspection and/or application must 
be a licensed certified noncommercial applicator.
<nl>(d)<ol>[(c)] Technician. Individuals who perform pest control services under 
the direct supervision of a certified applicator must obtain a technician 
license by meeting the standards prescribed by the board in sec.593.21 of this 
title (relating to Technician License Standards). A technician must be licensed 
for every business for which he is employed.
sec.593.2. License Application.
(a) The application for a business license, a certified applicator license, 
[and] technician license<nl>, and technician-apprentice license <ol> shall be 
submitted on a regular form furnished by the board.
(b)-(c) (No change.)
sec.593.3. Insurance Requirement.
(a) Each business license applicant <nl>and certified noncommercial applicator 
license applicant<ol> must submit with the application an insurance policy or 
certificate of coverage in the amount of not less than <nl>$200,000<ol> 
[100,000] for bodily injury and property damage coverage with a minimum total 
annual aggregate of $300,000 for all occurrences insuring him against liability 
for damage to persons or property occurring as a result of operations performed 
in the course of the business of structural pest control to premises or any 
other property under his care, custody, or control. No new business license  
<nl>or certified noncommercial applicator license<ol> will be issued until 
insurance requirements are met. Policies shall contain a cancellation provision 
whereby notification of cancellation is received by the board not less than 30 
days prior to cancellation.  <nl>Certified noncommercial applicators employed by 
governmental entities are exempt from this provision.
(b)-(c) (No change.)
sec.593.4. Resident Agent.
(a) <nl>Licensed<ol> [license] <nl>applicators<ol> [applicants] who reside 
outside the state shall designate in writing a resident agent for service of 
process in actions taken in the administration and enforcement of the Act.
(b)-(c) (No change.)
sec.593.5. Examinations.
(a) (No change.)
(b) In order to qualify to take the Structural Pest Control Board test for 
obtaining a certified <nl>commercial <ol> applicators license, the applicant 
must have verifiable employment in the pest control industry under the 
supervision of a licensed certified <nl>commercial<ol> applicator for at least 
12 months out of the past 24 months and must have possessed a technician license 
for at least six months.
(1)  The proof of previous employment or experience in the industry <nl>or 
technical field experience from a previous occupation<ol> shall be furnished by 
the applicant in the form of a notarized statement.
(2) (No change.)
(c) The testing procedure will be as follows.
(1)-(12) (No change.)
(13) Categories in which examinations are to be given for which licenses will be 
issued are as follows.
(A)-(C)  (No change.)
(D) <nl>Structural fumigation <ol> [Fumigation]-This category includes persons 
engaged in <nl>wood destroying<ol> pest inspection and/or control through 
fumigation of structures[, food stuffs, warehouses, ships, railroad cars, etc].
<nl>(E) Commodity fumigation-This category includes persons engaged in pest 
inspection and/or control through fumigation of commodities.
<nl>(F)<ol>[(E)] Weed control -This category includes persons engaged in the 
inspection and/or control of weeds around homes and industrial environs.
<nl>(G)<ol>[(F)] Wood preservation -That phase of pest control that involves the 
addition of preservatives to wood to extend the life of wood products by 
protecting them from damage caused by insects, fungi, and marine borers. Such 
wood products will include, but not be limited to, crossties, poles, and posts. 
This category is intended only for use by those persons using wood preservatives 
that may be classified as restricted use.
(14) (No change.)
<nl>(d) A certified noncommercial applicator may not perform commercial pest 
control services or perform any structural pest control services for a person 
other than the employer for whom he/she is certified as a certified 
noncommercial applicator. A certified noncommercial applicator shall not be 
associated with a licensed structural pest control business.
sec.593.6. License Expiration and Renewal.
(a) (No change.)
(b) Businesses <nl>and certified noncommercial applicators <ol>that change 
insurance coverage during a licensed period may have the license expiration 
extended to the new policy date, if there has not been a lapse in coverage, by 
paying prorated license fees for each license to the new expiration date. 
<nl>Certified commercial applicators and technicians who change employers may 
also pay prorated license fees to the new expiration date of the business under 
which they are operating. <ol>The minimum prorated license fee is $5.00 for each 
license.
(c) Businesses <nl>and certified noncommercial applicators <ol>that allow 
insurance coverage to lapse or who fail to provide continuous proof of coverage 
to the board as a result of insurance changes will be required to reapply for a 
license and pay annual fees without receiving credit for any license period 
between the date of the lapse in coverage and the original license expiration 
date.
(d) The license fees for [certified applicators and] licensed <nl>technician-
apprentices<ol> [technicians] who change employers will not be prorated, and the 
new licenses will expire on the license expiration date of their new employer.
(e) Licenses must be renewed by submitting an application to the board, paying 
the required fee, and meeting any additional requirements of the board under 
sec.593.3 of this title (relating to Insurance Requirement) and subsection (h) 
of this section, 30 days prior to the license expiration date. Renewals 
submitted after the license expiration date are subject to the late fees 
prescribed in the Texas Structural Pest Control Act, sec.7(c). <nl>An 
application is not considered to be submitted unless it is in substantially 
correct form with the correct fees.
(f)  (No change.)
(g) Whenever a licensee changes his<nl>/her <ol> mailing address or business 
location, he/she shall notify the board in writing within <nl>10<ol> [30] days 
of the effective date of the change and submit the required fee for the license 
change.
(h) (No change.)
(i)  Beginning with the 1990 license renewals, all certified applicators will be 
required to certify to the board the number and category(ies) of continuing 
education credits they have accumulated during the previous year pursuant to 
<nl>sec.593.23 <ol> [593.22] of this title (relating to Continuing Education 
Requirements for Certified Applicators).
<nl>(j) Certified noncommercial applicators who have been licensed for a minimum 
of one year may become certified commercial applicators by paying a name change 
fee plus the prorated license fee to the expiration date of the business license 
under which they will operate. Certified commercial applicators may become 
certified noncommercial applicators by paying the name change fee, listing the 
name and address of the entity employing them and providing proof of liability 
insurance coverage as required by sec.593.3 of this title (relating to Insurance 
Requirement).
sec.593.7. Fees. Applicants and licensees will be charged the following fees for 
board services:
(1) <nl>$132<ol> [108] for an original or renewal of a business license;
(2) <nl>$66<ol> [48] for an original or renewal of a certified applicators 
license;
(3)  <nl>$48<ol> [18] for an original, renewal, or duplicate technician license;
<nl>(4) $18 for a technician -apprentice license.
<nl>(5) <ol>[(4)] $20 for duplicate business license or certified applicators 
license when the original has been lost or destroyed;
<nl>(6)<ol>[(5)] $20 for reissuing a business license <nl>,<ol> [or] certified 
applicators license<nl>, or technician license <ol>due to a name change in the 
license or a change of address;
<nl>(7)<ol>[(6)]$30 for administering exams in each category;
<nl>(8)<ol>[(7)] $37.50 for late renewal fee for up to 30 days late;
<nl>(9)<ol>[(8)] $75 for late renewal fee for 31-60 days late;
<nl>(10) $7.50 for a technician training course.
sec.593.9. Licensing of Persons With Criminal Backgrounds.
(a)-(b)  (No change.)
(c) In making a determination in a particular case, the crimes which the board 
considers as likely to be directly related to the performance of the licensed 
occupation or activity include, but are not limited to:
(1)-(8) (No change.)
(9) theft; [and]
(10) child molesting<nl>; and <ol> [.]
<nl>(11) possession of controlled substances.
(d)-(e) (No change.)
sec.593.10. Licensing of Persons with Delinquent Student Loans.
(a)  The board shall not renew a license of a person who is on the list of those 
who have defaulted on a loan guaranteed by the Texas Guaranteed Student Loan 
Corporation or a person who has defaulted on a repayment agreement unless:
(1) the renewal is the first renewal following September 1, 1991; or
(2) the licensee presents a certificate from the Texas Guaranteed Student Loan 
Corporation that the licensee has entered a repayment agreement or is not in 
default.
(b) Actions taken by the board under this provision shall be preceded by notice 
and opportunity for a hearing as mandated by the Administrative Procedure and 
Texas Register Act (Texas Civil Statutes, Article 6252-13a).
sec.593.21. Technician License Standards.
<nl>(a) The business licensee hiring an applicant for a technician-apprentice 
license must furnish the board with a technician-apprentice application and a 
fee of $18 on the applicant's date of employment. The application must contain 
the following information:
<nl>(1) applicant's full name;
<nl>(2)  applicant's home address;
<nl>(3) applicant's date of employment;
<nl>(4) applicant's social security number;
<nl>(5)  applicant's driver's license number;
<nl>(6) applicant's birthdate.
<nl>(b) Employees who have not received a technician-apprentice license may not 
perform unsupervised pest control work. Supervision of these employees requires 
the physical presence of a licensed technician or certified commercial 
applicator.
<nl>(c)<ol>[(a)] In order to qualify for a technician-apprentice [technician's] 
license, <nl>an applicant<ol> [a trainee] must:
<nl>(1)  file a technician-apprentice application with the board;
<nl>(2) <ol>[(1)] be at least 16 years of age; [[(2)] receive general training 
of at least 20 hours of verifiable classroom training that shall include at 
least two hours in each of the following subject areas:]
[(A) federal and state laws regulating structural pest control and pesticide 
application;
[(B) recognition of pest and pest damage;
[(C) pesticide labels and label comprehension;
[(D) pesticide safety;
[(E) environmental protection;
[(F) application equipment and techniques;
[(G) pesticide formulations and actions;
[(H) emergency procedures and pesticide cleanup;]
<nl>(3) be able to read and write the English language;
<nl>(4) complete the board-approved technician training course for the category 
of licensing desired and verify such completion in the manner prescribed by the 
board;
<nl>(5) <ol>[(3)] <nl>in each category in which the technician-apprentice is to 
provide supervised pest control services,<ol> receive 60 hours of verifiable on 
the job training and 10 hours of classroom training [in each category in which 
the technician is to operate as a licensed technician]. The on the job training 
means work performed <nl>that includes<ol> [for] education and training <nl>in 
the general category and each category for which the technician-apprentice is to 
become licensed<ol> [and should include but not be limited to the subject areas 
listed in subsection (a)(2)(A)-(H) of this section].
<nl>(d)<ol>[(b)]  The business license holder and certified <nl>commercial<ol> 
applicator shall certify to the board <nl>in writing <ol> [on each technician 
license application submitted] that the applicant has [satisfactorily] completed 
the required training and  <nl>has<ol> demonstrated competency in each of the 
subject areas in subsection <nl>(c)(4) <ol> [(a)(2)] and <nl>(5) <ol> [(3)] of 
this section. <nl>A technician-apprentice license will then be issued.
<nl>(e)<ol>[(c)] The business licensee shall maintain the training records for 
each <nl>technician-apprentice<ol> [trainee] in the company files for at least 
one year after termination of employment. The training records shall be kept on 
a form prescribed by the board and shall include, but not be limited to,  
<nl>the following:<ol> date [of] training [,] <nl>is received,<ol> number of 
hours <nl>of training<ol>, subject <nl>of training <ol>, <nl>name and license 
number of<ol> trainer, <nl>designation<ol> [type] of [training as to whether] on 
<nl>the<ol> job [training] or classroom training, and competency evaluation by 
the certified <nl>commercial <ol> applicator.
<nl>(f) <ol>[(d)] When a [licensed] technician<nl>-apprentice <ol> changes 
employers the employer who provided the verifiable training shall make the 
training record available to the technician<nl>-apprentice <ol> or the new 
employer upon written request.
<nl>(g)<ol>[(e)] It  <nl>is<ol> [shall be] a violation of this section for a 
business licensee to allow a technician <nl>-apprentice<ol> [or trainee] to 
perform unsupervised work in a category in which he has not been properly 
trained. <nl>Adequate supervision means personal contact with the certified 
commercial applicator at least three days per week.
[[(f)] Persons who have continuous employment and who have been properly 
registered with the Texas Structural Pest Control Board for the entire 1987 
license year shall be eligible for a technician license if they can furnish 
proof that they have received the 20 hours of required general training.]
<nl>(h) Upon receiving a technician-apprentice license, a technician-apprentice 
may become a licensed technician by passing the technician examination. An 
application for the technician examination must be completed and accompanied by 
a fee of $30 per category. Technicians who were licensed on or before September 
1, 1991 must verify that they have completed the board-approved technician 
training course before September 1, 1996. Failure of a licensed technician to 
complete the Technician Training Course shall be a violation of this section. A 
person shall maintain a technician-apprentice license for a maximum of six 
months out of any 12-month period.
<nl>(i) The technician training course for each category may be obtained from 
the board for a fee of $7.50 per course.
sec.593.22. Technician Examinations and Fees.
(a) An individual must pass the subject area examination for each category of 
structural pest control in which the individual wishes to become licensed. Re-
examination is not necessary if the license is renewed annually by the 
technician.
(b)  Examinations shall be given at dates and at locations to be at the 
discretion of the board. A fee of $30 per examination category shall be paid by 
the applicant.
(c) All other testing procedures shall be governed by sec.593.5(d)(3)-(11), and 
(13)-(14) of this title (relating to Examinations).
(d) Persons who make a passing grade and qualify for a technician license must 
obtain a license within 12 months of the exam date or be retested.
(e) Each technician-apprentice application shall be accompanied by a fee of $18.
(f) Each technician license application shall be accompanied by a fee of $48.
sec.593.23. Continuing Education Requirements for Certified Applicators.
(a) On or after January 1, 1991, the board shall require as a condition to the 
renewal of each certified applicator license granted pursuant to the provisions 
of this section, that the holder thereof certify to the board that he or she has 
completed courses of continuing education approved by the board that cover the 
applicator's category(ies) of certification.
(b) Each certified applicator is required to gain a certain number of continuing 
education points during a three-year recertification period, beginning January 
1, 1990, and for each three-year period thereafter. Applicators who are 
certified and licensed after January 1, 1990, will be permitted to obtain a 
prorated number of points for each year remaining in the existing three-year 
recertification period.
(c) No more than one-half of the total continuing education points required for 
the three-year period may be acquired for credit in any one year, and no courses 
may be repeated for credit during the same recertification period.
(d) The number of continuing education points required each three years is six 
points in general training and three points in each category in which the 
applicator is certified. Applicators who become certified in additional 
categories during their three-year recertification period will be permitted to 
obtain a prorated number of points in those categories for each year remaining 
in the period.
(e) a standing training and evaluation committee is hereby created to evaluate 
continuing education programs, and assign the number of category points for each 
one. No more than one point will be assigned for any hour of net actual 
instruction time. The committee will present the board with criteria to be used 
in evaluating continuing education programs and instructors. These criteria will 
become the subject of board rulemaking. The criteria shall be made available to 
the public upon request. The committee will consider, inter alia, the technical 
information given, the qualifications of the instructor, and the amount of 
actual training time devoted to each program in the process of evaluation. The 
committee will report its recommendation regarding the number of category 
points, if any, to be assigned to each program to the executive director of the 
Structural Pest Control Board. The executive director will then decide whether 
to accept, reject, or modify the committee's recommendation. The executive 
director's decision shall be part of his regular report to the board.
(f)  The, members of the evaluation committee will consist of a representative 
of the head of the Entomology Department at Texas A & M University, a 
representative of the dean of agriculture at Texas Tech University, a 
representative from the commissioner of health, a representative from the pest 
control industry, a representative of a pest control supplier or manufacturer, 
an appointed member of the Structural Pest Control Board, and the executive 
director of the Structural Pest Control Board. The representatives designated 
will be authorized to confer with appropriate specialists for assistance in 
program evaluations.
(g) The last four members designated will be appointed on January 1 of each year 
by the chairman of the board. In the event of a vacancy on the committee, the 
chairman shall appoint a replacement within 30 days.
(h) Any person seeking approval of a training program must submit the 
information required at least 120 days prior to the first day of presentation. 
The executive director may waive this requirement due to special circumstances. 
The training and evaluation committee must evaluate and recommend credits within 
60 days from the date submitted. Each submission shall include:
(1) the course outline;
(2) the names and qualifications of the instructors;
(3) the categories and number of points which are requested;
(4) the means of verifying attendance;
(5) an agreement to maintain attendance records for three years and to submit a 
list of participants to the board within 14 days after completion of the course;
(6) a facsimile of the certificate of completion that will be given to 
attendees; and
(7) additional information requested to assist in the evaluation.
(i) Parts of courses which focus on promotion of products, policies, or 
procedures of a company cannot be included for points. Programs and instructors 
must be evaluated each year or more frequently at the board's discretion. Annual 
renewals shall be submitted to the board 30 days prior to the beginning of the 
next calendar year and shall include all changes to the previous year's 
submission.
(j) Each certified applicator shall keep a certificate of completion for each 
course he or she attends for a period of three years, and submit such records to 
the board on request.
(k) Upon written request to the executive director from any two members of the 
Training and Evaluation Committee, the committee shall reevaluate its approval 
of a course under the provisions of subsection (h) of this section. The date 
submitted shall be considered to be the date the second written request is 
received.
(l) The general category is defined to include the topics included in the 
Structural Pest Control Act, sec.4A(e). Effective January 1, 1993, of the six 
general category points required for recertification, at least one must be in 
federal and state laws, one must be in pesticide safety or environmental 
protection, and one must be in integrated pest management. Credit for these 
topics must be assigned by the Training and Evaluation Committee under the 
provisions of subsection (e) of this section.
(m) The Structural Pest Control Board may enter into a memorandum of agreement 
with a state or nonprofit professional society or association to recognize the 
state's pesticide applicator recertification of the society's professional 
recertification for satisfaction of the requirements of this section for 
commercial and noncommercial applicator recertification only if:
(1) the standards for recertification meet or exceed the standards for the 
three-year recertification period as set out in this section;
(2) the licensed commercial or noncommercial applicator also acquires at least 
two points in the general category during each recertification period; and
(3) the agreement reduces duplication of effort and does not increase the 
recordkeeping burden of the board.
sec.593.24. Criteria and Evaluation of Continuing Education.
(a)  Each continuing education program submitted for approval shall contain the 
following:
(1) a brief statement giving the course objective(s), information to be gained, 
or teaching points;
(2) the procedure to be used in verifying the participant's comprehension of 
subject matter presented. These methods may include, but are not limited to, 
examination and post-activity questionnaires, practical applications, field 
demonstrations, in-class workbooks, or any other recognized educational 
technique that would assure mastery of subject matter;
(3) a copy of handout materials, if any, which will be distributed to 
participants during the course;
(4) inclusive length of time of the course stated in hours, and minutes;
(5) first date of presentation or if unknown, agreement to provide two weeks' 
notice of the first date of presentation to the executive director;
(6) category(ies) and number of points in which continuing education units are 
requested; and
(7)  a detailed course outline which will indicate the scope of the course.
(b) The minimum requirements to qualify as a speaker or course presenter are:
(1) a degree from a recognized institution of higher learning which pertains to 
the course being taught; or
(2) five years' experience as an applicator certified by the Structural Pest 
Control Board with a current license in the specialty to be taught; and
(3) verifiable proof of training and teaching experience within the preceding 
three years; or
(4) a combination of education, work related training, and teaching experience 
which, in the opinion of the board, would be equivalent to two of the three 
requirements as previously stated.
(c) Each continuing education program submitted for approval shall be 
accompanied by the following information on each speaker or course presenter:
(1) speaker name, address, telephone number and company, organization, or 
institution of higher learning affiliation;
(2) a resume which includes, but is not limited to, the following information:
(A) formal education-degrees held and granting institutions;
(B) industry-related technical experience which relates to the subject matter to 
be taught;
(C) industry-related teaching experience which relates to the subject matter to 
be taught;
(D)  address and telephone number of at least three references;
(E)  membership in trade associations and/or professional organizations; and
(F) publications as sole or junior author.
(d) Each continuing education program submitted for approval will be accompanied 
by:
(1) a means or system which verifies that participants attended the training 
program throughout its stated length. These systems may include, but are not 
limited to, sign-in-sign-out rosters, course completion certificates, or the 
system may be incorporated into the means to verify the participant's 
comprehension of a subject matter presented;
(2) a certificate of completion. This document must include at least the 
following information:
(A) certified applicator name and certified applicator's assigned number;
(B) name of sponsor or sponsoring agency, company, or organizations;
(C) number and category of continuing education points awarded;
(D) date and location of training event;
(3) a statement that the sponsor agrees to maintain attendance records for three 
years and that a list of participants will be forwarded to the board within 14 
days of completion of the training course.
(4) a nonrefundable annual fee of $60 for consideration of the course for 
approval.
(e) For purposes of this section, a course is defined as any number of points of 
instruction presented by any one sponsor, company, or organization in any one 
category of license recertification.
(f)  Effective upon its adoption by the board, an evaluation form must be 
completed by each participant and submitted by the course sponsor for each 
participant for whom course credit is claimed.
(g) Video tapes, slides, or other media presentations shall not be approved by 
the board unless accompanied by a qualified speaker and course outline, as 
required by Subsections (a) and (c) of this section.
(h) Personnel of the Texas Structural Pest Control Board are exempt from any fee 
charged for a continuing education program if they are monitoring the program as 
a part of the duties of their employment.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas on September 23, 1991.
TRD-9111744
Benny M. Mathis, Jr.
Executive Director
Structural Pest Control Board
Earliest possible date of adoption: November 1, 1991
For further information, please call: (512) 835-4066
       
22 TAC sec.593.22, sec.593.23
(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 Structural Pest 
Control Board or in the Texas Register office, Room 245, James Earl Rudder 
Building, 1019 Brazos Street, Austin.)
The Structural Pest Control Board proposes the repeal of  s593.22 and 
sec.593.23, concerning continuing education requirements and criteria and 
evaluation of continuing education. The sections are being reproposed under new 
numbers to allow for expanding the technician licensure requirements.
Benny M. Mathis, Jr., executive director, has determined that for the first 
five-year period the repeals are in effect there will be no fiscal implications 
for state or local government as a result of enforcing or administering the 
repeals.
Mr. Mathis also has determined that for each year of the first five years the 
repeals are in effect the public benefit anticipated as a result of enforcing 
the repeals will be that the regulations will be more readable and the 
efficiency of the continuing education system will be increased. There will be 
no effect on small businesses. There is no anticipated economic cost to persons 
who are required to comply with the repeals as proposed.
Comments on the proposal may be submitted to Roger Borgelt, 9101 Burnet Road, 
Suite 201, Austin, Texas 78758.
The repeals are proposed under Texas Civil Statutes, Article 135b-6, which 
provide the Structural Pest Control Board, with the authority to establish 
standards for testing, licensing, and regulating persons engaged in the 
structural pest control business.
sec.593.22. Continuing Education Requirements For Certified Applicators.
sec.593.23. Criteria and Evaluation of Continuing Education.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on September 23, 1991.
TRD-9111745
Benny M. Mathis, Jr.
Executive Director
Structural Pest Control Board
Earliest possible date of adoption: November 1, 1991
For further information, please call: (512) 835-4066
       
TITLE 28. INSURANCE
Part I. Texas Department of Insurance
Chapter 7. Corporate and Financial Regulations
Subchapter A. Examination and Corporate Custodian and Tax
28 TAC sec.7.82
The State Board of Insurance proposes new sec.7.82, concerning corporate and 
financial regulation. Section 7.82 concerns forms and instructions for the 
preparation and filing of tax returns by surplus lines insurance agents for the 
1991 calendar year. The new section provides forms and instructions to 
facilitate compliance with statutory requirements for reporting and payment of 
taxes by surplus lines agents to the State Board of Insurance. The proposed 
section includes adoption by reference of forms and instructions as the new 
section adopts by reference a Form SL-7 and instructions for preparation and 
filing by surplus lines agents of semiannual tax report of insurance placed with 
unauthorized insurers. This proposed rule is virtually the same as the new rule 
sec.7.82 which was adopted by the State Board of Insurance on June 7, 1991.
Phil Ballinger, director of Tax Administration, has determined that for the 
first five-year period the proposed amendment will be in effect, there will be 
no fiscal implications for state or local government as a result of enforcing or 
administering the new section.
Mr. Ballinger also has determined that for each year of the first five years the 
new section is in effect, the public benefit anticipated as a result of 
enforcing the section is efficient administration in the collection of state tax 
revenues. There will be no effect on small businesses. There will be no 
anticipated economic cost to persons required to comply with the section as 
proposed.
Comments on this section may be submitted to Phil Ballinger, Director of Tax 
Administration, Texas Department of Insurance, Mail Code 018-2A, 333 Guadalupe 
Street, P.O. Box 149104, Austin, Texas 78714-9104; (512) 322-4233.
The new section is proposed under the Insurance Code, Article 1.04 and Article 
1.14-2. The Insurance Code, Article 1.04, authorizes the State Board of 
Insurance to determine rules in accordance with the laws of this state. The 
Insurance Code, Article 1.14-2, 12, requires surplus lines agents to collect, 
report, and pay gross premium tax on premium collected by those agents on 
policies of insurance, and Article 1.14-2, 3A, authorizes the State Board of 
Insurance to promulgate rules to enforce the article.
sec.7.82. Preparation of 1991 Tax Returns by Surplus Lines Agents.  The State 
Board of Insurance hereby adopts and incorporates herein by reference forms and 
instructions for the preparation of tax returns by surplus lines insurance 
agents for the 1991 calendar year. These instructions and forms are published by 
the State Board of Insurance and may be obtained from the Tax Administration 
Division of the Texas Department of Insurance, William P. Hobby State Office 
Tower One, Room 808, 333 Guadalupe Street, P.O. Box 149104, Austin, Texas 78714-
9104; (512) 322-4233. The instructions and forms are more particularly 
identified as follows:
(1) a form identified as the 1991 surplus lines agent's semiannual tax report of 
insurance placed with unauthorized insurers (Form SL-7); and
(2) a form identified as the instructions for filing the 1991 surplus lines 
agents' semiannual tax report of insurance placed with unauthorized insurers 
(Form SL-7).
Issued in Austin, Texas, on September 24, 1991.
TRD-9111730
Angelia Johnson
Assistant Chief Clerk
Texas Department of Insurance
Proposed date of adoption: November 1, 1991
For further information, please call: (512) 463-6327
       
Subchapter F. Reinsurance
Credit for Reinsurance
28 TAC sec.7.615
The Texas Department of Insurance proposes to adopt new 28 TAC sec.7.615, 
concerning the accounting of reinsurance agreements by property and casualty 
insurers. The new section is necessary to regulate the accounting of agreements 
represented to be reinsurance when such arrangements, despite their legal form, 
are in substance and effect financing arrangements, which have the principal 
purpose of producing increased surplus for the ceding insurer, typically on a 
temporary basis, but which provide little or no indemnification of insurance 
risks by the reinsurer. The new section prevents a ceding insurer from 
improperly reducing liabilities or establishing assets, resulting in distorted 
financial statements, by using a financing arrangement represented to be a 
reinsurance agreement. The section defines terms commonly used in reinsurance 
accounting and financing arrangements. The section establishes certain general 
provisions which are acceptable in a reinsurance agreement. The section also 
sets forth those contract provisions that are not permitted and will result in 
disallowance of credit for reinsurance.
Stephen S. Durish, associate commissioner, financial, has determined that for 
the first five-year period the new section is in effect there will be no fiscal 
implication for state or local government as a result of enforcing or 
administering the section, and there will be no effect on local employment or 
local economy.
Mr. Durish also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be more effective administrative regulation of the financial 
statement and condition of insurers under the Insurance Code, Articles 1.32 and 
5.75-1. There is no expected cost for small businesses required to comply with 
this section other than incidental mailing costs for correspondence with the 
department. On the basis of cost per hour of labor there is no anticipated 
difference in cost of compliance between small and large business. There is no 
anticipated economic costs to persons who are required to comply with the 
section as proposed.
Comments on the proposal may be submitted to Kevin Brady, Acting Director of the 
Reinsurance Activity, Mail Code 303-2A, Texas Department of Insurance, William 
P. Hobby State Office Building, 333 Guadalupe Street, P.O. Box 149099, Austin, 
Texas 78714-9099.
The new section is proposed under the Insurance Code, Articles 1.32 and 5. 75-1. 
Article 1.32 authorizes the Texas Department of Insurance to promulgate rules 
and regulations which evaluate the financial condition of insurers. Article 
5.75-1 authorizes rules relating to accounting and financial statement 
requirements and the treatment of reinsurance agreements between insurers.
sec.7.615. Regulation of Accounting for Reinsurance Agreements by Property and 
Casualty Insurers.
(a) Purpose.
(1)  The Texas Department of Insurance recognizes that licensed insurers 
routinely enter into reinsurance agreements that yield legitimate relief to the 
ceding insurer from strain to surplus.
(2) The Texas Department of Insurance, however, has become aware that some 
insurers, in the capacity of ceding insurer, have at times entered into 
reinsurance agreements primarily as financing arrangements which have the 
principal purpose of producing increased surplus for the ceding insurer, 
typically on a temporary basis, but which provide little or no indemnification 
of insurance risks by the reinsurer. The purpose of this section is to provide 
for the regulation of the accounting for agreements represented to be, or styled 
as, reinsurance, when such arrangements, despite their legal form, are in 
substance and effect financing arrangements. The terms of such agreements do not 
comply in essence with the requirements of subsection (d) of this section and 
violate one or more of the following:
(A) the Insurance Code, Articles 1.10, 1.32, 6.04, 6.05, 6.11, 6.12, 8.07, 
15.13, 15.15, 16.18, 16.20, 17.11, 17.25, 18.08, 18.12, 19.06, 19.08, 20.02, and 
21.21 relating to the financial condition of insurers, thus resulting in 
distorted financial statements which do not properly reflect the financial 
condition of the ceding insurers;
(B) the Insurance Code, Article 5.75-1, relating to reinsurance reserve credits, 
thus, resulting in a ceding insurer improperly reducing liabilities or 
establishing assets for reinsurance ceded; and
(C) the Insurance Code, Articles 1.32 and 21. 28-A, relating to creating a 
situation that may be hazardous to policyholders of this state.
(b) Scope. This section applies to all insurers writing all forms of insurance 
regulated by the Insurance Code, Chapter 5, including, but not limited to, 
property and casualty insurance, fire insurance, auto insurance, fidelity, 
guaranty and surety bonds, and workers' compensation insurance in this state, 
including all insurers authorized to do the business of insurance in this state 
under the Insurance Code, Chapters 2, 5, 6, 8, 15-19, and 21. The provisions of 
this section shall not apply to ceding insurers domiciled in another state that 
regulates the accounting for reinsurance agreements by property and casualty 
insurers under law, rule, or bulletin substantially similar in substance and 
effect to Texas law and rules. To pursue this exception the ceding insurer shall 
provide, upon request, to the commissioner of insurance evidence of similarity 
in the form of statutes, regulations, and interpretation of the standards 
utilized by the state of domicile. The provisions of this section are 
supplementary to and cumulative of existing statutes and rules of the Texas 
Department of Insurance. In the case of an ambiguity or contradiction between 
any of the provisions in this section and any statute, the provisions of the 
statute controls.
(c) Definitions. The following words and terms, when used in this section, shall 
have the following meanings unless the context clearly indicates otherwise.
(1) Anniversary-The annual recurrence of the date of inception of the 
reinsurance agreement.
(2) Assuming insurer (Reinsurer)-The insurer who, under a reinsurance agreement 
(contract of reinsurance), incurs an obligation to the ceding insurer which is 
contingent upon the incurring of liability of loss by the ceding insurer under 
its contracts of insurance or reinsurance.
(3) Ceding insurer-The insurer or reinsurer which has transferred an insurance 
risk to a reinsurer pursuant to a reinsurance agreement.
(4) Commutation-A transaction which results in the recapture by the ceding 
insurer of risks previously reinsured with an assuming insurer which provides 
payment and complete discharge of all present and future obligations between the 
parties arising from the reinsurance agreement.
(5) Insurance risk-Uncertainty as to the ultimate amount of any claim payments 
(underwriting risk) and the timing of those payments (timing risk).
(6) Insurer-A person or business entity legally organized in and authorized by 
its domiciliary jurisdiction to do the business of insurance.
(7) Obligations-As pertains to reinsurance agreements:
(A) losses and loss adjustment expenses paid by the ceding insurer, but not 
recovered from the assuming insurer;
(B) reserves for losses reported and outstanding;
(C) reserves for losses incurred but not reported;
(D) reserves for loss adjustment expenses related to losses reported and 
outstanding and to losses incurred but not reported;
(E) reserves for unearned premiums; and
(F) any other balances due under the reinsurance agreement.
(8) Reinsurance-A written contract which transfers an insurance risk of loss 
between insurers for a consideration commensurate with the risk transferred and 
indemnifies a ceding insurer against all or part of the loss which the latter 
may sustain under the insurance policy or policies it has issued or assumed.
(d) Accounting and other requirements.
(1) A reinsurance agreement shall disclose the reinsurer's maximum liability for 
assumed obligations under the agreement, if such liability is capped or limited. 
The credit taken by an insurer for reinsurance ceded to an assuming insurer 
under an agreement shall be exclusive of all deductibles and retentions and may 
not exceed the reinsurer's liability for obligations as capped or limited 
actually transferred under the agreement.
(2) Reinsurance agreements shall be in a form which reflects the intent of the 
parties to the agreement and shall not contain language and/or terminology such 
that the intent of the parties is rendered unclear. For purposes of determining 
whether credit for reinsurance will be allowed under an agreement, the ceding 
insurer has the responsibility to satisfactorily explain all provisions of an 
agreement to the Texas Department of Insurance. The Texas Department of 
Insurance may require such explanations to be in writing and include both cash 
flow projections and mathematical models using various interest rate and other 
assumptions. The Texas Department of Insurance may also require the ceding 
insurer to obtain the assuming insurer's verification of such explanation.
(3) Credit for unearned premiums ceded shall not be allowed a ceding insurer 
under reinsurance agreements written on a pro-rata or proportional basis which 
provide for the settlement of premiums as earned or for the automatic recapture 
of premiums as earned. Credit for unearned premiums ceded shall not be allowed a 
ceding insurer under a series of reinsurance agreements written on a pro-rata or 
proportional basis which provide for initial settlement of premiums as written 
and the subsequent retrocession by the original insurer of premiums as earned.
(4) Credit for reinsurance agreements written on an excess or non-proportional 
basis shall not be computed in a manner similar to reinsurance agreements 
written on a pro-rata or proportional basis.
(5) Reinsurance agreements must contain both components of insurance risk 
(underwriting and timing) for credit for reinsurance to be allowed in financial 
statements filed with the Texas Department of Insurance.
(6) A ceding insurer shall not reflect reinsurance recoverable on paid losses 
and loss adjustment expenses which is more than 90 days overdue as an admitted 
asset in financial statements filed with the Texas Department of Insurance.
(7) In addition to the requirements of paragraphs (1)-(6) of this subsection, no 
insurer subject to this section shall, for reinsurance ceded, reduce any 
liability or establish any asset in any financial statement filed with the Texas 
Department of Insurance if the contract, agreement, or circumstances include, in 
substance or effect, any of the following conditions:
(A) the reserve credit taken by the ceding insurer is not in compliance with the 
Insurance Code, or with the rules or regulations, including actuarial 
interpretations or standards, adopted by the State Board of Insurance;
(B) the reserve credit taken by the ceding insurer is greater than the 
underlying reserve of the ceding insurer supporting the policy obligations 
transferred under the contract;
(C) the ceding insurer is required to reimburse the reinsurer for negative 
experience under the contract, except that:
(i) any provision for subsequent adjustment on the basis of actual experience is 
allowable so long as there is full reserving for those adjustable features based 
upon the experience of the agreement until such times as those provisional or 
contingent amounts are subsequently realized and due, pursuant to the terms of 
the agreement; and
(ii) offsetting experience refunds against prior year's losses will not be 
considered a reimbursement to the reinsurer for negative experience; or
(D) the agreement provides for adjustments that allow the assuming insurer's 
gain or loss to be determinable in advance;
(E) the ceding insurer must, at specific points in time, terminate or 
automatically recapture all or part of the reinsurance ceded in a manner which 
deprives the ceding insurer of surplus;
(F) the ceding insurer can be deprived of surplus at the reinsurer's option or 
automatically upon the occurrence of some event, such as the insolvency of the 
ceding insurer; except that termination of the contract for non-payment of 
reinsurance premiums shall not be considered to be such a deprivation of 
surplus;
(G)  the entry of an order of rehabilitation including the appointment of a 
supervisor, conservator, or receiver of the ceding insurer shall constitute 
either an anticipatory breach of any contracts of the ceding insurer; grounds 
for retroactive commutation or retroactive cancellation; or grounds for 
retroactive revocation of any contracts of the ceding insurer. This paragraph is 
not intended to limit the actions of the supervisor, conservator, rehabilitator, 
liquidator, or receiver of the ceding company; or
(H)  any language which allows cancellation regarding obligations reinsured 
prior to the date of termination of the agreement in a manner which deprives the 
ceding insurer of surplus, except that nothing contained herein would preclude a 
subsequent commutation of in-force reinsurance coverage upon terms mutually 
agreeable to the parties to the agreement. This paragraph is not intended to 
limit the actions of the supervisor, conservator, rehabilitator, liquidator, or 
receiver of the ceding company; or,
(I) any language which allows termination of the agreement automatically or at 
the sole option of the reinsurer on less than 60 days prior written notice;
(J) any language that specifies the amounts to be reimbursed to the ceding 
insurer at fixed or determinable future dates, or includes predetermined payment 
schedules, delayed payment clauses, or formulas that, in substance, delay 
reimbursement to the ceding insurer;
(K)  no cash payment is due from the reinsurer throughout the lifetime of the 
contract with all settlements prior to the termination date of the agreement 
made only in a reinsurance account;
(L) the consideration to be paid by the ceding insurer is not reasonable in 
relation to the amount of insurance risk transferred under the agreement; or
(M) the possible payment by the ceding insurer to the reinsurer of amounts from 
sources other than from income reasonably expected from the reinsured policies.
(8) Notwithstanding paragraphs (1)-(7) inclusive, of this subsection, a ceding 
insurer subject to this section may, with the prior written approval of the 
commissioner of the Texas Department of Insurance, reduce its liability or 
establish an asset in an amount as the commissioner may allow. All its financial 
statements thereafter shall, by footnote, identify such reduced liability or 
increased asset established on the financial statement and shall reference the 
commissioner's prior written approval.
(e) Written contracts. No reinsurance contract or amendment to any such contract 
may be used to reduce liability or to establish any asset in any financial 
statement filed with the Texas Department of Insurance, unless the contract or 
amendment thereto has been duly executed by both parties no later than the "as 
of" date of the financial statement.
(f) Existing contracts. Insurers subject to this section may continue to reduce 
liabilities or establish assets in financial statements filed with the State 
Board of Insurance for reinsurance ceded under the types of reinsurance 
contracts described in subsection (a)(2) of this section and in subsection (d) 
of this section, provided:
(1) the reinsurance contracts were executed and in force prior to September 30, 
1991;
(2)  no new business is ceded under the contract after the effective date of 
this section;
(3) the reduction of the liability or the asset established for the reinsurance 
ceded is reduced to zero by December 31, 1993, or such later date approved by 
the commissioner of the Texas Department of Insurance as a result of an 
application made by the ceding insurer within 120 days of the adoption date of 
this section;
(4) the reduction of the liability or the establishment of the asset is 
otherwise permissible under all other applicable provisions of the Insurance 
Code or rules or regulations, including actuarial interpretations or standards, 
adopted by the Texas Department of Insurance; and
(5) the Reinsurance Activity of the Texas Department of Insurance is notified, 
within 90 days following the effective date of this section, of the existence of 
such contracts and all corresponding credit for reinsurance taken in the ceding 
insurer's September 30, 1991 interim financial statement and all subsequent 
financial statements.
(g) Effective date. This section becomes effective September 30, 1991.
(h) Severability. If any provision of this section or the application thereof to 
any person or circumstance is held invalid for any reason, the invalidity shall 
not effect the other provisions of this section which can be given effect 
without the invalid provisions or application. To this end, all provisions of 
this section are declared to be severable.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on September 24, 1991.
TRD-9111755
Angelia Johnson
Assistant Chief Clerk
Texas Department of Insurance
Earliest possible date of adoption: November 1, 1991
For further information, please call: (512) 463-6327
       
Chapter 15. Surplus Lines Insurance
Subchapter A. General Regulation of Surplus Lines Insurance
28 TAC sec.15.24
The Texas Department of Insurance proposes an amendment to 28 TAC sec.15.24, 
concerning premium tax on surplus lines insurance coverage. The amendment 
updates the tax rate from 3.85% to 4.85% to comport with the current Article 1. 
14-2, sec.12(a).
Phil Ballinger, director of Tax Administration, has determined that for the 
first five-year period the proposed amendment will be in effect, there will be 
no fiscal implications for state or local government.
Mr. Ballinger also has determined that for each year of the first five years the 
amendment is in effect, the public benefit anticipated will be more efficient 
administration of state tax revenues. There will be no effect on small 
businesses. There is no anticipated economic cost to persons required to comply 
with the rule since the section is simply conformed to the statute.
Comments on this amendment may be submitted to Phil Ballinger, Director of Tax 
Administration, Texas Department of Insurance, Mail Code 108-2A, 333 Guadalupe 
Street, P.O. Box 149104, Austin, Texas 78714-9104; (512) 322-4233.
The amendment is proposed under the Texas Insurance Code, Articles 1.04 and 1. 
14-2. Article 1.04 authorizes the Texas Department of Insurance to determine 
rules in accordance with the laws of this state. Article 1.14-2, 3A, provides 
that the Texas Department of Insurance may promulgate rules to enforce Article 
1. 14-2, and provides that the Texas Department of Insurance shall monitor the 
activities of surplus lines to the extent necessary to protect the public 
interest.
sec.15.24. Collection of Taxes.
(a) The premium charged for surplus lines insurance coverage is subject to a 
<nl>4.85% <ol>[3.85%] tax of all gross premiums charged for such insurance.
(b) (No change.)
(c) All surplus lines insurance premium taxes shall be computed on the total 
gross premium clue on the policy as of the date that coverage under the policy 
becomes effective, except in respect to the following specific situations:
(1) A policy issued for a term in excess of one year, with a fixed premium being 
payable annually, shall be taxed on the first year's premium at the rate of 
<nl>4.85% <ol> [3.85%] as of the date of policy issuance. The tax on premiums 
payable for subsequent years shall be computed and collected as of the date such 
subsequent premiums become due and payable, which date shall be deemed for 
taxation purposes to be the policy anniversary date.
(2) -(3) (No change.)
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on September 24, 1991.
TRD-9111731
Angelia Johnson
Assistant Chief Clerk
Texas Department of Insurance
Earliest possible date of adoption: November 1, 1991
For further information, please call: (512) 463-6327
       
Part II. Texas Workers' Compensation Commission
Chapter 144. Arbitration
28 TAC sec.sec.144.1-144.16
The Texas Workers' Compensation Commission proposes new  ssec.144.1-144.16, 
comprising Subchapter A of Chapter 144, concerning arbitration. The new sections 
establish procedures for parties seeking to resolve workers' compensation 
disputes by binding arbitration, as an alternative to the benefit contested case 
hearing. Arbitration becomes an alternative under the Texas Workers' 
Compensation Act beginning January 1, 1992.
Proposed sec.144.1 summarizes the duties and authority that an arbitrator will 
have during a proceeding. The section authorizes the arbitrator to set the time 
and date of the arbitration, to require parties to exchange any information 
having to do with the dispute, to keep persons other than the parties and the 
employer out of the arbitration session, to swear persons to give true 
testimony, to hold preliminary conferences as needed, to take judicial notice of 
facts and law, to use his/her own judgment, rather than the rules of evidence, 
to determine if evidence is relevant to the arbitration, and to accept 
agreements of the parties if there is no dispute. The section further states 
that the arbitrator shall have the duty to disclose any conflicts of interest, 
to protect the rights of the parties to arbitration, to keep the proceedings 
secret, to encourage parties to disclose all important facts, to encourage the 
parties to be complete but brief in their presentations, to render a lawful 
award based upon the laws and rules that bind the commission, to arrange for 
necessary interpreters, and to be ethical and professional in his/her conduct of 
the sessions.
Proposed sec.144.2 prohibits the arbitrator from making verbal contacts about 
substantive issues with either party outside the actual proceeding. The section 
does allow written contact to be made so long as a copy is delivered to all 
parties to the arbitration. However, the arbitrator may communicate with parties 
on matters of procedure only. An administrative violation is cited in the 
section.
Proposed sec.144.3 includes a statement of the certification of delivery of 
copies that a party is required to include with any documents mailed to the 
commission or the arbitrator.
Proposed sec.144.4 states that the date of delivery for documents required in an 
arbitration is considered to be the date a party receives the document. However, 
the section includes a "fall back" presumption that a document was received by 
the fifth day after it was mailed.
Proposed sec.144.5 tells a party how an election for arbitration can be made. 
The section states that the parties have to agree after a benefit review 
conference to submit their case to arbitration, instead of the hearings officer, 
within 20 days after the last day of that conference. The section indicates that 
if this is done, a party may also respond in writing to the benefit review 
officer's report, in order to make statements about his/her position on matters 
that couldn't be resolved. The section emphasizes that this election may not be 
taken back once the request for arbitration is filed.
Proposed sec.144.6 defines what the sections refer to as a "statement of 
disputes". Essentially, the section provides that such a "statement" will 
include the benefit review officer's report, any party's response, and any 
additional disputes that the parties agree that the arbitrator should consider. 
The section allows the arbitrator to hear disputes that only one, but not the 
other, party may want considered in the arbitration. To summarize, the parties 
may agree about what the arbitration will cover, or either one may ask the 
arbitrator to consider some additional disputes that weren't included in the 
benefit review conference. The section allows, but doesn't require, the 
arbitrator to consider issues that weren't considered in the benefit review 
conference.
Proposed sec.144.7 tells how the director of the Division of Hearings and Review 
will randomly assign an arbitrator. The section allows each party to have one 
opportunity to reject the chosen arbitrator, so long as the rejection is done 
within three days after the party finds out who the arbitrator will be. A 
rejection must be written, signed, and delivered to the commission and other 
parties. If a rejection is sent in, the next arbitrator at the top of the list 
will be assigned to the proceeding.
Proposed sec.144.8 states that the arbitration will be held within 75 miles of 
the claimant's residence at the time of his/her injury, and requires the 
arbitrator to send a notice to the parties telling them when and where the 
arbitration will take place.
Proposed sec.144.9 tells the ways that an arbitrator may use to speed the 
arbitration along, so long as they are consistent with fairness and 
completeness. According to the section, an arbitrator may accept affidavits or 
summaries of evidence in the place of actual testimony. The section indicates, 
however, that a party may object to this, and the arbitrator can go along with 
the objection if he/she determines that there is good cause for not allowing 
other evidence to be substituted for testimony.
Proposed sec.144.10 requires parties to exchange pertinent documentary evidence 
with each other not later than seven days before the arbitration, if it hasn't 
already been given to the other party, and to file written proposals for solving 
the dispute between the parties. The section requires that these same documents 
and proposals should be filed with the arbitrator. The section sets out an 
administrative penalty that can be assessed against a party who doesn't do what 
this section requires.
Proposed sec.144.11 provides that if parties have agreed to certain facts that 
the arbitrator doesn't need to decide, or have decided to resolve the case or 
certain issues in the case, that they can file written and signed "stipulations" 
about undisputed facts, or can make signed agreements, or can resolve issues by 
settlement. The section refers the reader back to the requirements for 
agreements and settlements that are included in Chapter 147 of this title 
(relating to Agreements, Settlements, and Commutation).
Proposed sec.144.12 tells a party how a request to postpone the arbitration may 
be made. A postponement is called a "continuance", and a party is entitled to 
only one continuance of up to 30 days.
Proposed sec.144.13 describes the administrative penalty that can be assessed is 
a party doesn't attend the arbitration, and has not requested a continuance. The 
section provides that a person can be fined an amount up to $500 unless the 
arbitrator determines that the party has good cause.
Proposed sec.144.14 lists the rights of the parties to an arbitration. These 
states that either party has the right to be represented by someone else, is 
entitled to be present personally at the arbitration and have a full and 
impartial hearings of his/her case, may call witnesses and ask questions of any 
witness who testifies at the arbitration, and to arrange, at his/her own 
expense, for making a record of the case by a stenographer. The section requires 
a stenographic record to be provided to the commission at no charge, and to be 
available to other parties if requested.
Proposed sec.144.15 tells what will happen during an arbitration proceeding, in 
the order that certain steps will be taken. An arbitration will be recorded by 
the arbitrator; certain preliminary introductions will be made, and, after 
certain statements for the record, each party may briefly state his/her position 
about what is in dispute. The section allows the claimant to go first and 
present evidence and witnesses, followed by other parties. After the parties 
finish, the arbitrator may request additional evidence if necessary to proper 
resolution of the case. Each party then can present a closing statement and 
summary of his/her case.
Proposed sec.144.16 requires the arbitrator to make a written award and decision 
no later than seven days after the last day of the arbitration, which is sent to 
the parties by first class mail and included in the claim file. The section 
recites the statutory requirement that the arbitration is binding and final, and 
there is not appeal. However, if there is a clerical error only in the award, an 
arbitrator may correct it within 20 days after the date of the award.
Andrew Thigpen, associate director, Financial Management, has determined that 
for each year of the first five-year period the new sections are in effect, 
there will be fiscal implications for the State as a result of enforcing or 
administering sec.144.7 and sec.144.15, which require the commission to send set 
notices and awards to the parties by certified mail, return receipt requested. 
The commission estimates the costs of administering both rules to be as follows: 
in 1992-$230; in 1993-$458; 1994 -$916; in 1995-$1832; in 1996-$3664.
There are no fiscal implications for local government as a result of enforcing 
or administering the new sections as proposed. There is no anticipated impact on 
employment, locally or statewide, as a result of implementing the new sections.
Mr. Thigpen has also determined that for each of the first five years the new 
sections are in effect the public benefit anticipated as a result of enforcing 
the new sections will be implementation of the arbitration provisions of the 
Texas Workers' Compensation Act, for injuries that occurred on or after January 
1, 1991. There will be no effect on small businesses. There will be anticipated 
economic cost to persons who are required to comply with certain of the new 
sections as proposed. Sections 144.3, 144.4, 144.5, 144.6, and 144.11 require 
parties to deliver documents relating to the arbitration proceeding to the 
commission and to one another by personal delivery, by certified mail, return 
receipt requested, or by telephonic transmission. For those persons electing to 
deliver documents by certified mail, the cost of compliance will be $2.29 per 
letter; for delivery by telephonic transmission, the cost of compliance will be 
approximately $2.00 per page. Section 144.13 requires a party who elects to have 
an arbitration proceeding recorded by a court reporter to provide the commission 
with a copy of the transcription. If such election is made, the cost of 
compliance will be based upon the court reporter's charge, as well as the length 
of the proceeding, and an exact cost projection is therefore undeterminable.
Comments on the proposal may be submitted to Susan M. Kelley, General Counsel, 
Texas Workers' Compensation Commission, 4000 South IH-35, Austin, Texas 78704. 
Comments will be accepted for 30 days after publication of this proposal in the 
Texas Register.
The new sections are proposed under Texas Civil Statutes, Articles 8308-2. 
09(a), which authorize the commission to adopt rules necessary to administer the 
Texas Workers' Compensation Act, and Articles 8308-6.24(c), which mandates 
adoption of rules for arbitration consistent with generally recognized 
arbitration principles and procedures.
sec.144.1. Authority and Duties of Arbitrators.
(a) The arbitrator is authorized but not limited to:
(1) set the time and location of the arbitration proceeding within the 
provisions of the Act, Articles 8308-6.03 and Article 8308-6.24;
(2) compel the parties to exchange all pertinent medical reports and other 
documentary evidence, and proposals for resolving the issues in dispute;
(3) conduct, at his/her discretion, preliminary conferences to identify issues 
to resolve questions concerning evidence and witnesses, and to otherwise 
expedite the arbitration proceeding;
(4) exclude individuals other than the parties and the employer from the 
arbitration proceeding;
(5) administer oaths;
(6) take official notice of the law of Texas and other jurisdictions, Texas city 
and county ordinances, the content of the Texas Register<ol>, the rules of state 
agencies, facts that are judicially cognizable, and generally recognized facts 
within the commission's specialized knowledge;
(7)  determine the relevancy and materiality of the evidence offered, without a 
requirement to conform to legal rules of evidence; and
(8) accept stipulations by the parties on uncontested issues.
(b) The arbitrator has a duty to:
(1) disclose to all parties and the commission any potential conflicts with 
his/her position as arbitrator and other personal or business interests. 
Further, to disclose any circumstances that may affect impartiality, including 
past or present relationships, either personal or business, to any party;
(2) protect the interests of all parties, including the advisement of the 
claimant's rights if not represented;
(3)  maintain the confidentiality of the arbitration proceeding;
(4)  encourage brevity, consistent with completeness, at all stages of the 
arbitration proceeding;
(5) ensure that all relevant evidence has been disclosed to him/her and to all 
parties;
(6) render an award based upon the evidence and consistent with the terms of the 
Workers' Compensation Act, and the rules and policies of the commission;
(7) ensure an electronic recording is made of the proceedings;
(8) arrange for the provision of interpreter services if necessary; and
(9) comply with standards of conduct and ethical principles of his/her 
professional group, those set forth in the Act, commission rules, and the codes 
of professional responsibility promulgated by the arbitrator's professional 
association.
sec.144.2. Ex Parte Communications.
(a) On any substantive matter regarding facts, issues, law, or rules, an 
arbitrator may not communicate with any party outside the arbitration unless the 
communication is:
(1)  in writing; and
(2) a copy is delivered to all parties to the arbitration.
(b) Notwithstanding subsection (a) of this section, any party may communicate 
with the arbitrator concerning any procedural matter.
(c) Failure to comply with this rule is an administrative violation, with a 
sanction to be established by the commission, pursuant to the Texas Workers' 
Compensation Act, Article 8308-10.21.
sec.144.3. Delivery of Copies of Documents.  A party who sends a document 
relating to the arbitration proceeding to the commission or the arbitrator shall 
also deliver copies of the document to all other parties, or their 
representatives or attorneys. Delivery shall be accomplished by presenting in 
person, mailing by certified mail, return receipt requested, or transmitting by 
telephonic transmission. The document sent to the commission or the arbitrator 
shall contain a statement certifying delivery using the following format: "I 
hereby certify that I have on the______day of______________, 19___, delivered a 
copy of the attached document 
to_________________________________by__________________________(state manner of 
delivery)."
sec.144.4. Election to Engage in Arbitration.
(a) Following a benefit review conference where one or more disputed benefit 
issue(s) remain unresolved, the parties may mutually agree to engage in 
arbitration on those issues.
(b) Parties agreeing to engage in arbitration must complete and sign a 
commission-prescribed form, and file it with the Arbitration Section of the 
Division of Hearings not later than the 20th-day after the last day of the 
benefit review conference.
(c) A party may submit a response to the disputes identified as unresolved in 
the benefit review officer's report. The response shall:
(1) be in writing;
(2) describe and explain the party's position on the unresolved dispute or 
disputes;
(3) be sent to the commission no later than 20 days after receiving the benefit 
review officer's report; and
(4) be delivered to all other parties, as provided by sec.144.3 of this title 
(relating to Delivery of Copies of Documents).
(d) The election to engage in arbitration, once filed with the commission, is 
binding and irrevocable, except as provided by sec.144.10 of this title 
(relating to Stipulations, Agreements, and Settlements).
sec.144.5. Statement of Disputes.
(a) Statement of disputes. The statement of disputes is a written description of 
the benefit dispute or disputes to be considered by the arbitrator. A dispute 
not expressly included in the statement of disputes will not be considered by 
the arbitrator.
(b)  Statement of disputes after a benefit review conference. The statement of 
disputes for an arbitration proceeding conducted after a benefit review 
conference includes:
(1) the benefit review officer's report, identifying the disputes remaining 
unresolved at the close of the benefit review conference;
(2) the parties' responses to the benefit review officer's report, if any;
(3) additional disputes by unanimous consent, as provided by subsection (c) of 
this section; and
(4) additional disputes by permission of the arbitrator, as provided by 
subsection (d) of this section, if the arbitrator determines that the party has 
good cause.
(c)  Additional disputes by unanimous consent. Parties may, by unanimous 
consent, submit for inclusion in the statement of disputes one or more disputes 
not identified as unresolved in the benefit review officer's report. Additional 
disputes submitted by consent shall:
(1) be made in writing;
(2) identify the dispute, and explain each party's position on it;
(3) be signed by all parties;
(4)  be sent to the commission no later than 10 days before the arbitration 
proceeding; and
(5) explain why the issue was not raised earlier.
(d) Additional disputes by permission of the arbitrator. At any time before or 
during the arbitration proceeding, a party may request the arbitrator to include 
in the statement of disputes one or more disputes not identified as unresolved 
in the benefit review officer's report. The arbitrator will allow such amendment 
only upon a determination of good cause.
sec.144.6. Assignment of Arbitrator.
(a) The director of the division of hearings will maintain, in random name 
order, lists of qualified arbitrators established by the commission. Not later 
than the 30th-day after an election to engage in arbitration is filed, an 
arbitrator will be assigned from the appropriate list. Each party will be 
notified immediately either personally or by certified mail, return receipt 
requested.
(b) Assignment from the list of arbitrators shall be from the top of the list. 
When the list has been exhausted by assignment of each arbitrator to a case, the 
list will be randomly reordered.
(c) Each party to the arbitration proceeding is entitled to one rejection of an 
assigned arbitrator and must exercise such rejection not later than the third 
day following receipt of notification of an arbitrator's assignment. Once a 
rejection is exercised, the next arbitrator from the top of the list will be 
assigned.
(d) A rejection exercised by a party must be:
(1) in writing;
(2) signed by the party or authorized representative;
(3) personally delivered or sent by certified mail, return receipt requested, or 
telephonic transmission, not later than the third day following receipt of 
notice of an arbitrator's assignment, to the commission with a copy to all 
parties.
sec.144.7. Setting the Arbitration Proceeding.
(a) Following any rejections as set forth in sec.144.6 of this title (relating 
to Assignment of Arbitrator), the arbitrator shall schedule arbitration to be 
held not later than the 30th-day following his/her assignment.
(b) The arbitrator shall notify, in writing, all parties and the employer of the 
time and place scheduled for the arbitration. The notification shall be by 
personal delivery or certified mail, return receipt requested.
(c) Unless the assigned arbitrator determines that good cause exists for the 
selection of a different location, arbitration proceedings may not be conducted 
at a site more than 75 miles from the claimant's residence at the time of 
injury.
sec.144.8. Expediting Procedures.
(a) In addition to the use of affidavits, medical reports, stipulations, and 
agreements, the arbitrator may allow, to the maximum extent possible and with 
due consideration to completeness and fairness, expediting procedures, 
including, but not limited to, the use of;
(1) unsworn witness statements; and
(2) summaries of evidence.
(b) The arbitrator may allow use of expediting procedures unless objected to by 
a party, and the arbitrator determines that there is good cause for sustaining 
the objection.
sec.144.9. Exchange of Evidence and Proposed Resolution.
(a)  Not later than the seventh day preceding the arbitration proceeding, each 
party is required to exchange with the other party, and file with the 
arbitrator:
(1) all pertinent medical reports and other documentary evidence in the party's 
possession not previously exchanged or filed; and
(2)  written proposals for resolving the issues in dispute.
(b) A party failing to comply with this requirement without good cause, as 
determined by the arbitrator, commits a Class D administrative violation, with a 
penalty not to exceed $500.
sec.144.10. Stipulations, Agreements, and Settlements.
(a) At any time before or during the arbitration proceeding, parties may:
(1)  enter into stipulations, defined as a voluntary accord between parties to 
an arbitration regarding any matter relating to the arbitration that does not 
constitute an agreement, as defined by the Workers' Compensation Act, Article 
8308-1.02(3), or a settlement, as defined by the Act, Article 8308-1.02(43);
(2) resolve one or more benefit disputes by agreement; or
(3)  resolve all benefit disputes by settlement.
(b) Stipulations shall be made as follows:
(1) in writing; and
(2) signed by all parties to the stipulation, or their representatives.
(c) Agreements and settlements shall be made as provided by Chapter 147 of this 
title (relating to Agreements, Settlements, Commutation).
sec.144.11. Continuance.
(a) Any request for a continuance by a party must be directed to the Arbitration 
Section of the Division of Hearings, and served personally, by certified mail, 
return receipt requested, or by telephonic transmission, on all other parties.
(b) A continuance may be granted for up to 30 days only upon a determination of 
good cause. Notwithstanding the existence of good cause, not more than one 
continuance will be granted to each party.
sec.144.12. Failure to Attend Arbitration. A party who fails to attend any 
session of the arbitration proceeding after electing arbitration commits a Class 
D administrative violation, with a penalty not to exceed $500, unless the 
arbitrator determines that the party had good cause not to attend.
sec.144.13. Rights of Parties.
(a) Each party to the arbitration proceeding is entitled to be present, to have 
a full, fair, and impartial hearing of all relevant evidence, and to present the 
party's respective position on the issue(s) in dispute.
(b) Parties to the arbitration are entitled to be represented by counsel or 
other representative authorized under and in accordance with the Workers' 
Compensation Act and commission rules.
(c) Each party, and the arbitrator, is permitted to call witnesses who have 
relevant information to testify (under oath if required by the arbitrator or 
requested by a party), and to ask questions of any witnesses called.
(d) A party desiring to have a record made of the arbitration proceeding by 
stenographic means may do so and is responsible for arranging for and the 
expense of making a record by such means. A copy of the stenographic report 
shall be provided to the commission at no charge and may be made available to 
the other parties.
sec.144.14. Usual Order of Proceedings.
(a) The arbitration proceeding will begin with preliminary matters including the 
introduction of copies of the election of arbitration and the assignment of the 
arbitrator, the introduction of all parties and representatives, statements for 
the record of the date, time and place of the proceedings, and a concise 
statement of the disputed issue(s).
(b) An electronic recording of the proceeding will be made by the arbitrator.
(c) The arbitrator will allow, and may assist each party to make a brief opening 
statement setting forth its position on unresolved issues, and the issues with 
respect to which it is prepared to stipulate.
(d) The claimant shall be the first party to present all relevant evidence 
desired in support of the claim including the testimony of witnesses.
(e) Following the claimant's presentation of evidence, the other party to the 
proceeding may present evidence desired to be considered by the arbitrator, 
including the calling of witnesses.
(f) After each party has presented the evidence desired, the arbitrator may call 
for additional evidence that he/she considers necessary for a proper 
understanding and determination of the issues.
(g) Each party may present closing statements as desired, but the record may not 
remain open for written briefs unless requested by the arbitrator.
sec.144.15. Award of the Arbitrator.
(a) Not later than the seventh day after the last day of arbitration, the 
arbitrator shall enter the final award which must:
(1) be in writing;
(2) be signed and dated by the arbitrator; and
(3) include a statement of his/her decision on the contested issues and the 
parties' stipulations on uncontested issues;
(4) be sent to the parties by certified mail, return receipt requested, or 
personal delivery; and
(5) be filed as a part of the permanent claim file.
(b) The award entered is final and binding on all parties. Except as provided by 
the Act, Article 8308-6.28, there is no right of appeal.
(c) The arbitrator's award is a final order of the commission.
(d) For the purposes of correcting a clerical error, an arbitrator retains 
jurisdiction of the award for 20 days after the date of the award.
sec.144.16. Requesting a Copy of the Record.  A party or the employer may 
request a copy of the electronic recording of the arbitration proceeding from 
the commission. The requester shall pay the cost of the duplication, as 
established by the commission.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on September 25, 1991.
TRD-9111784
Susan M. Kelley
General Counsel
Texas Workers' Compensation Commission
Earliest possible date of adoption: November 1, 1991
For further information, please call: (512) 440-3972
       
TITLE 31. NATURAL RESOURCES AND CONSERVATION
Part I. General Land Office
Chapter 17. Hearing Procedures for Administrative Penalties and Removal of 
Unauthorized or Dangerous Structures on State Land
31 TAC sec.17.1-17.50
(Editor's Note: The General Land Office proposes for permanent adoption the new 
sections it adopts on an emergency basis in this issue. The text of the new 
sections is in the Emergency Rules section of this issue.)
The General Land Office proposes new sec.sec.17.1-17.50, concerning notice and 
hearings required by the land commissioner before imposing administrative 
penalties and removing unauthorized or dangerous structures from state land. 
These sections will bring the agency into compliance with the Act of June 11, 
1991, House Bill 478, Chapter 465, 72nd Legislature and (to be codified at Texas 
Natural Resources Code, sec.51.302, and sec.51.3021) relating to the removal of 
certain unauthorized or imminently dangerous structures from state land. An 
emergency adoption is being simultaneously submitted.
Mr. Jim Phillips, general counsel, has determined that for the first five-year 
period the sections are in effect there will be no fiscal implications for state 
or local government as a result of enforcing or administering the sections.
Mr. Phillips also has determined that for each year of the first five years the 
sections are in effect the public benefit anticipated as a result of enforcing 
the sections will be providing due process to owners of unauthorized or 
dangerous structures on state land before a penalty is imposed or removal of the 
structure is ordered by the commissioner. There will be no effect on small 
businesses. The anticipated economic cost to persons who are required to comply 
with the sections as proposed will be those associated with preparing for and 
attending an administrative hearing if the person requests one.
Comments on the proposal may be submitted to Jim Phillips, General Counsel, 
General Land Office, 1700 North Congress Avenue, Austin, Texas 78701.
The new sections are proposed under Act of June 11, 1991, House Bill 478, 
Chapter 465, 72nd Legislature (to be codified at Texas Natural Resources Code, 
sec.51.302 and sec.51.3021) which authorizes the land commissioner to promulgate 
rules necessary and convenient to the administration of hearings under House 
Bill 478.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on September 23, 1991.
TRD-9111725
Garry Mauro
Chairman
General Land Office
Earliest possible date of adoption: November 1, 1991
For further information, please call: (512) 463-5394
       
Part IX. Texas Water Commission
Chapter 293. Water Districts
Conditional Approval
31 TAC sec.293.60
The Texas Water Commission proposes new sec.293.60, concerning conditional 
approval of reimbursements to developers. The new section is proposed in order 
to inform developers that reimbursement by a district for a developer project 
may be conditioned on the actions of the developer or related or affiliated 
entities of the developer in the district applying for approval or in any other 
district in which the developer or related or affiliated entities of the 
developer have been involved.
Section 293.60(a) specifies that the commission may condition reimbursement of 
construction funds to a developer on certain actions of the developer or related 
or affiliated entities. Section 293.60(a)(1) specifies the issues which the 
commission may consider in evaluating the performance of the developer and 
includes the past history of the developer or related or affiliated entities 
with respect to payment of financial obligations to districts, devaluation of 
property values through claiming special exemptions within districts, compliance 
with commission rules and orders, and performance under agreements with 
districts. Section 293.60(a)(2) specifies the conditions on which the commission 
may condition the approval of reimbursement and includes the payment of 
financial obligations, the withdrawal of a claim of a special exemption for 
property valuation, compliance with commission rules and orders, and performance 
under agreements with districts. Section 293.60(b) provides a definition of 
"developer" and sec.293.60(c) provides a definition of related or affiliated 
entities". Section 293.60(d) requires a district to submit information regarding 
the developer or affiliated or related entities upon the request of the 
executive director.
Karen Phillips, chief fiscal officer, has determined that for the first five-
year period the proposed section will be in effect, there will be no direct 
fiscal implications as a result of enforcing or administering the sections. 
There will be no direct effect on state or local government for the first five-
year period the section is in effect.
Ms. Phillips also has determined that for each year of the first five years the 
section as proposed are in effect the public benefit anticipated will not be 
affected as a result of enforcing the section as proposed. There will be no 
effect on small businesses. There are no anticipated economic costs to persons 
who are required to comply with the section as proposed.
Comments on this proposal may be submitted to Alan P. Petrov, Senior Attorney, 
Legal Division, Texas Water Commission, P.0. Box 13087, Austin, Texas 78711-
3087. For further information, please call Mr. Petrov at (512) 463-8069.
The new section is proposed under the Texas Water Code,  ssec.5.013, 5.015, and 
12.081, which provide the Texas Water Commission with the authority to adopt any 
rules necessary to carry out its powers and duties under the Texas Water Code 
and other laws of the state.
sec.293.60. Conditional Approval Based on Performance of a Developer in Other 
District Projects.
(a) The commission, in evaluating an application by a district for approval to 
reimburse construction funds to a developer, may consider the performance of the 
developer or related or affiliated entities in other district projects and may 
condition reimbursement on certain actions of the developer or related or 
affiliated entities.
(1)  Issues which may be considered in evaluating the performance of a developer 
may include the past history of the developer and related or affiliated entities 
with respect to:
(A) payment of financial obligations including taxes, standby fees and other 
user fees to any district;
(B) devaluation of property values by claiming special exemptions within any 
district after the commission's approval of bonds in said district without 
compensating agreements with the district;
(C) compliance with commission rules and orders; and
(D)  performance under agreements with any district including, but not limited 
to, cost sharing and maintenance agreements, street and road construction 
agreements, 30% cost participation agreements, and financial guarantees.
(2) Actions of a developer or related or affiliated entity on which 
reimbursement of construction funds to a developer may be conditioned include:
(A) payment of financial obligations including taxes, standby fees, and other 
user fees to any district to which they are owed;
(B) withdrawal of a claim of special exemption which resulted in the devaluation 
of property in any district after the commission's approval of bonds for said 
district or the execution of compensating agreements for the district;
(C) compliance with commission rules and orders; and
(D) performance under existing agreements with any district including, but not 
limited to, cost sharing and maintenance agreements, street and road 
construction agreements, thirty percent cost participation agreements, and 
financial guarantees.
(b) For the purposes of this section developer" means "developer of property in 
the district" as defined by The Water Code, sec.50.026(d) and its lienholder if 
it is in default.
(c) For the purposes of this section "related or affiliated entities" means any 
entity owned in whole or majority part by the developer but does not include 
development lenders unless they are joint venture partners with the developer in 
such districts.
(d) In response to a written request, the district shall submit to the executive 
director information regarding the developer or related or affiliated entities, 
including, but not limited to, the names of principals, individuals, affiliated 
entities and lienholders to aid the commission's evaluation of the past history 
of the developer.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on September 25, 1991.
TRD-9111776
Jim Haley
Director, Legal Division
Texas Water Commission
Earliest possible date of adoption: November 1, 1991
For further information, please call: (512) 463-8069
       
TITLE 40. SOCIAL SERVICES AND ASSISTANCE
Part I. Texas Department of Human Services
Chapter 29. Purchased Health Services
Subchapter G. Hospital Services
40 TAC sec.29.606
The Texas Department of Human Services (DHS) proposes an amendment to sec.29. 
606, concerning reimbursement methodology for inpatient hospital services, in 
its Purchased Health Services chapter. The purpose of the amendment is to comply 
with the intent of the 72nd Texas Legislature as expressed during the 
appropriations process. The proposal eliminates the 5.5% budgetary reduction 
factor which is applied to inpatient hospital admissions. (The budgetary 
reduction factor is also being eliminated from payments to physicians and other 
providers who are reimbursed on a reasonable charge basis. However, rule 
amendments are not necessary to eliminate the budgetary reduction factor in 
payments to these providers.)
Burton F. Raiford, interim commissioner, has determined that for the first five-
year period the proposed section will be in effect there will be fiscal 
implications for state and local government as a result of enforcing or 
administering the section. The effect on state government for the first five-
year period the section will be in effect is an estimated additional cost of 
$40,673,180 in fiscal year (FY) 1992; $51,573,546 in FY 1993; $52,134,128 in FY 
1994; $52,364,111 in FY 1995; and $52,292,241 in FY 1996. The effect on local 
government for the first five-year period the section will be in effect is an 
estimated increase in revenue of $12,201,954 in fiscal year (FY) 1992; $15,472, 
064 in FY 1993; $15,640,238 in FY 1994; $15,709,233 in FY 1995; and $15,687,672 
in FY 1996.
Mr. Raiford also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be that providers of services to Medicaid recipients will receive a 
higher reimbursement rate, resulting in continued provider enrollment and access 
to care. There will be no effect on small businesses. There is no anticipated 
economic cost to persons who are required to comply with the section as 
proposed.
Questions about the content of this proposal may be directed to Joseph B. 
Branton at (512) 338-6505 in DHS's Purchased Health Services Section. Comments 
on the proposal may be submitted to Nancy Murphy, Policy and Document Support 
Services-237, Texas Department of Human Services E-503, P.O. Box 149030, Austin, 
Texas 78714-9030, within 30 days of publication in the Texas Register.
The amendment is proposed under the Human Resources Code, Title 2, Chapters 22 
and 32, which authorizes the department to administer public and medical 
assistance programs.
sec.29.606. Reimbursement Methodology for Inpatient Hospital Services.
(a) Introduction. Except as otherwise specified in subsection (q) of this 
section, the Texas Medical Assistance Program reimburses hospitals, except in-
state children's hospitals, for covered inpatient hospital services using a 
prospective payment system. In-state children's hospitals are reimbursed for 
covered inpatient hospital services using the methodology described in 
subsection (o) of this section. For hospitals other than in-state children's 
hospitals, the department or its designee groups hospitals into payment 
divisions using the average base year payment per case in each hospital after 
adjusting each hospital's base year payment per case by a case mix index, a 
cost-of-living index, and a budgetary reduction factor of 10%. The budgetary 
reduction factor for admissions occurring in state fiscal year 1990 (September 
1, 1989-August 31, 1990) is 7.0% and the budgetary reduction factor for 
admissions occurring in state fiscal year 1991 (September 1, 1990-August 31, 
1991) is 5.5%. <nl>For admissions occurring in state fiscal year 1992 (September 
1, 1991 through August 31, 1992) and subsequent state fiscal years, a budgetary 
reduction factor is not applied. <ol>The payment divisions are separated into 
$100 increments. If a payment division has less than 10 observations for 
Medicaid data, the department or its designee considers that payment division to 
be statistically invalid. Hospitals within that payment division are placed into 
the nearest valid payment division.
(b) Definitions. The following words and terms, when used in this section, shall 
have the following meanings, unless the context clearly indicates otherwise.
(1)-(3) (No change.)
(4) Standard dollar amount-The weighted mean base year payment for all hospitals 
in a payment division after adjusting each hospital's base year payment per case 
by a case mix index, a cost-of-living index, and a budgetary reduction factor of 
10%. The budgetary reduction factor for admissions occurring in state fiscal 
year 1990 (September 1, 1989-August 31, 1990) is 7.0% and the budgetary 
reduction factor for admissions occurring in state fiscal year 1991 (September 
1, 1990-August 31, 1991) is 5.5%. <nl>For admissions occurring in state fiscal 
year 1992 (September 1, 1991 through August 31, 1992) and subsequent state 
fiscal years, a budgetary reduction factor is not applied. <ol>The department or 
its designee establishes a minimum standard dollar amount of $1,600 and applies 
it to those hospitals whose standard dollar amount is less than the minimum. The 
department or its designee applies cost-of-living indexes to the standard dollar 
amounts established for the base year to calculate standard dollar amounts for 
prospective years. A cost-of-living index is not applied to the minimum standard 
dollar amount.
(5)-(10) (No change.)
(c)-(q) (No change.)
(r) Reimbursement to out-of-state children's hospitals. For admissions on or 
after September 1, 1991, the standard dollar amount for out-of-state children's 
hospitals is calculated as specified in this subsection. The department or its 
designee calculates the overall average cost per discharge for in-state 
children's hospitals based on tentative or final settlement of cost reporting 
periods ending in calendar year 1990. The overall average cost per discharge is 
adjusted for intensity of service by dividing it by the average relative weight 
for all admissions from in-state children's hospitals during state fiscal year 
1990 (September 1, 1989-August 31, 1990). The adjusted cost per discharge is 
updated each year by applying the cost-of-living index described in subsection 
(n) of this section [and the budgetary reduction factor described in subsection 
(b) of this section]. The resulting product is the standard dollar amount to be 
used for payment of claims as described in subsection (e) of this section. The 
department or its designee selects a new cost reporting period and admissions 
period from the in-state children's hospitals at least every three years for the 
purpose of calculating the standard dollar amount for out-of-state children's 
hospitals.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on September 24, 1991.
TRD-9111763
Nancy Murphy
Agency liaison, Policy and Document Support
Texas Department of Human Services
Proposed date of adoption: December 1, 1991
For further information, please call: (512) 450-3765
       
Chapter 48. Community Care for Aged and Disabled
Release Hearings
40 TAC sec.48.4101
The Texas Department of Human Services (DHS) proposes a new undesignated head, 
Release Hearings, and new sec.48.4101, concerning Adult Protective Services 
release hearings, in its Community Care for Aged and Disabled chapter. The 
purpose of the new section is to provide protection for aged and disabled adults 
by permitting the department to notify an employer or other entity of Adult 
Protective Services findings of abuse, neglect, or exploitation, and to provide 
the perpetrator with the right of due process.
Burton F. Raiford, interim commissioner, has determined that for the first five-
year period the proposed section will be in effect there will be no fiscal 
implications for state or local government as a result of enforcing or 
administering the section.
Mr. Raiford also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be protection for aged or disabled clients and protection of the 
perpetrator's right to due process. There will be no effect on small businesses. 
There is no anticipated economic cost to persons who are required to comply with 
the proposed section.
Questions about the content of this proposal may be directed to Lois Clark at 
(512) 450-3183 in DHS's Adult Protective Services Section. Comments on the 
proposal may be submitted to Nancy Murphy, Policy and Document Support-222, 
Texas Department of Human Services E-503, P.O. Box 149030, Austin, Texas 78714-
9030, within 30 days of publication in the Texas Register .
The new section is proposed under the Human Resources Code, Title 2, Chapters 22 
and 48, which authorizes the department to administer public and protective 
services for the aged and disabled.
sec.48.4101. Adult Protective Services Release Hearings.
(a)  Definitions of program terms. The following words and terms, when used in 
this section, shall have the following meanings, unless the context clearly 
indicates otherwise:
(1) Release-The release of data outside the department without the perpetrator's 
consent, except for data released to the perpetrator himself, to the client or 
an individual legally responsible for the client, to a court of law, or to a law 
enforcement agency.
(2) Emergency-Abuse, neglect, or exploitation which, without immediate 
intervention, would result in an aged or disabled adult being in a state of or 
at risk of serious harm.
(b) Right to appeal. When the Texas Department of Human Services (DHS) Adult 
Protective Services (APS) staff validates an allegation of abuse, neglect, or 
exploitation of an aged or disabled adult and an entity such as a provider 
agency, home health agency, senior center or other employer allows the 
perpetrator to have access to aged or disabled adults, the APS caseworker may 
notify the entity of the findings. If the findings are to be released to the 
entity, the perpetrator must be given prior written notification and an 
opportunity to appeal, except in emergencies.
(c) Notification of intent to release.
(1) The caseworker must give written notification of the findings to each person 
designated as a perpetrator if:
(A)  allegations of abuse, neglect, or exploitation by the perpetrator are found 
to be valid;
(B) the findings are to be released outside the department to an entity which 
allows the perpetrator to have access to aged or disabled adults; and
(C) the perpetrator, as a result of the release, may be denied a right or 
privilege, such as employment or benefits.
(2)  Written notification must include:
(A) the findings to be released;
(B) the entity to which the findings will be released;
(C) the perpetrator's right to request a copy of the investigation 
documentation, from which the reporter's name has been removed, and the cost to 
the perpetrator for a copy of the information, if appropriate;
(D) a warning that the request for a copy of the investigation documentation may 
be denied if release of the investigation documentation would jeopardize an 
ongoing criminal investigation, or if the attorney representing the department 
in a lawsuit has determined that the information should be withheld;
(E) DHS's decision that an emergency exists and that the findings have already 
been released, if applicable;
(F) the perpetrator's right to an administrative review and a release hearing to 
appeal the findings, and a warning that the findings will be released without 
the perpetrator's consent if the perpetrator does not request an appeal and the 
findings have not already been released in an emergency; and
(G) the requirement that the perpetrator must request the appeal in writing and 
that the request must be postmarked within 20 days after the official notice is 
mailed by the department.
(d) The perpetrator's role during administrative review.
(1) The perpetrator may:
(A) appear in person at the administrative review and may be accompanied by a 
representative;
(B) submit written material that is relevant to the case; and/or
(C) have a certified interpreter provided by DHS if he does not speak English or 
is deaf, or may provide his own interpreter.
(2) The perpetrator is responsible for any costs he may incur for the review, 
except for interpreter services provided by DHS.
(e)  Notification of decision. If the final outcome of the appeal or any 
subsequent litigation alters or reverses the APS findings, everyone notified of 
the original findings must be notified of the final decision. Notification may 
be in the same form as the original notification.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on September 24, 1991.
TRD-9111764
Nancy Murphy
Agency liaison, Policy and Document Support
Texas Department of Human Services
Proposed date of adoption: December 1, 1991
For further information, please call: (512) 450-3765