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 4. AGRICULTURE Part I. Texas Department of Agriculture Chapter 30. Young Farmers Endowment Program 4 TAC sec.sec.30.1-30.12 The Board of Directors for the Texas Agricultural Finance Authority of the Texas Department of Agriculture proposes new sec.sec.30.1-30.12, concerning procedures for participation in the Texas Agricultural Finance Authority (TAFA) Young Farmer Endowment Program. The new sections provide a general statement of authority and purpose of the program, definitions, general project eligibility requirements, application requirements and procedures for filing of application, general terms and conditions of the authority's financial commitment and criteria for approval of a loan. Robert Kennedy, director of agricultural finance, has determined that for the first five year period the proposed sections are in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the section. It is assumed that the revenue generated by the program from application fees and interest income will be adequate to cover costs of administration of the program. In the event that the revenue generated by the program is not sufficient to cover costs of administration, the effect on state government for the first five year period the section is in effect will be an estimated additional cost of up to $100,000 per year. Mr. Kennedy 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 the potential to generate up to $32 million in new agricultural loans over the next 20 years. There will be no effect on small business. There is no anticipated economic cost to persons who are required to comply with the sections as proposed. Comments on the proposal may be submitted to Robert Kennedy, Director of Agricultural Finance, Texas Department of Agriculture, P. O. Box 12847, Austin, Texas 78711. Comments must be received no later than 30 days from the date of publication of the proposed new sections in the Texas Register . A public hearing will be held to take public comment on the new sections on January 15, 1992, beginning at 10 a.m. in the William B. Travis State Office Building, 1701 North Congress, Austin, Texas 78701, Room 1-111. Individuals wishing to make oral comments at the public hearing should also submit a written statement. Commentors may prefile their remarks with Robert Kennedy by mailing their statement to P.O. Box 12847, Austin, Texas 78711, prior to the date of the hearing or submit their written comments at the hearing. Prefiled written statements must be received by the date of the hearing. The board reserves the right to limit testimony to five minutes per speaker in order to ensure all speakers are heard. The new sections are proposed under the Texas Agriculture Code (the Code), sec.253.004, which provides the Board of Directors of the Texas Agricultural Finance Authority the same authority in administering the Young Farmer Endowment Program as it has in Chapter 58 of the code, which is provided in sec.58.023 of the code as the authority to adopt rules to establish criteria for eligibility of applicants, criteria for lenders; and sec.58.022 which provides the board with the authority to adopt rules and procedures for administration of the loan guaranty program. sec.30.1. Authority. Through the action of the 72nd Texas Legislature in passing House Bill 1826 on May 20, 1991, the Young Farmer Endowment Program was authorized to provide financial assistance to eligible borrowers who are establishing their first farm or ranch operation. sec.30.2. Purpose. The Young Farmer Endowment Program is to provide financial assistance to eligible borrowers who desire to establish their first farm or ranch operation, when the board considers such financial assistance presents a reasonable risk and has a sufficient likelihood of repayment. These rules establish standards of eligibility and application procedures for the program. sec.30.3. Definitions. In addition to the definitions set out in the Texas Agriculture Code, sec.253.001, the following words and terms, when used in this chapter, shall have the following meanings unless the context clearly indicates otherwise. Act-The Young Farmer Endowment Act, Texas Agriculture Code, Chapter 253. Agricultural science teacher-An individual employed by a Texas school district for the purpose of teaching agricultural science and technology. Applicant-An individual making application for financial assistance under the Act and this chapter. County agent-A county extension agent or agricultural program leader employed by the Texas Agricultural Extension Service. Credit review committee-A committee composed of three members of the Texas Agricultural Finance Authority, with two members being appointed by the chairman of the board and one member being the Commissioner of Agriculture or his designee. District-based agricultural economist-A district agricultural economist employed by the Texas Agricultural Extension Service. Eligible borrower -An individual who is at least 18 years of age but younger than 40 years of age and who has four years of practical farm or ranch experience, with not more than two years of participation in a 4-H or similar vocational agriculture program counting as practical farm or ranch experience. The eligible borrower must remain younger than 40 throughout the application cycle for which the applicant has applied; such cycles end in February and August of each year. First farm or ranch operation-An operation: (A) in which the owner/operator provides the management and labor for the operation; (B) where the owner/operator provides or directly arranges for the financing of the operation; and (C) where the owner/operator has not generated more than 15% of his adjusted gross income during each of the past four years from farming or ranching operations, provided that an exception will be allowed from the income limitation for those applicants who provide evidence that during the last four years, their taxable income from farming or ranching provided their education costs. Plan-A complete business plan which includes balance sheets, income statements, cash flow statements and a management plan. Program-The Young Farmer Endowment Program. sec.30.4. Applicant Requirements.
    An applicant may submit an application to the Authority if the applicant meets the following requirements: (1) the applicant must be a United States citizen and a resident of the State of Texas for at least one year; (2) the applicant must provide evidence of the fact that the applicant's farm or ranch operation will be located within the State of Texas; (3) the applicant must provide evidence that the proposed project is his/her first farm or ranch operation; (4) the applicant must provide evidence of a minimum of 20% equity in the first farm or ranch operation. Equity must be in the form of cash or assets unencumbered by debt, mortgage, pledge, or any other security interest; and (5) the applicant must meet the definition of "eligible borrower" as set forth in the Act and this chapter. sec.30.5. Project Costs. (a) Eligible costs. Financing received under this program may be used to finance costs incurred in connection with the first time farm or ranch operation, and shall be limited to the following: (1) purchases of feed, seed, fertilizer, livestock, poultry, farm equipment, farm facilities, or leases of farmland; (2) repayment of loans from lenders who financed the purchase or lease of any of the items listed in paragraph (1) of this subsection; or (3) collateral for a loan used for the purchase or lease of any of the items listed in paragraphs (1) and (2) of this subsection. (b) Ineligible costs. Use of financing received under this program for any costs for the first time farm or ranch operation other than those described in subsection (a) of this section shall be considered ineligible, and such use shall be considered a default on the loan and constitute grounds for demand for full and immediate repayment of the loan. sec.30.6. Filing Requirements and Consideration of Applications. (a) Application forms. An applicant seeking financing must use application forms approved and distributed by the authority and must include all information requested. (b) Staff review. Upon submission of a full and complete application, the staff shall review the application, evaluate the technical and market feasibility of the project, and examine the benefits of the project for the economic growth of Texas agriculture. The staff may request and consider comments of the county agent, agricultural science teacher, or the district-based agricultural economist who reviewed the plan. (c) Credit review committee. The staff shall submit a credit memorandum to the Credit Review Committee for each of the top 50 ranked applications. The Credit Review Committee shall recommend to the board applications sufficient to award available funds. Any application not receiving a unanimous vote of the Credit Review Committee will be recommended to the board for denial. The board will approve or deny applications by majority vote and may impose terms and conditions as part of its approval. (d) Notification of approval. Upon approval by the board, the staff will notify each applicant in writing identifying the terms and conditions of the approval. The staff shall prepare or cause to be prepared all written agreements and documents necessary to close the financing in accordance with the terms and conditions set forth in the notice of approval. (e) Denial of application. The staff will notify each applicant in writing of the denial of an application. Such notice will indicate whether the application will or will not be considered further under the program. No appeal of the board's decision will be allowed if the application will not be considered further. Those applications not included in the 50 submitted to the Credit Review Committee will not be considered further under the program. (f) Providing false information. An applicant who knowingly provides false information in an application shall be disqualified from obtaining a loan under the program and shall be liable to the Authority and the department for any expense incurred by the Authority or the department as a result of the falsity and any approved loan will be considered in default. sec.30.7. Contents of the Application. (a) Required information. The applicant must present information necessary to determine if the applicant is an eligible borrower. Such information will include, at least, the following: (1) the applicant's name and address; (2) a copy of the applicant's birth certificate or drivers license; (3) the applicant's resume'; (4) a completed Personal History Form; (5) two credit references and two unrelated personal references; (6) a 10 year plan covering the period from the date of the application, describing the goals of the project, the means to accomplish the goals, the method of managing and financing the project, a contingency plan, a proposed draw schedule for the financing, and a proposed repayment schedule for the financing; (7) a letter from the county agent, agricultural science teacher, or the district-based agricultural economist stating that plan has been reviewed; (8) letter(s) of commitment from other funding sources, if applicable; (9) if available, four years of historical financial statements including cash flow statements of any previous farming or ranching activity of the applicant; (10) applicant's federal tax returns for the four years immediately preceding the date of the application; and (11) if the financing is to be used to pay other debts or as collateral for a loan, information regarding the use of the proceeds of such financing. (b) Other materials. The applicant may submit any other information which would be useful in the determination of the applicant's eligibility or creditworthiness. sec.30.8. Application Process. (a) Applications will be considered by the board in two cycles during each program year. The first cycle will have an application deadline of the first Monday of October and the second cycle will have an application deadline of the first Monday of April. Applications submitted by the first cycle deadline will be awarded by the first Monday in February and applications submitted by the second cycle deadline will be awarded by the first Monday in August. The board may in its discretion decide to hold an application for consideration during a subsequent cycle, in which event the applicant will be notified pursuant to sec.30.7(e) of this title (relating to Contents of the Appliction). (b) Completed applications, together with all supporting documentation, must be received by the Authority by 3 p.m. on the first Monday of the respective cycle to be considered within that cycle. (c) A non-refundable application fee of $25 will be required with each application. A one percent origination fee will be due on the closing of each loan, with the application fee to be credited to the origination fee. (d) Applications will be analyzed in accordance with the requirements and criteria set forth in the Act and in this Chapter. sec.30.9. General Terms and Conditions of Authority's Financial Commitment. (a) Maximum amount of financial commitment. The Authority shall provide up to $50,000 in financial assistance to an approved applicant, to be disbursed according to the approved draw schedule. (b) Security. Financial commitments approved under this program must be secured by a first lien on collateral of a type and value which, when considered with other criteria, in the judgment of the board affords reasonable assurance of repayment of the loan. (c) Closing of the loan. The closing documents for an approved loan recipient shall be prepared and approved by an attorney. The applicant and the commissioner of agriculture or his designee may attend the verification and signing of such closing documents at the time, date, and location determined by staff. (d) Closing costs. All closing costs associated with the closing of an approved application shall be the liability of the applicant. (e) Draw approval. All requests for draws for the approved financing must be taken with 90 days of the proposed date of draw submitted with the application. Extensions of the 90 day period may be approved by the board by requesting such in writing and upon the receipt of an approval confirmation from the board. (f) Maturity. The maturity of an approved loan must not exceed 15 years unless extended by the board. sec.30.10. Reporting Requirements.
      Each recipient of a loan under this program shall provide bi-annual financial and cash flow statements to the authority. Such statements must be presented in comparison with the budget information contained in the ten year business plan submitted to the Authority with the application. Failure to provide such statements shall be considered a default on the loan and constitute grounds for demand for full and immediate repayment of the loan. sec.30.11. Repayment Schedule.
        The board shall establish a repayment schedule for each approved loan taking into consideration the repayment schedule submitted by the applicant in the application and the reasonableness of the projected financial information. The schedule must require the recipient of the loan to begin payment of the loan not late than the second anniversary date. The recipient of the loan shall fully repay the loan not later than the 15th anniversary date of the loan unless extended by the board. The amortization of the loan will be based upon the total commitment made by the authority over the term of the loan and shall not exceed 15 years unless extended by the board. Failure to make any payment as scheduled shall be considered a default on the loan and constitute grounds for demand for full and immediate repayment of the loan. sec.30.12. Criteria for Approval. In implementing the criteria for approval of a loan, as set out in Texas Agriculture Code, Chapter 253.005, the board may consider: (1) evidence of the manner, means, and security of payment of the loan by the applicant; (2) the reasonableness and completeness of the plan; (3) the projected cash flow of the project; (4) if applicable, commitments from other financial sources for all other funds for the project in excess of the loan; (5) the collateral and other sources of guaranty or insurance securing the loan; (6) the credit history and financial condition of the applicant; (7) historical financial statements of the applicant; (8) the management experience and ability of the applicant; (9) the existence of crop insurance; (10) the potential for job creation; and (11) any other factor or circumstance reasonably related to the goals and objectives of the Act. 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 December 9, 1991. TRD-9115496 Dolores Alvarado Hibbs Chief Administrative Law Judge Texas Department of Agriculture Earliest possible date of adoption: January 17, 1992 For further information, please call: (512) 463-7583 TITLE 16. ECONOMIC REGULATION Part IV. Department of Licensing and Regulation Chapter 66. Registration of Property Tax Consultants 16 TAC sec.66.21 (Editor's Note: The Texas Department of Licensing and Regulation proposes for permanent adoption the new section it adopts on an emergency basis in this issue. The text of the new section is in the Emergency Rules section of this issue.) The Texas Department of Licensing and Regulation proposes new sec.66.21, concerning a special registration period for licensed real estate brokers. The amendment allows a licensed real estate broker who is on active status to register as a property tax consultant prior to March 1, 1992. After that date applicants must meet all requirements of Texas Civil Statutes, Article 8886 prior to registration. James D. Brush, director, Policies and Standards Division, 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. Brush 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 assurance that registered property tax consultants have met requirements of Texas Civil Statutes, Article 8886. The cost of compliance with the section for small and large businesses will be $150 per each real estate broker who registers as a property tax consultant. 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 James D. Brush, Director, Policies and Standards Division, Texas Department of Licensing and Regulation, P. O. Box 12157, Austin, Texas 78735, (512) 463-7352. The new section is proposed under Texas Civil Statutes, Article 8886, which provides the Commissioner of the Texas Department of Licensing and Regulation with the authority to adopt rules to establish standards of practice, conduct, and ethics for registrants. 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 December 9, 1991. TRD-9115435 Larry E. Kosta Executive Director Texas Department of Licensing and Regulation Earliest possible date of adoption: January 17, 1992 For further information, please call: (512) 463-3127 TITLE 25. HEALTH SERVICES Part I. Texas Department of Health Chapter 129. Optician's Registry. 25 TAC sec.sec.129.1-129.5, 129.7-129.13 The Texas Department of Health (department) proposes new ssec.129.1-129.5, 129.7-129.13 concerning the opticians' registry. The sections cover requirements for registration as a registered spectacle dispenser or a registered contact lens dispenser; define terms; set standards and fees for registration; establish procedures for registration, examination, and continuing education; and provide procedures for denial, revocation, or suspension of a registration certificate. The new sections will implement the new Opticians Registry Act, sec.5, which requires the Board of Health to adopt rules to register opticians. Mr. Stephen Seale, Chief Accountant III, has determined that there will be fiscal implications as a result of administering these sections for each of the first five years that the sections will be in effect. The effect on state government will be an estimated additional cost of $151,686 for fiscal year 1992 and $104,435 each year for fiscal years 1993-1996. There will be an estimated increase in revenue equal to the additional cost amounts for those fiscal years which will compensate for the additional costs. There will be no fiscal implications for local governments as a result of enforcing or promulgating these sections. Mr. Seale also has determined that for each year of the first five years the sections as proposed are in effect the public benefit anticipated as a result of enforcing these sections will be that the regulation of dispensing opticians will safeguard public health, safety, and welfare by providing a means by which the public can identify providers of ophthalmic dispensing services and products that meet minimum standards of competence. There will be no fiscal implications for small business. The anticipated economic cost to persons who desire to register under these sections as proposed will be payment of the fees described in these sections. There will be no impact on local employment in the state. Comments on the proposal may be submitted to Becky Berryhill, Program Administrator, Professional Licensing and Certification Division, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756-3183, (512) 459-2955. Comments will be accepted for 30 days following publication of these rules in the Register. The new sections are proposed under the Opticians' Registry Act, (Acts of the 72nd Legislature, (Senate Bill 1123), 1991, sec.5, which provide the Board of Health with the authority to adopt rules to register opticians; the Health and Safety Code, sec.12.001 which provides the Texas Board of Health with the authority to adopt rules for the performance of every duty imposed by law on the Texas Board of Health, the Texas Department of Health, and the commissioner of Health. The sections will affect (Senate Bill 1123), 1991, sec.5. sec.129.1. Purpose and construction. (a) Purpose. This chapter implements the provisions of the Opticians' Registry Act, Acts 1991, 72nd Legislature, Regular Session, Chapter 643 (Senate Bill 1123) concerning the registration and regulation of dispensing opticians by providing a means by which the public can identify providers of ophthalmic dispensing services and products that meet minimum standards of competence. (b) Construction. These sections cover definitions; organization, administration and operation of the Advisory Council; fees; application procedures and requirements; applicant eligibility and registration; examination; renewal of registration certificates; requirements for continuing education; name or address changes; procedures for violations, complaints, investigation of complaints, and disciplinary actions; registration of applicants with criminal backgrounds; and professional and ethical standards. sec.129.2. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Act-The Opticians' Registry Act (Act), Acts 1991, 72nd Legislature, Regular Session, Chapter 643 (Senate Bill 1123). Administrator-The department employee designated as the administrator of registration activities authorized by the Act. Applicant-A person who applies for registration under the Act. Board-The Texas Board of Health. Commissioner-The commissioner of the Texas Department of Health. Consumer-An individual receiving services or obtaining a product from a registered dispensing optician. Contact lens dispensing-The fabrication, ordering, mechanical adjustment, dispensing, sale, and delivery to the consumer of contact lenses prescribed by and dispensed in accordance with a prescription from a licensed physician or optometrist, together with appropriate instructions for the care and handling of the lenses. The term does not include the taking of any measurements of the eye or the cornea or evaluating the physical fit of the contact lenses, unless that action is directed or approved by a licensed physician. Contact lens prescription-A written specification by a licensed physician or optometrist for therapeutic, corrective, or cosmetic contact lenses that states the refractive power of the product and other information as required by: (A) the physician or the Texas State Board of Medical Examiners; or (B) the optometrist or the Texas Optometry Board. Council-The Advisory Council of the Opticians' Registry. Department-The Texas Department of Health. Dispensing optician -A person who provides or offers to provide spectacle or contact lens dispensing services or products to the public. Dual application -An application by one person as both a registered spectacle dispensing optician and a registered contact lens dispenser. Examination-A qualifying test administered to eligible applicants by the department or its designee. Ophthalmic dispenser -A dispensing optician. Registered contact lens dispenser-A person properly registered under the Act as a contact lens dispenser. Registered spectacle dispensing optician-A person properly registered under the Act as a spectacle dispensing optician. Registration certificate -A document issued by the department to a qualified person authorizing that person to represent that he or she is registered under the Act. Spectacle dispensing -The design, verification, fitting, adjustment, sale, and delivery to the consumer of fabricated and finished spectacle lenses, frames, or other ophthalmic devices, other than contact lenses, prescribed by and dispensed in accordance with a prescription from a licensed physician or optometrist. The term includes: (A) prescription analysis and interpretation; (B) the taking of measurements of the face, including interpupillary distances, to determine the size, shape, and specification of the spectacle lenses or frames best suited to the wearer's needs; (C) the preparation and delivery of work orders to laboratory technicians engaged in grinding lenses and fabricating spectacles; (D) the verification of the quality of finished spectacle lenses; (E) the adjustment of spectacle lenses or frames to the intended wearer's face; and (F) the adjustment, repair, replacement, reproduction, or p73 duplication of previously prepared spectacle lenses, frames, or other specially fabricated optical devices, other than contact lenses. Spectacle prescription -A written specification by a licensed physician or optometrist for therapeutic or corrective lenses that states the refractive power of the product and other information as required by the physician or optometrist. sec.129.3. The Council. (a) Purpose. This section sets out the organization, administration, and other general procedures and policies governing the operation of the council. (b) Officers. (1) Chairman. The chairman shall preside at all council meetings at which he or she is in attendance and perform all duties prescribed by this chapter. The chairman may serve as an ex-officio member of any committee. (2) Vice-chairman. The vice-chairman shall perform the duties of the chairman in the absence of the chairman. In case the office of chairman becomes vacant, the vice-chairman will serve as chairman until a successor is elected. (c) Elections. (1) At the meeting held nearest to March 1 of each year, the council shall elect a chairman and a vice-chairman. Nominations shall be from the floor. (2) A vacancy which occurs in the offices of chairman and vice-chairman shall be filled for the duration of the unexpired term at the next council meeting. (3) A council member shall not serve more than two consecutive terms in the office of chairman or vice-chairman. (d) Committees. (1) The council or the chairman, with the council's approval, may establish committees deemed necessary to assist the council in implementing its duties and responsibilities. (2) The chairman may appoint members of the council to serve on committees and may designate the committee chairman. (3) Committees shall meet when called by the committee chairman or when so directed by the council. (4) The committee chairman shall make regular reports to the council by interim written reports or at regular meetings, as necessary. (5) Committees shall direct all reports or other materials to the administrator for distribution. (e) Meetings. Meetings shall be announced and conducted under the provisions of the Open Meetings Act, Texas Civil Statutes, Article 6252-17. (f) Quorum. A quorum of the council necessary to transact official business is five members. (g) Transaction of official business. (1) The council is authorized to transact official business only when in a legally constituted meeting with a quorum present. (2) Council action shall require a majority vote of those members present and voting. (3) Roberts' Rules of Order
          (Latest Edition) shall be the basis of parliamentary decision except where otherwise provided by these rules. (h) Policy against discrimination. The council shall make decisions in the discharge of its statutory authority without discrimination based on any person's race, creed, sex, religion, national origin, geographical distribution, age, physical condition or appearance, economic status, or personal choice. (i) Attendance. (1) The policy of the council is that members shall attend regular and committee meetings. (2) The Texas Department of Health (department) shall report to the Texas Board of Health (board) the attendance records of members. (j) Reimbursement of expenses. (1) A council member is entitled to receive the per diem and transportation allowance for state officials as set in the General Appropriations Act for each day the member engages in the business of the council. (2) Payment to council members of per diem and transportation expenses shall be on official state travel vouchers which have been approved by the department. (3) Attendance at conventions, meetings, and seminars must be clearly related to the performance of council duties and show a benefit to the state. (4) Requests for out-of-state travel for council activities must be approved by the department's Associate Commissioner for Special Health Services and submitted on appropriate forms. (k) Agendas. The administrator shall prepare and submit to each member of the council, prior to each meeting, an agenda which includes items requested by members, items required by law, unfinished business, and other matters of council business which have been approved for discussion by the chairman. (l) Minutes. (1) The draft of the minutes of each meeting shall be forwarded to each council member for review and comments prior to approval by the council. (2) After approval by the council, the minutes of any council meeting are official only when affixed with the original signature of the chairman. (3) The official minutes of the council meetings shall be kept in the administrator's office and shall be available to any person desiring to examine them during regular office hours. (m) Forms. All forms required by this chapter shall be promulgated by the administrator as defined in sec.129.2 of this title (relating to Definitions) and adopted or ratified by the council. sec.129.4. Fees. (a) Schedule of fees. The fees are as follows: (1) application and registration fee-$50; (2) initial dual application and registration fee-$90; (3) registration renewal fee-$30; (4) dual registration renewal fee-$50; (5) late registration fee-a fee that is one and one half times the applicable renewal fee; (6) duplicate certificate fee-$20; and (7) examination fee-the then-current fee assessed by the department's designee for the examination. (b) Payment of fees. If paid by mail, all fees shall be submitted in the form of a certified check for guaranteed funds or a money order made payable to the Texas Department of Health. If submitted in person, cash may be accepted by the department's cashier. (c) Nonrefundable fees. All fees submitted to the department are nonrefundable. sec.129.5. Application Procedures and Requirements for Registration. (a) Purpose. The purpose of this section is to set out the application procedures and registration requirements of applicants for examination and registration. (b) General. (1) Unless otherwise indicated, an applicant must submit all required information and documentation of credentials on official Texas Department of Health (department) forms. (2) Applications may be submitted for registration as a registered contact lens dispenser, a registered spectacle dispenser, or both. (3) The department will not consider an application as officially submitted until the applicant pays the application fee. The fee must accompany the application form. (4) An application not completed within 30 days after the date of the department's notice of deficiency may be voided. (c) Required application materials. (1) The application form shall contain: (A) specific information regarding personal data, social security number, birth month and day, place of employment, preferred mailing address and telephone number, other registrations and licenses held, misdemeanor and felony convictions, educational and training background, and work experience; (B) a statement that the applicant has read the Act and this chapter and agrees to abide by them; (C) a statement that the applicant shall return to the department any registration certificate(s) or identification card(s) upon the expiration, revocation, or suspension of the registration; (D) a statement that the applicant understands that fees submitted in the registration process are nonrefundable unless the processing time is exceeded without good cause as set out in subsection (i) of this section; (E) a statement that the applicant understands that materials submitted in the registration process become the property of the department and are not returnable; (F) a statement that the information in the application is truthful and that the applicant understands that providing false and misleading information on items which are material in determining the applicant's qualifications may result in the voiding of the application, the failure to be granted any registration, or the revocation of any registration issued; (G) the signature of the applicant which has been dated and notarized; and (H) a statement that if issued a registration certificate, the registrant shall keep the department advised of his or her current mailing address. (2) An applicant shall submit a full-face photo of a minimum size of one and one-half inches by one and one-half inches signed on the reverse side p73 with the applicant's signature as it appears on the application. The photograph must have been taken within the two year period prior to application. (3) An applicant shall submit documentation satisfactory to the department, that he or she has completed seven classroom hours. (A) The hours must have been completed within three years prior to the date of the application. (B) The hours must be offered or approved by the American Board of Opticianry or the National Contact Lens Examiners. (C) If applying for dual registration the applicant must have completed fourteen classroom hours offered or approved by the American Board of Opticianry or the National Contact Lens Examiners. (D) Documentation may include a transcript, diploma, certificate or other official or certified document. (4) Proof of having passed the prescribed examination shall be attached to the application form if the applicant has already completed the examination. (d) Application for time-limited waiver. A person who has been actively engaged in spectacle dispensing or contact lens dispensing for a period of three years prior to September 1, 1991, is entitled to a certificate of registration without examination if the person: (1) applies to the department for registration on the department forms not later than August 31, 1992; and (2) pays the registration fee set by the department in sec.129.4 of this title (relating to Fees). (e) Examinations. (1) Purpose. The purpose of this subsection is to establish rules governing the procedures for examination of applicants for registration as a spectacle dispensing optician or contact lens dispenser. (2) Frequency. Examinations will be administered for the department at least once each year by a designee of the department. (3) Requirements. (A) The administrator shall notify an applicant when all requirements for registration have been met except the taking and passing of the required examination. The department shall forward an examination registration form to each approved applicant as soon as the application has been approved. (B) An applicant who wishes to take a scheduled examination must complete the examination registration form which must be received by the department with the required fee at least 15 days prior to the date of the p73 examination. All fees shall be paid to the department if the applicant is taking the examination solely for registration purposes. The fee shall be paid to the designee of the department if the applicant is taking the examination for registration purposes and to obtain private certification. (C) The examination for registration shall be a written examination approved by the department. A designee of the department shall administer and grade examinations and report to the department if the applicant has passed or failed the examination. (D) If an applicant has already successfully completed the required examination, the applicant shall not be required to be reexamined, provided the applicant furnishes the department a copy of the test results indicating that the applicant passed the examination. (E) An applicant who fails two successive examinations may not reapply until the applicant completes all remedial work as prescribed by the department. (f) Determining eligibility. The department shall receive and approve or disapprove all applications for registration as registered dispensing opticians or registered contact lens dispensers or both. The administrator shall be responsible for reviewing all applications. (1) Notices of application approval, disapproval or deficiency shall be in accordance with subsection (g) of this section. (2) An application for a registration shall be disapproved if the applicant has: (A) not met the requirements in this section; (B) failed to pass the examination prescribed by the department as set out in subsection (e) of this section; (C) failed to or refused to properly complete or submit any application form, endorsement, or fee or deliberately presented false information on any form or document required by the department; (D) violated any provision of the Act or this chapter; or (E) been convicted of a felony or misdemeanor as set out in sec.129.12 of this title (relating to Registration of Applicants With Criminal Backgrounds.). (3) If after review, the department determines that the application should not be approved, the administrator shall give the applicant written notice of the reason for the proposed decision and of the opportunity for a formal hearing. The notice shall be in accordance with sec.129.11 of this title (relating to Violations, Complaints, Investigation of Complaints, and Disciplinary Actions). (g) Application processing. (1) Time periods. The department shall comply with the following p73 procedures in processing applications for registration and renewal. (A) The following periods of time shall apply from the date of receipt of an application until the date of issuance of a written notice that the application is complete and accepted for filing or that the application is deficient and additional specific information is required. A written notice stating that the application has been approved may be sent in lieu of the notice of acceptance of a complete application. The time periods are as follows: (i) letter of acceptance of application for registration -20 working days; (ii) letter of application or renewal deficiency-20 working days; and (iii) issuance of registration renewal-10 working days. (B) The following periods of time shall apply from the receipt of the last item necessary to complete the application until the date of issuance of written notice approving or denying the application. The time periods for denial include notification of the proposed decision and of the opportunity, if required, to show compliance with the law and of the opportunity for a formal hearing. An application is not considered complete until the required examination has been successfully completed by the applicant. The time periods are as follows: (i) letter of approval for examination-20 working days; (ii) initial letter of approval for registration-30 days; (iii) letter of denial of registration-30 days; and (iv) issuance of registration renewal-10 working days. (2) Reimbursement of fees. (A) In the event an application is not processed in the time periods stated in this subsection, the applicant has the right to request reimbursement of all fees paid in that particular application process. Application for reimbursement shall be made to the administrator. If the administrator does not agree that the time period has been violated or finds that good cause existed for exceeding the time period, the request will be denied. (B) Good cause for exceeding the time period is considered to exist if the number of applications for registration and registration renewal exceeds by 15% or more the number of applications processed in the same calendar quarter the preceding year; another public or private entity relied upon by the department in the application process caused the delay; or any other condition exists giving the department good cause for exceeding the time period. (3) Appeal. If a request for reimbursement is denied by the administrator, the applicant may appeal to the commissioner of the department for a timely resolution of any dispute arising from a violation of the time periods. The applicant shall give written notice to the commissioner at the address of the department that he or she requests full reimbursement of all fees paid because his or her application was not processed within the applicable time period. The administrator shall submit a written report of the facts related to the processing of the application and of any good cause for exceeding the applicable time period. The commissioner shall provide written notice of the commissioner's decision to the applicant and the administrator. An appeal shall be decided in the applicant's favor if the applicable time period was exceeded and good cause was not established. If the appeal is decided in favor of the applicant, full reimbursement of all fees paid in that particular application process shall be made. (4) Contested cases. The time periods for contested cases related to the denial of registration or registration renewals are not included within the time periods stated in this subsection. The time period for conducting a contested case hearing runs from the date the department receives a written request for a hearing and ends when the decision of the department is final and appealable. A hearing may be completed within one to four months, but may extend for a long period of time depending on the particular circumstances of the hearing. sec.129.7. Issuance of Certificate of Registration. (a) Issuance of certificate. The Texas Department of Health (department) shall issue a certificate of registration and a registration identification card containing a registration number and expiration date to each qualified applicant. (b) Certificate and identification card. Any certificate of registration or identification card issued remains the property of the department and shall be surrendered on demand of the department. (c) Display of certificate. The certificate shall be displayed in a prominent location in the primary office or place of employment of the registrant. A current identification card shall be carried by the registrant. (d) Reproduced or altered certificates/cards. The certificate or identification card shall not be reproduced or altered in any manner. (e) Duplicate replacement certificates. Duplicate replacement certificates will be issued by the department upon written request from a registrant and payment of the appropriate duplicate certificate fee. The request shall include a statement detailing the loss or destruction of the original certificate or identification card or be accompanied by the damaged certificate or card. (f) Individual or dual registration. A certificate of registration shall be issued for a contact lens dispenser or a spectacle dispensing optician. In the event an individual is registered as a contact lens dispenser and a spectacle dispensing optician, he or she shall be issued two certificates. (g) Titles. (1) A registered dispensing optician may refer to himself or herself as a registered dispensing optician, a registered spectacle dispenser, a registered spectacle dispensing optician, or an ophthalmic dispenser. (2) A registered contact lens dispenser may refer to himself or herself as a registered contact lens technician, a registered contact lens dispenser, or an ophthalmic dispenser. (3) A registrant may not use abbreviations or other letters to represent that the person is registered. (h) Expiration of initial registration. The initial registration certificate is valid through the registrant's next birth month. sec.129.8. Renewal of Registration. (a) Purpose. The purpose of this section is to establish the rules governing renewal of registration certificates. (b) General. (1) When issued, a registration certificate is valid through the registrant's next birth month. (2) A registrant must renew the registration certificate annually. (3) Each registrant is responsible for renewing the registration certificate before the expiration date indicated on the face of the certificate and shall not be excused from paying the late registration fee. Failure to receive notification from the department prior to the expiration date of the registration certificate will not excuse failure to apply for renewal or late renewal. (4) The Texas Department of Health (department) will not renew the registration of a registrant who is in violation of the Act or this chapter at the time of application for renewal. (5) The department shall not renew a license if renewal is prohibited by the Education Code, sec.57.491. (6) Notices of renewal approval, disapproval or deficiency shall be in accordance with sec.129.5(i) of this title (relating to Application Procedures). (c) Registration renewal. (1) At least 30 days prior to the expiration date of a person's registration, the department will send notice to the registrant at the address in the department's records of the expiration date of the registration and the total renewal fee, the continuing education report form, and the renewal form. p73 (2) The renewal form for each registrant shall require the provision of the preferred mailing address, primary employment address and telephone number, and a statement of all misdemeanor and felony offenses for which the registrant has been convicted. (3) A registrant has submitted all renewal application materials when the registrant has mailed the renewal form, the required renewal fee and the continuing education report form to the department prior to the expiration date of the registration. The postmark date shall be considered as the date of mailing. (4) The department shall issue to a registrant who has met all requirements for renewal, a renewed registration card and identification card. (d) Late renewal. (1) The department shall inform a person who has not renewed a registration within 30 days following the expiration of the registration of the amount of the late registration fee required for renewal and the date the registration expired. (2) A person whose registration has expired for not more than 180 days may renew the registration by submitting to the department the registration renewal form, the completed continuing education report form, and the late registration fee. The renewal will be accepted and is effective if it is mailed to the department not more than 180 days after the expiration date of registration and is complete. The postmark date shall be considered as the date of mailing. (3) A person whose registration has been expired for more than 180 days may not renew. The person may obtain a new registration by and complying with the then current requirements and procedures for obtaining a registration. (4) If a registrant fails to timely renew his or her registration because the registrant is or was on active duty with the armed forces of the United States of America serving outside the State of Texas, the registrant may renew the registration pursuant to this paragraph. (A) Renewal of the registration may be requested by the registrant, the registrant's spouse, or an individual having power of attorney from the registrant. The renewal form shall include a current address and telephone number for the individual requesting the renewal. (B) Renewal may be requested before or after expiration of the registration. (C) A copy of the official orders or other official military documentation showing that the registrant is or was on active duty serving outside the State of Texas shall be filed with the department along with the renewal form. (D) A copy of the power of attorney from the registrant shall be filed with the department along with the renewal form if the individual having the power of attorney executes any of the documents required in this paragraph. (E) A registrant renewing under this paragraph shall pay the renewal fee, but not the late registration fee. (F) A registrant renewing under this paragraph shall not be required to submit any continuing education hours if continuing education is required to be shown for the renewal. (e) Expiration of registration. (1) A person whose registration has expired may not refer to himself or herself by any of the titles listed in sec.129.7(g) of this title (relating to Issuance of Certificate of Registration). (2) A person who fails to renew a registration is required to surrender the registration certificate and identification card to the department after 180 days from expiration of the registration or upon demand. sec.129.9. Requirements for Continuing Education. (a) Purpose. The purpose of this section is to establish the continuing education requirements a registrant shall meet annually to maintain registration. The requirements are intended to maintain and improve the quality of services provided to the public by registered spectacle dispensing opticians and registered contact lens dispensers. Continuing education credit includes programs beyond the basic preparation which are designed to promote and enrich knowledge, improve skills and develop attitudes for the enhancement of dispensing opticians, thus improving health care to the public. The department assumes dispensing opticians will maintain the high standards of the profession in selecting quality educational programs to fulfill the continuing education requirements. (b) Number of hours required. Proof of having earned seven classroom hours of continuing education credit in each area for which the registrant is renewing, shall be required at the time of renewal for each registration after September 1, 1993. A classroom hour is 50 minutes. (1) The hours must have been completed within 12 months prior to the date of expiration of the registration. (2) For a registered spectacle dispensing optician the hours must be offered or approved by the American Board of Opticianry. For a registered contact lens dispenser the hours must be offered or approved by the National Contact Lens Examiners. (3) If applying for dual registration renewal the applicant must have seven classroom hours offered or approved by the American Board of Opticianry and seven classroom hours offered or approved by the National Contact Lens Examiners. (c) Records. The registrant shall be responsible for maintaining a record of his or her continuing education experiences. The certificates, diplomas or p73 other documentation verifying earning of the continuing education hours are not to be forwarded to the Texas Department of Health (department) at the time of renewal unless the registrant has been selected for audit by the department. Only the completed continuing education report form should accompany the renewal form and fee if the registrant has not been selected for audit. (d) Audit process. (1) The department shall select for audit a random sample of registrants for each renewal month. Audit forms shall be sent to the selected registrants at the time the renewal notice is mailed. (2) All registrants selected for audit will furnish documentation such as official transcripts, certificates, diplomas, receipts, agendas, programs, or an affidavit identifying the continuing education experience satisfactory to the department, to verify proof of having earned the continuing education hours listed on the continuing education report form. The documentation must be provided at the time the renewal form is returned to the department. (3) Failure to timely furnish this information or knowingly providing false information in the audit process or during the renewal process are grounds for suspension or revocation of the registration. sec.129.10. Change of Name or Address. (a) The purpose of this section is to set out the responsibilities and procedures for name and address changes. (b) The registrant shall notify the department of changes in name, preferred mailing address, or place of business or employment within 30 days of such change. (c) Any change shall submitted in writing to the administrator and include the name, old address, and new address. (d) Before any new registration certificate or identification card will be issued by the Texas Department of Health (department), notification of a name change must be forwarded to the administrator and shall include a duly executed affidavit and a copy of a marriage certificate, court decree evidencing such change, or a Social Security card reflecting the new name. The registrant shall return any previously issued registration certificate and identification card and remit the appropriate replacement fee as set out in sec.129.4 of this title (relating to Fees). (e) The registrant shall return any previously issued certificate or identification card and remit the appropriate replacement fee as set out in sec.129.4 of this title (relating to Fees). sec.129.11. Violations, Complaints, Investigation of Complaints, and Disciplinary Actions. (a) Purpose. The purpose of this section is to set out: (1) violations and prohibited actions under the Optician's Registry Act (Act) and this chapter; (2) procedures concerning complaints alleging violations of the Act or this chapter; and (3) Texas Department of Health (department) actions against a person when violations have occurred. (b) Compliance with the Act. A registrant or applicant must comply with the Act and this chapter. (c) Filing of complaints. (1) Any person may complain to the department alleging that a registered dispensing optician or another person has violated the Act or this chapter. (2) A person wishing to file a complaint against a registered dispensing optician or another person shall notify the department. The initial notification of a complaint may be in writing, by telephone, or by personal visit to the administrator's office. The mailing address is Opticians' Registry, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756-3183, telephone (512) 459-2956. (3) Upon receipt of a complaint, the administrator shall send to the complainant an acknowledgment letter and the department's complaint form, which the complainant must complete and return to the administrator before further action can be taken. If the complaint is made by a visit to the administrator's office, the form may be given to the complainant at that time; however, it must be completed and returned to the Texas Department of Health (department) before further action can be taken. (4) Anonymous complaints may be accepted by the department if the complainant provides sufficient information. (d) Investigation of complaints. (1) The department may investigate any complaint. (2) If the administrator determines that the complaint does not come within the department's jurisdiction, the administrator shall advise the complainant and, if possible, refer the complainant to the appropriate governmental agency for handling such a complaint. (3) The department shall, at least as frequently as quarterly, notify the parties to the complaint of the status of the complaint until its final disposition. (4) If the administrator determines that there are insufficient grounds to support the complaint, the program administrator shall dismiss the complaint and give written notice of the dismissal to the registrant or person against whom the complaint has been filed and to the complainant. (5) If the administrator determines that there are sufficient grounds to support the complaint, the administrator may propose to deny, suspend, revoke, probate, or not renew a registration. (e) Disciplinary actions. (1) The department may deny an application or registration renewal or suspend or revoke a registration or impose probation for any violation of the Act or this chapter. (2) Prior to institution of formal proceedings to revoke or suspend a registration, the department shall give written notice to the registrant of the facts or conduct alleged to warrant revocation or suspension, and the registrant shall be given an opportunity, as described in the notice, to show compliance with all requirements of the Act and this chapter. (3) If denial, revocation, suspension, or probation of a registration is proposed, the department shall give written notice to the registrant or applicant that the applicant or registrant must request, in writing, a formal hearing within 10 days of receipt of the notice. The notice shall state the basis for the proposed action. Receipt of the notice is presumed to occur on the tenth day after the notice is mailed to the last address known to the department unless another date is reflected on a United States Postal Service return receipt. (4) If no timely request for a hearing is received, the applicant or registrant is deemed to have waived the hearing and be in agreement with the allegations and proposed action. (5) The formal hearing shall be conducted in accordance with the department's formal hearing procedures in Chapter 1 of this title (relating to the Texas Board of Health) and s129.12 of this title (relating to Registration of Applicants With Criminal Backgrounds), if applicable. (6) If the applicant or registrant fails to appear or be represented at the scheduled hearing, the person is deemed to be in agreement with the allegations and proposed action and to have waived the right to a hearing. (7) If the hearing is waived, the application or registration shall be denied, suspended, revoked or probated by an order of the commissioner of health. (f) Suspension, revocation, or nonrenewal. (1) If the department suspends a registration, the suspension shall remain in effect until the administrator or the department determines that the reason for suspension no longer exists or for the period of time stated in the order. The administrator or the department shall investigate prior to making a determination. (2) During the time of suspension, the suspended registrant shall return his or her registration certificate and identification card to the department. (3) If a suspension overlaps a registration renewal date, the suspended registration holder may comply with the renewal procedures in this chapter; however, the department may not renew the registration until the administrator determines that the reason for suspension no longer exists or the period of suspension is completed. (4) If the department revokes or does not renew a registration, a person may reapply for a registration by complying with the requirements and procedures in this chapter at the time of reapplication. The department may refuse to issue a registration if the reason for revocation or nonrenewal continues to exist. (5) Upon revocation or nonrenewal, a registration holder shall return the registration certificate and identification card to the department. sec.129.12. Registration of Applicants With Criminal Backgrounds. (a) This section sets out the guidelines and criteria on the eligibility of persons with criminal backgrounds to obtain registration as spectacle dispensers or contact lens dispensers. (b) Criminal convictions which directly relate to the occupation of dispensing opticians shall be considered by the department as follows. (1) The department may suspend or revoke an existing registration, disqualify a person from receiving a registration, or deny to a person the opportunity to be examined for a registration because of a person's conviction of a felony or misdemeanor if the crime directly relates to the duties and responsibilities under that registration. (2) In considering whether a criminal conviction directly relates, the department shall consider: (A) the nature and seriousness of the crime; (B) the relationship of the crime to the purposes for requiring a registration as a spectacle dispensing optician or a contact lens dispenser; (C) the extent to which a registration might offer an opportunity to engage in further criminal activity of the same type as that in which the person previously had been involved; and (D) the relationship of the crime to the ability, capacity, or fitness required to perform the duties and discharge the responsibilities of a registered spectacle dispensing optician or a registered contact lens dispenser. (c) The following felonies and misdemeanors directly relate because these criminal offenses indicate an inability or a tendency for the person to be unable to perform or to be unfit for registration: (1) the misdemeanor of violating the Act; (2) a conviction relating to deceptive business practices; (3) a misdemeanor or felony offense involving moral turpitude; (4) the misdemeanor of practicing medicine or optometry without a license; (5) a misdemeanor or felony offense under various titles of the Texas Penal Code: (A) Title 5 concerning offenses against the person; (B) Title 7 concerning offenses against property; (C) Title 9 concerning offenses against public order and decency; (D) Title 10 concerning offenses against public health, safety, and morals; and (E) Title 4 concerning offenses of attempting or conspiring to commit any of the offenses in this subsection; and (6) other misdemeanors and felonies which indicate an inability or tendency for the person to be unable to perform as a registrant or to be unfit for registration if action by the department will promote the intent of the Act, this chapter, and Texas Civil Statutes, Article 6252-13c; (d) Procedures for revoking, suspending, or denying a registration to a person with a criminal background shall be as follows. (1) The administrator shall give written notice to the person that the department proposes to deny the application or suspend or revoke the registration in accordance with the provisions of sec.129.11(e) of this title (relating to Violations, Complaints, Investigations of Complaints, and Disciplinary Actions.). (2) If the department denies, suspends, or revokes an application or registration under this section,the administrator shall give the person written notice: (A) of the reasons for the decision; (B) that the person, after exhausting administrative appeals, may file an action in a district court of Travis County, Texas, for review of the evidence presented to the department and its decision; (C) that the person, must begin the judicial review by filing a petition with the court within 30 days after the department's action is final and appealable; and (D) of the earliest date that the person may appeal. sec.129.13. Professional and Ethical Standards. (a) The purpose of this section is to establish the professional and p73 ethical standards to be followed by a registered spectacle dispensing optician or a registered contact lens dispenser. (b) A registrant shall not misrepresent any professional qualifications or credentials. (c) A registrant shall not provide any information that is false, deceptive, or misleading to the department. (d) A registrant shall provide all information required by the Act or this chapter to be submitted to the department. (e) A registrant shall not consume alcohol or take controlled substances not prescribed by a licensed physician during the hours the registrant is available to dispense spectacles or contact lenses. (f) A registrant shall not use false, misleading or deceptive advertising. 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 December 10, 1991. TRD-9115546 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Proposed date of adoption: February 22, 1992 For further information, please call: (512) 459-2955 Chapter 130. Code Enforcement Registry 25 TAC sec.sec.130. 1-130.17 (Editor's Note: The Texas Department of Health 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 Texas Department of Health (department) proposes new ssec.130.1-130.17, concerning a code enforcement registry. The new sections implement Acts 1991, 72nd Legislature, Chapter 769 (House Bill 1257). House Bill 1257 requires persons using the title "code enforcement officer" to be registered under this law, and the sections define terms commonly used in the profession and set standards for registration as a code enforcement officer. Code enforcement officers must meet the minimum state licensing standards for work experience and will be required to take an approved code enforcement training program. The department will be responsible for the review and processing of the registration of code enforcement officers and code enforcement officers-in-training. Stephen Seale, Chief Accountant III, Budget Office, has determined that for the first five-year period the sections are in effect there will be fiscal implications as a result of enforcing and administering the sections. The effect on state government for the first year will be an estimated additional cost of $32,435 for fiscal year 1992, and $31,935 each year for fiscal years 1993-1996. There will be an estimated increase in revenue equal to the additional cost amounts for those fiscal years which will compensate for the additional costs. The state will need to pay for administrative costs until April 1992, because fees received will not cover these costs until this time. There will be no fiscal implications for local government as a result of enforcing these proposed sections unless the employer elects to pay the fees for its employees. Mr. Seale 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 assure the availability of qualified code enforcement officers within city offices, county offices, and state agency offices. 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 $50 for application and $50 per year for renewal. There will be no impact on local employment. Comments on the proposal may be submitted to Becky Berryhill, Program Administrator, Professional Licensing and Certification Division, 1100 West 49th Street, Austin, Texas, (512) 459-2913. Public comments will be accepted for 30 days after publication of the sections in the Texas Register. The new sections are proposed under Acts 1991, 72nd Legislature, Chapter 796 (House Bill 1257), which provides the Texas Department of Health with authority to adopt rules concerning the registration of code enforcement officers; and Health and Safety Code, s12.001, which provides the Texas Department of Health with the authority to adopt rules for the performance of every duty imposed by law on the Texas Board of Health, the Texas Department of Health and the commissioner of health. 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 December 9, 1991. TRD-9115462 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Proposed date of adoption: March 15, 1992 For further information, please call: (512) 459-2913 Chapter 133. Hospital Licensing Standards 25 TAC sec.133.21 The Texas Department of Health (department) proposes an amendment to sec.133. 21, concerning the department's Hospital Licensing Standards (standards), which sec.133.21 adopts by reference. The amendments to Chapters 1 and 4 of the standards implement the Health and Safety Code, sec.241.026(c)-(e) (House Bill 2004), 72nd Legislature, 1991, relating to the licensing of certain hospitals. The amendment provides for the waiver or modification of certain provisions of the standards to a particular special hospital or particular general or special hospital serving a rural community if the waiver or modification will facilitate the creation or operation of the hospital and if the waiver or modification is in the best interests of the individuals served or to be served by the hospital. The amendment requires hospitals to submit a written request for the waiver or modification to the director and the Hospital Licensing Council (council). After consideration of certain criteria, and upon a recommendation by the director and the council, the commissioner of health may grant or deny the waiver or modification. Stephen Seale, Chief Accountant III, Texas Department of Health, has determined that for the first five-year period the section is in effect there will be fiscal implications as a result of enforcing or administering the section. The fiscal implications for state government in the first five years the section is in effect are estimated to be expenditures in the amount of $17, 500 per year. Once the section is adopted the director and the council will review on a case- by-case basis which waiver or modification requests meet the criteria established by the standards and present recommendations to the commissioner of health for approval. The estimated cost of implementing the section considers staff time for the review of the requests, and for the preparation of and attendance at the council meetings; fiscal concerns due to additional council meetings where the council will review and make recommendations concerning waivers; and preparation for the commissioner's consideration. There will be no fiscal implications for local government. Mr. Seale 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 it will benefit hospitals who are granted waivers or modifications and the communities they serve by allowing hospitals to implement alternative standards which are in the best interests of the individuals served or to be served by the hospitals. There will be no cost to large or small business. There will be no economic cost to persons who are required to comply with the section as proposed. There will be no impact on local employment. Comments on the proposal may be submitted to Maurice B. Shaw, Hospital Licensing Director, Chief, Bureau of Licensing and Certification, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756-3199, (512) 458-7538. Comments will be accepted for 30 days after publication in the Texas Register . Copies of the proposed amendment may be obtained at the Health Facility Licensure and Certification Division, Texas Department of Health. The amendment is proposed under the Health and Safety Code (Code), sec.241.026, which provides the Texas Board of Health with the authority to adopt rules relating to waivers from and modifications of the hospital licensing standards; and sec.12.001, which provides the Texas Board of Health with the authority to adopt rules for the performance of every duty imposed by law on the Texas Board of Health, the Texas Department of Health and the commissioner of health. The amendment affects the Code, sec.241.026. sec.133.21. Adoption by Reference. (a) The Texas Department of Health adopts by reference the rules contained in the department publication effective September 1, 1985, entitled, "Hospital Licensing Standards," as amended through March 1992
            [August 1991]. (b) (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 December 10, 1991. TRD-9115547 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Proposed date of adoption: February 22, 1992 For further information, please call: (512) 458-7538 Chapter 145. Long-Term Care Subchapter K. Grading System for Nursing and Custodial Care Homes 25 TAC sec.sec.145.161-145.174 (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 Texas Department of Health or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas Department of Health (department) proposes to repeal existing sec.sec.145.161-145.174, concerning the grading system for nursing and custodial care homes and proposes new sec.sec.145.161-145.171, concerning the grading system for nursing facilities. The department is proposing to repeal existing sections and adopt new ones in order to revise the criteria for grading facilities and to provide information to the citizens of Texas, so that they will have ready access to information regarding the history of a licensed nursing facility. The proposed new sections will require the department to grade each licensed nursing facility based on the preceding year. Only the licensed nursing facilities that have no deficiencies; no facility mismanagement of resident funds; no IRS liens or known bankruptcy filed; no failure to maintain or provide, upon request by any authorized body, complete financial records; and, in addition, have enhanced programs beyond the minimum requirements of the state and federal regulations, will receive a grade of "A". The licensed nursing facilities that, during the preceding grading period, had no deficiencies; no mismanagement of resident funds; no known bankruptcy or IRS liens filed; and no failure to maintain or provide, upon request by any authorized body, complete financial records; but does not have enhanced programs beyond the minimum requirements of the state and federal regulations, will receive a grade of "B". The licensed nursing facilities that, during the preceding grading period, had deficiencies which did not result in a recommendation for punitive action, will receive a grade of "C". Stephen Seale, Chief Accountant III, budget office, has determined that for the first five-year period the repeals are in effect there will be fiscal implications. The effect on state government will be an estimated cost of $36, 000 the first year to print and mail certificates and publications, office supplies and equipment, salaries for data entry, data processing costs and equipment. There will be an estimated recurring cost of $16,000 for each of the remaining four years. There will be no fiscal implications to local government. Mr. Seale also has determined that for each year of the first five years the repeals are in effect the public benefit anticipated is that facilities, department employees, and the public will more clearly understand which facilities provide quality of care. There is no anticipated cost to small or large business; however, for some facilities there may be an increased cost to achieve a grade of A, this cost can vary by facility. There is no anticipated cost for persons who may be required to comply with the repeals as proposed. There will be no effect on local employment. Comments on the proposal may be submitted to Loretta Smith, Consumer Advocate for Nursing Home Residents, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756-3185, (512) 458-7296. Comments on the proposal will be accepted for 45 days following the publication of this proposal in the Texas Register. In addition, a public hearing will be held to receive public comments on the proposal on January 14, 1992, beginning at 9 a.m. in the Texas Department of Health auditorium, 1100 West 49th Street, Austin. The repeals are proposed under the Health and Safety Code (Code), sec.242.036, which provides the Texas Board of Health with the authority to adopt minimum standards concerning the grading of long-term care facilities; sec.12.001, which provides the Texas Board of Health with the authority to adopt rules for the performance of every duty imposed by law on the Texas Board of Health, the Texas Department of Health, and the commissioner of health. The repeals will affect sec.242.036 of the Code. sec.145.161. Authority and Purpose. sec.145.162. Grade Recognition. sec.145.163. Categories of Facilities To Be Graded. sec.145.164. Grading Certificate. sec.145.165. Inspection or Survey to Establish Grade. sec.145.166. Grading of New Facilities. sec.145.167. Grading of Additions to Facilities. sec.145.168. Change of Ownership. sec.145.169. Facilities Losing Certification or Licensure Status. sec.145.170. Changes in Level of Care or Licensed Category. sec.145.171. Influence of Punitive Actions on Superior Grade. sec.145.172. Duration of Grade. sec.145.173. Administrative Review. sec.145.174. System of Bonus and Demerit Points. 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 December 10, 1991. TRD-9115527 Deputy Commissioner Robert A. MacLean, M.D. Texas Department of Health Proposed date of adoption: March 15, 1992 For further information, please call: (512) 458-7296 25 TAC sec.sec.145.161-145.171 These new sections are proposed under the Health and Safety Code, sec.242.036, which provides the Texas Board of Health with the authority to adopt minimum standards concerning the grading of long-term care facilities; sec.12.001, which provides the Texas Board of Health with the authority to adopt rules for the performance of every duty imposed by law on the Texas Board of Health, the Texas Department of Health, and the commissioner of health. The new sections will affect sec.242.036 of the Code. sec.145.161. Authority and Purpose. The Health and Safety Code, Chapter 242, sec.242.036, authorizes the Texas Department of Health (department) to adopt, publish, and enforce minimum standards relating to the grading of nursing facilities. sec.145.162. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings unless the context clearly indicates otherwise. Deficiencies-Observed problems of sufficient severity and/or frequency so as to identify the facility as responsible, and require some form of corrective action by the facility. Department-The Texas Department of Health. Facility-An institution or establishment that provides organized and structured nursing care and services, and is subject to licensure as a nursing home under the Health and Safety Code, Chapter 242. Facility is also referred to as nursing home or nursing facility. Depending on context, these terms are used to represent the management, administrator, or other persons or groups involved in the provision of care of the residents; or to represent the physical building, which may consist of one or more floors or one or more units. Grade of "A" -The highest quality of care set forth in s145.165(a) of this title (relating to Categories of Grading). Grade of "B" -No violations of state or federal laws, rules or regulations.
              Grade of "C"-Deficiencies were found, but did not result in recommendation for punitive action. Grade of "N" -A new facility on the published list that has not been in operation for 12 months and has no recommendations for punitive action. Grade of "D" -A facility on the published list that was given a grade of A, B, C, or N and that grade was withdrawn by the department due to recommended punitive action. Grade of "W" -A facility on the published list that had a grade of A or B that was withdrawn due to deficiencies found by the department. Grading certificate -The document given to licensed nursing facilities by the department for grades A, B, or C. Punitive actions -Actions (penalties) described as follows: (A) 23-day terminations; (B) 90-day terminations; (C) revocation or denial of license; (D) remedies assessed by the Texas Department of Human Services (TDHS); (E) administrative penalties; (F) denial of certification; or (G) administrative vendor hold by the TDHS. Quality of care -The necessary care and services each resident must receive and the facility must provide to attain or maintain the highest practicable physical, mental, and psychosocial well-being. Shall-The word to signify a mandatory provision. sec.145.163. Facilities To Be Graded. All nursing facilities that are licensed in the State of Texas shall be graded. The department shall issue a certificate to those facilities that are given a grade of A, B, or C. sec.145.164. History of Compliance. The department shall grade a nursing facility based on the findings of the year preceding the grading inspection relating to: (1) the health, safety, welfare, or rights of its residents; (2) resident funds; (3) the confidentiality of a resident's records; (4) the financial practices of the institution; and (5) the control of medication in the institution. sec.145.165. Categories of Grading. (a) Grade A facilities. Only licensed nursing facilities providing the highest quality of care will be given a certificate with the grade of A. This facility is one which, during the preceding grading period, had: (1) no known deficiencies; (2) no facility mismanagement of resident funds; (3) no IRS liens; (4) no known bankruptcy filed; (5) no failure to maintain or provide, upon request by any authorized body, complete financial records; and (6) in addition, had exemplary programs beyond the minimum requirements of the state or federal laws, rules, and regulations. Such exemplary programs shall be evident, ongoing, and include, but not limited to, any one of the following. (A) The facility has developed an exemplary program designed to reduce or eliminate the use of physical and chemical restraints. (B) The facility has developed and implemented a positive and innovative activity/psychosocial program which provides the residents an opportunity to function at their highest level. (C) The facility has developed a mutually beneficial relationship between the community and the residents of the facility. (D) The facility has developed and implemented a comprehensive program resulting in the highest recognition and respect for resident rights. (E) The facility has developed and implemented a continuing education program beyond the minimum requirements for all staff. (b) Grade B facilities. Only licensed nursing facilities that, during the preceding grading period, satisfied subsection (a)(1)-(5) of this section, will be given a certificate with a grade of B. (c) Grade C facilities. Only licensed nursing facilities that, during the preceding grading period, had deficiencies which did not result in recommendations for punitive action, will be given a certificate with a grade of C. sec.145.166. Grading of Facilities. (a) A facility is graded annually for the findings of the preceding year at the time of license renewal and/or recertification. Any deficiency written or recommended punitive action that occurred as part of the survey process or identified during a complaint or incident investigation shall be considered part of the preceding year. (b) A new facility is not eligible for a grade for the first 12 months of operation. (c) The grade will remain in effect until the next inspection for license renewal and/or recertification unless the grade has been canceled, at which time the procedures as set out in s145.169 of this title (relating to Cancellation of the Grade) goes into effect. (d) The grade given by the Texas Department of Health (department) is final. (e) The department will notify the nursing facility of a grade when given. sec.145.167. Displaying the Grade. A facility that receives a grade category A, B, or C shall display the grading certificate in a prominent location for public and resident view, adjacent to the license certificate. sec.145.168. Advertising the Grade. (a) The facility may advertise that it has achieved a grade and may continue to advertise as long as the grade is in effect. (b) Such advertising must include a statement in the advertisement stating: "This grade is based upon performance starting on the date and ending with the date that appears on the certificate. For current information, call the Texas Department of Health Consumer Advocate for Nursing Home Residents, telephone number 1-800-252-8016." (c) The grade is the property of the licensing agency, not that of the facility. (d) When a facility violates the requirements of this section, the department will withdraw the grade and will publish the notification of withdrawal. (e) Advertising a grade that was not awarded by the department will be reported to the Office of the Attorney General for investigation for deceptive trade practice. sec.145.169. Cancellation of the Grade. (a) The department shall cancel a grade when the facility fails to satisfy the requirements for that grade as outlined in sec.145.166 of this title (relating to Grading of Facilities). (b) When a grade is canceled, the facility shall remove the certificate of grade from display and advertising, and it shall be surrendered to the licensing agency, post marked within 10 calendar days of the date of the notification letter from the department. (c) Failure to comply with this section will result in not receiving a grade during the next grading period. sec.145.170. Publication of the Grading. (a) The department will publish, distribute, and make available to the media, at least quarterly, a list of all graded facilities and their designated grade. (b) The publication will include the current grade and the two preceding grades, if appropriate. (c) New facilities have no previous grade during the first year of operation, and will appear on the published list as "N", indicating that there were no recommendations for punitive action. (d) For a facility which was given a grade of A, B, C, or N, and had that grade withdrawn by the department due to recommended punitive action, will appear on the published list as a "D". (e) For a facility which was given a grade of A or B and had that grade withdrawn due to deficiencies found by the department, will appear on the published list as a "W". sec.145.171. Change of Ownership. A change of ownership shall not affect the facility's grade. On change of ownership of a facility operation, the grade existing at the time of change of ownership remains in effect, unless withdrawn by the Texas Department of Health. 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 December 10, 1991. TRD-9115528 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Proposed date of adoption: March 15, 1992 For further information, please call: (512) 458-7296 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part I. General Land Office Chapter 25. Beach Cleaning and Maintenance Assistance Program 31 TAC sec.sec.25.1-25.22 The General Land Office proposes new sec.sec.25.1-25.22, concerning the Beach Cleaning and Maintenance Assistance Program. The new chapter as proposed will bring the agency into compliance with the Act of May 8, 1991, Chapter 114, 1991 Texas Session Law Service. Law Service 691 (Vernon), relating to the transfer of administration of beach cleaning funds from the Texas Parks and Wildlife Department to the Texas General Land Office. Chapter 25 replaces Texas Parks and Wildlife rules sec.sec.61.41-61.67, relating to the beach cleaning and maintenance assistance program which is being administratively repealed in this issue. Mr. John Hamilton, director of the Environmental Outreach Program, has determined that for the first five-year period the sections are in effect there will be fiscal implications as a result of enforcing or administering the new sections. The effect on state government for the first five-year period the new chapter will be in effect will be an estimated reduction in cost of $1,515. There will be no effect on local government. Mr. Hamilton 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 the assistance to local governments bordering on the Gulf of Mexico for expenses incurred in cleaning and maintaining the public beaches in the community. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the sections as proposed. Comments on the proposal may be submitted to Maria Elena Ramon, General Land Office, Legal Services Division, 1700 North Congress Avenue, Austin, Texas 78701. The new sections are proposed under the Act of May 8, 1991, Chapter 114, 1991 Texas Session Law Service 691 (Vernon), which authorizes the land commissioner to promulgate rules reasonably necessary to perform the duties imposed by the Act. sec.25.1. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Agency-The General Land Office of the State of Texas. Applicant-The city or county which makes application to receive funds under this program. Assistance-State funds which are made available through the agency for this program. Award-An obligation of appropriated funds authorized for this program and which are made available for a project. Clean and maintain -The collection and removal of litter and debris, and the supervision and elimination of sanitary and safety conditions which would pose a threat to personal health or safety if not removed or otherwise corrected. The phrase "clean and maintain" includes the employment of lifeguards, beach patrols, and litter patrols. Expenditures-Outlays by cash or check represented by valid invoice and disbursement documentation. Participant or sponsor-The city or county which receives assistance under this program. Public beach-Any beach area, whether publicly or privately owned, extending inland from the line of mean low tide to the line of vegetation bordering on the Gulf of Mexico to which the public has acquired the right of use or easement to or over such area by prescription, dedication, presumption, estoppel, or has retained a right by virtue of continuous right in the public since time immemorial, as recognized by law and custom. This definition does not include a beach which is not accessible by public road or ferry. Qualified official -The individual authorized to represent the applicant or participant in all contractual agreements. State fiscal year-The period of time beginning September 1 and ending August 31. sec.25.2. General. (a) This program provides state financial assistance to qualified city and county governments for the purpose of cleaning and maintaining public beaches. (b) The availability of funds for this program is contingent upon appropriations by the legislature. sec.25.3. Administration of Funds. The agency is designated as the administering agency for funding of this program, and is empowered to enforce these rules and to distribute in a fair and impartial manner the "state share" of funds to cities and counties in accordance with Texas Natural Resource Code, Chapter 61, Subchapter B, this chapter, and procedures and accounting methods adopted by the agency. sec.25.4. Notification of Available Funds. (a) The agency shall use the following formula for calculating the amount of funds available to each city and county for the fiscal year: the proportionate share of total participant expenditures during the 11 quarters prior to June 1 of the fiscal year preceding the year participant is applying for reimbursement times the amount appropriated by the legislature for the fiscal year. (b) All cities and counties which qualify for state funds and has submitted timely applications as required by sec.25.6 of this title (relating to Application for Funds Assistance) will be notified of the amount of state funds available to the city or county 30 days after the application deadline designated by the agency pursuant to sec.25.6. sec.25.5. Beach Cleaning Responsibility. (a) The responsibility for inspection by the agency is vested in the designated agency field office in the area. (b) The designated field office will conduct routine inspection of the area under its authority. (c) The designated field office will furnish a report of inspection activities and any public comment received by the field office concerning beach maintenance. This report will be a general summary as to the method, quality, frequency, and acceptability to which the public beaches are being cleaned and maintained by the participant. Problem areas, repeat discrepancies, and safety hazards will be given special emphasis. sec.25.6. Application for Funds Assistance. (a) Any city or county which borders on the seaward shoreline of the Gulf of Mexico may apply for state assistance for beach cleaning and maintenance on an application form approved and supplied by the agency. (b) Each state fiscal year the agency will announce by mail to all qualified cities and counties an application period not less than 30 days in length during which applications may be filed. (c) Applications received after the announced application period will be considered invalid. (d) The agency reserves the right, in its sole discretion, to waive any defect in the application process. sec.25.7. Requirements for Eligibility-City. Any city applying for state financial assistance under the Natural Resources Code, sec.sec.61.068-61. 070 must meet the following requirements: (1) be an incorporated city, town, or village which borders upon the Gulf of Mexico; (2) have within its boundaries public beaches as defined in sec.25.1 of this title (relating to Definitions). (3) provide for the administration of the public beaches of such city by a beach park board of trustees or other administrative body, which administrative body must have adequate authority to administer an effective program for keeping the public beaches within its jurisdiction clean; (4) provide for the receipt by the city treasurer, or other officer exercising similar functions if there is no city treasurer, of all funds paid to such city under this program; (5) charge no entrance fee to public beaches under the jurisdiction of the governing body of such city except the assessment of a reasonable fee for off- beach parking or for the use of facilities provided for the use and convenience of the public; (6) provide for the establishment, maintenance, and administration of at least one beach park by such city which shall meet the following minimum requirements of size and facilities: (A) be of sufficient size to accommodate public use and enjoyment of that section of public beach; (B) have adequate sanitation facilities to accommodate the average heavy use period of the park; (C) have adequate off-beach parking to accommodate the number of visitors which could utilize the park during the average heavy-use day while using that section of the beach which the park is intended to serve; and (D) have adequate access to such park from the nearest main arterial highway; (7) have not less than $20,000 budgeted for the purpose of cleaning and maintaining public beaches within its jurisdiction for the state fiscal year for which state assistance is sought; and (8) have budgeted for the purpose of cleaning and maintaining public beaches within its jurisdiction for the state fiscal year for which state assistance is sought not less than the total funds expended by such city for the purpose of cleaning public beaches within its jurisdiction during the state fiscal year ending August 31, 1969. sec.25.8. Requirements for Eligibility-County. Any county applying for state financial assistance under the Natural Resources Code, sec.sec.61. 068-61.070 must meet the following requirements: (1) border upon the Gulf of Mexico; (2) have within its boundaries public beaches as defined in sec.25.1 of this title (relating to Definitions); (3) provide for the administration of the public beaches of such county by a beach park board of trustees, a county park board, the commissioners court, or other administrative body, which administrative body must have adequate authority to administer an effective program for keeping the public beaches within its jurisdiction clean; (4) provide for the receipt by the county treasurer, or other officer exercising similar functions if there is no county treasurer, of all funds paid to such county under this program; (5) charge no entrance fee to public beaches under the jurisdiction of the governing body of such county except the assessment of a reasonable fee for off- beach parking or for the use of facilities provided for the use and convenience of the public; (6) provide for the establishment, maintenance, and administration of at least one beach park by such county which shall meet the following requirements of size and facilities: (A) be of sufficient size to accommodate public use and enjoyment of that section of public beach; (B) have adequate sanitation facilities to accommodate the average heavy use period of the park; (C) have adequate off-beach parking to accommodate the number of visitors which could utilize the park during the average heavy-use day while using that section of the beach which the park is intended to serve; and (D) have adequate access to such park from the nearest main arterial highway; (7) have not less than $20,000 budgeted for the purpose of cleaning and maintaining public beaches within its jurisdiction for the state fiscal year for which state assistance is sought; (8) have budgeted for the purpose of cleaning and maintaining public beaches within its jurisdiction for the state fiscal year for which state assistance is sought not less than the total funds expended by such county for the purpose of cleaning public beaches within its jurisdiction during the state fiscal year ending August 31, 1969. sec.25.9. Assistance for Ineligible City. Any incorporated city bordering upon the Gulf of Mexico which is not entitled to receive funds under the Natural Resources Code, sec.sec.61.068-61.070 may receive state assistance if the following requirements are met: (1) the city borders upon the Gulf of Mexico; (2) public beach cleaning is undertaken by contract with the commissioners court of the county in which the city is located; (3) no entrance fee is charged to any public beaches under the jurisdiction of the city except the assessment of a reasonable fee for off-beach parking or the use of facilities provided for the use and convenience of the public; and (4) costs incurred are limited to cleaning those beaches within the corporate limits of the city. sec.25.10. Assistance for Ineligible County. Any county which is not entitled to receive funds under the Natural Resources Code, sec.sec.61.068-61. 070 may receive state assistance if the following requirements are met: (1) the county borders upon the Gulf of Mexico; (2) public beach cleaning is undertaken by contract with the commissioners court of any adjacent county which does qualify for eligibility under the Natural Resources Code sec.sec.61.068-61.070; and (3) no entrance fee is charged to any public beaches under the jurisdiction of the county except for the assessment of a reasonable fee for off-beach parking or for the use of facilities provided for the use and convenience of the public. sec.25.11. Project Agreement. (a) Upon approval of a project application, the agency will initiate a project agreement with the project sponsor to render beach cleaning services as described in the application and project agreement. (b) Execution of the project agreement by the project sponsor and the agency, constitutes approval of the beach cleaning proposal; upon approval, eligible costs incurred during the fiscal year shall be reimbursable to the extent allowed by sec.25.13 of this title (relating to Extent of State Assistance). (c) Amendments to the proposed project agreement may be requested by letter setting forth: (1) proposed change in project scope; (2) proposed effective date of change; (3) increase or decrease in necessary funds; and (4) reason for proposed change in the project. (d) The agency may approve or deny all proposed amendments to the project agreement. (e) All amendments must be approved by the agency and reduced to writing before the project sponsor deviates from the scope of an approved project. sec.25.12. Eligible Costs. (a) To be eligible for state reimbursement: (1) all costs incurred must be as a result of beach cleaning activities only on public beaches as defined in sec.25.1 of this title (relating to Definitions); (2) all costs must be documented as required by sec.25.19 of this title (relating to Maintenance of Records); and (3) cities and counties must have approved applications in force. (b) State laws and policies prohibit the state from participating in the purchase of equipment not assigned to a state agency. The agency will recognize as eligible for costs only equipment rental during the period of an approved project and only when such equipment is actually used for beach cleaning activities. Rental rates may be based on actual rental costs of the participant's approved rental rates for the equipment if it is owned by the applicant. Necessary expendable items such as trash receptacles are eligible costs, but the agency reserves the right to determine which items are expendable in nature. (c) Costs incurred within the fiscal year the application is approved but prior to the date the application is approved will be eligible for reimbursement if documented in the same manner as reimbursement costs incurred after an application is approved. sec.25.13. Extent of State Assistance. (a) Cities and counties which qualify for eligibility under the Natural Resources Code, sec.sec.61.068-61. 070 may receive up to, but no greater than 2/3 reimbursement for eligible expenses incurred in cleaning and maintaining public beaches within such cities and counties which are not under jurisdiction of another governmental entity. (b) Cities qualifying for eligibility under the Natural Resources Code, sec.61.080 or counties qualifying for eligibility under the Natural Resources Code, sec.61.081, and which do not qualify for eligibility under the Natural Resources Code, sec.sec.61.068-61.070, may receive up to 40 reimbursement for eligible expenses incurred in cleaning and maintaining public beaches within their boundaries, but not under the jurisdiction of another governmental entity. sec.25.14. Method of Funding. The agency will allot to the participant the total yearly amount for which the participant may be reimbursed. The total reimbursement shall not exceed the total contract obligation without written authority from the agency. sec.25.15. Payment Procedures. (a) Payments to participants will be made on a reimbursable basis, and the amount of payment will be computed by the agency. Participants who qualify for no greater than 2/3 reimbursement under the Natural Resources Code, sec.sec.61.068-61.070 will be reimbursed quarterly. (c) Participants who qualify for 40% reimbursement under the Natural Resources Code, sec.61.080 and sec.61.081 will be reimbursed annually. sec.25.16. Billing. (a) Billing will consist of a breakdown of project cost elements and will be in a summary format requiring minimal supporting detail. (b) All expenses billed must be certified as true and correct by the county or city internal auditor and chief financial officer, the county or city does not have an internal auditor, by a certified independent public accountant to be chosen by the county or city and a chief financial officer. (c) The agency reserves the right to require full documentation if deemed necessary. (d) Billing records, certification, and all documentation substantiating billings will be maintained in the office of the county or city internal auditor or if the county or city does not have an internal auditor, in the office of its chief financial officer. (e) All billing and certification documents will be provided by the agency. sec.25.17. Local Labor Force Account. If local forces are used for project work, labor charges can be made only for the time actually expended on approved project work. Accurate daily time and attendance records reflecting time and costs representing fund assisted activity only shall be maintained for each supervisor and employee. This information shall be retained for use as a source document for preparation of payrolls and for consolidating and tabulating charges for equipment and material used on the project. sec.25.18. Equipment Rental. (a) If county or city owned equipment is used, rental rates for use of such equipment must be established by the participant and approved by the agency before any equipment use charges included in a billing will be reimbursed. Rates should be current, reasonable, and specify whether or not the operator is included. The Department of Transportation area rates shall be used by the agency as a guideline for determining the reasonableness of the rates under this section. The agency may approve rates higher than those rates set by the Department of Transportation if sufficient evidence of the need for the higher rate is presented and approved by the agency. Rates should be set forth in a resolution of the political subdivision or other similar record of official action. Each piece of equipment shall be adequately described. An accurate daily record of equipment used for project work shall be maintained by the participant. (b) If equipment is rented from another source, a copy of the supplier's statement reflecting rates, time used, and total cost shall be maintained by the participant. (c) The purchase of new or used equipment shall not be fund assisted. sec.25.19. Maintenance of Records. (a) Records to substantiate all charges must be maintained by the participant and made available for examination by agency representatives at any time. Records shall be maintained separately to facilitate examination or audit. (b) All expenses will be described in a summary format referencing account document number, description, payee, date, and amount. (c) The participant must maintain a complete accounting of all claimed expenses and their supporting detail, including, but not limited to, records of equipment use, time cards, payroll records, invoices, contracts, and canceled checks. (d) All substantiating documents in support of this program will be kept in the office of the county or city internal auditor, or if the county or city does not have an internal auditor, in the office of its chief financial officer, for a period of two years following the termination of the state fiscal year in which the project agreement expires. sec.25.20. Audit. The audit branch of the finance division of the agency will perform random audits of and shall have access to all participants records related to the beach cleaning program for the purpose of verifying compliance with the provisions of this chapter and the Texas Natural Resource Code, Chapter 61, Subchapter C. sec.25.21. Ineligibility. (a) If the agency determines by audit or other method that the participant no longer complies with the requirements of this chapter or the Texas Natural Resource Code, Chapter 61, Subchapter C, it shall notify the participant that further payment will not be made until the agency is satisfied that there is no longer any failure to comply. The agency may withhold funds and require reimbursement to be made for funds claimed and received in violation of this chapter or the Texas Natural Resource Code, Chapter 61, Subchapter C. (b) The notice required by subsection (a) of this section must be given: (1) to the acting head of the participant that is not in compliance with this chapter or the Texas Natural Resource Code, Chapter 61, Subchapter C; (2) to the official with responsibility for the project as indicated by the participant's application; and (3) to the official authorized to receive state reimbursement as indicated by the participant's application. (c) The notice required by subsection (a) of this section shall be by hand delivery, overnight courier, or by registered or certified mail, return receipt requested, and shall include notice of: (1) the act or omission that has rendered the participant in violation of this chapter or the Texas Natural Resource Code, Chapter 61, Subchapter C; (2) the action required of the participant in order for the participant to be in compliance with this chapter or the Texas Natural Resource Code, Chapter 61, Subchapter C; (3) the amount, if any, required to be reimbursed for funds claimed and received in violation of this chapter and the Texas Natural Resource Code, Chapter 61, Subchapter C; and (4) the participant's right to submit, not later than the 3Oth day after the date on which notice is served, written request for a hearing on the matter. sec.25.22. Hearing. (a) Hearings under this chapter shall be conducted in accordance with the provisions of the Administrative Procedure and Texas Register Act, Texas Civil Statutes, Article 6252-13(a) (Vernon Supplement 1991). (b) All documents shall be filed with the administrative hearings clerk at the following address: Administrative Hearings Clerk, General Land Office, 1700 North Congress Avenue, Room 630, Austin, Texas 78701-1495. (c) The hearing examiner shall determine the date, time, place and amount of time to be allotted for any hearing to be held under this chapter. 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 December 4, 1991. TRD-9115424 Garry Mauro Commissioner General Land Office Earliest possible date of adoption: January 17, 1991 For further information, please call: (512) 463-5394 Part II. Parks and Wildlife Department Chapter 55. Law Enforcement Subchapter E. Depredating Animal Control and Wildlife Management from Aircraft 31 TAC sec.sec.55.142, 55.143, 55.145, 55.151, 55.152 The Texas Parks and Wildlife Department proposes amendments to sec.sec.55.142, 55.143, 55.145, 55.151, and 55.152, concerning regulating depredating animal control and wildlife management from aircraft. The 72nd Legislature expanded the agency's regulatory authority over managing wildlife by aircraft. Senate Bill 1217 amended the Texas Parks and Wildlife Code, Chapter 43, Subchapter G, to include exotic and non-indigenous wild animals as animals that may be controlled from The amendments define exotic animals, permit sale of animals taken by aircraft, and restrict hunting hours. Robin Riechers, staff economist, 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. Riechers 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 that landowners' ability to effectively control depredating animals will increase. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the sections as proposed. The department has not filed a local employment impact statement with the Texas Employment Commission in compliance with the Administrative Procedure and Texas Register Act, sec.4A, as this agency has determined that the rules as proposed will not impact local economics. Comments on the proposed amendments may be submitted to Chester Burdett, Director of Law Enforcement, Texas Parks and Widlife Department, 4200 Smith School Road, Austin, Texas 78744, (5]2) 389-4845, or 1-800-792-1112, extension 4845. The amendments are proposed as a result of recent legislation which amended the Texas Parks and Wildlife Code, Chapter 43, Subchapter G, and Texas Civil Statutes, Article 6252-13a, which authorize the department to issue permits for the control of depredating animals or the management of wildlife by use of an aircraft in this state. sec.55.142. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Depredating animals -Feral hogs, bobcats, red fox, exotic animals,
                coyotes, and crossbreeds between coyotes and dogs. Exotic animals -Those animals listed in the Texas Parks and Wildlife Code, sec.62.015 and wild animals that are non-indigenous to Texas listed in the Parks and Wildlife Code, sec.12.601. sec.55.143. Application for Permit. An applicant for a permit shall complete and place on file with the department an application on a form prescribed by the director. The application shall contain the description, including make, model, color, and registration number of each aircraft to be used. The
                  [, the] name of each individual pilot will be shown exactly as it appears on his or her state driver's license, personal I.D. card issued by the Department of Public Safety, or the FAA license, along with a current
                    [and] address and date of birth of the applicant (date of birth not applicable if corporation), and the name, address, and date of birth of each pilot. Each
                      [The] application shall include the species and number of depredating animals to be taken or the species of wildlife to be managed by the use of aircraft. The application shall be notarized. sec.55.145. Issuance of Permit. (a) A permit will not be issued to include any threatened or endangered species shown on any state or federal list, or animals listed as game animals in the Texas Parks and Wildlife Code. (b) A permit will not be issued for non-indigenous wild animals listed in the Parks and Wildlife Code, sec.12.601, except as authorized by the executive director or his/her designee when a specific animal(s) has escaped from captivity. (c) Upon the filing of a properly executed application, the director or his/her
                        designee may issue a permit if: (1) the applicant, or any pilot named in the application, has not within five years of the date of the application been convicted of any civil or criminal provision of any statute or regulation relating to the taking of wildlife [resources]; (2)-(4) (No change.) sec.55.151. Reports. (a) The holder of an aerial
                          [a] depredating permit shall file with the department within 30 days following the end of each calendar quarter or on termination of the permit, whichever occurs first, a report, on a form prescribed by the director, showing: (1)-(5) (No change.) (6) a report is required even if no activity was performed
                            [that if there is no activity, a report to that effect is required]. (b) The holder of an aerial
                              [a] management permit shall file with the department a report within 30 days following the expiration of the landowner's consent authorization a report, on a form prescribed by the director, showing: (1)-(5) (No change.) (6) a report is required even if no activity was performed
                                [that if there is no activity, a report to that effect is required]. sec.55.152. General Rules. (a) (No change.) (b) A pilot of an aircraft used for the taking of depredating animals or for managing wildlife must maintain a log, on a form prescribed by the director, in the aircraft showing the dates depredating animals were hunted, the number taken, the wildlife captured or managed, and the property hunted on. The log must be current and available for inspection by game wardens at reasonable times. Each permit holder and pilot shall comply with all federal aviation regulations for the specific type of aircraft listed on this application. (c) A person commits an offense if: (1) the person hunts, shoots, shoots at, kills, or attempts to kill from an aircraft any wild animal other than animals defined as depredating animals in these rules and permitted by the aerial depredation permit and landowner authorization
                                  ; (2) (No change.) (3) the person acts as a gunner, observer, or pilot and has been convicted of any civil or criminal provision of any statute or regulation relating to the taking or managing of wildlife within one year immediately preceding the date of any flight related to depredating animal control or wildlife management from an aircraft
                                    [the person acts as a gunner, observer, or pilot and has been convicted of any civil or criminal provision of any statute or regulation relating to the taking of wildlife resources within five years immediately preceding he date the hunt is to take place]; (4) the person pilots an aircraft to control deredating animals or manage wildlife without a valid commercial pilot's license; (5) the person pays, barters, or exchanges anything of value to participate as a gunner; (6) the person acting as a gunner or pilot under a depredating animal permit takes or attempts to take any animal for any purpose other than is necessary for the protection of lands, water, wildlife, livestock, domesticated animals, human life, or crops, except that an animal or parts of an animal, once lawfully taken pursuant to this subchapter and not otherwise prohibited, may be sold; (7) the person acting as a gunner or pilot hunts, takes, kills, or attempts to hunt, take, or kill depredating animals during the hours between 1/2 hour after sunset and 1/2 hour before sunrise; (8)
                                      [(4)] the person operates an aircraft when depredating animals are hunted or wildlife management is performed and is not named as an authorized pilot in a permit; (9)
                                        [(5)] the person kills more depredating animals on properties specified in the landowner's consent authorization than are specified in the landowner's consent authorization; (10)
                                          [(6)] the person is a pilot or passenger in an aircraft and possesses a firearm while managing wildlife; or (11)
                                            [(7)] the person uses a permit for the purpose of sport hunting. (d) (No change.) (e) These rules do not exempt any person from the requirement for other licenses or permits required by statute or proclamation
                                              [Notwithstanding the provisions of this subchapter, incligenous species may be taken only under any other applicable permit required by statute or by proclamation]. 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 December 11, 1991. TRD-9115603 Paul M. Shinkawa Director, Legal Services Texas Parks and Wildlife Department Earliest possible date of adoption: December 31, 1991 For further information, please call: 1-800-792-1112, ext 4845 or (512) 389-4845 Chapter 57. Fisheries and Wildlife Rough Fish Removal Permit Application 31 TAC sec.sec.57.211-57.220 (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 Parks and Wildlife Department or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas Parks and Wildlife Commission proposes the repeal of 31 TAC sec.sec.57.211-57.220 concerning rough fish removal permits. The 72nd Legislature repealed sec.66.113, and sec. s66.115-66.118 of the Parks and Wildlife Code concerning permitting of rough fish removal. The department no longer has the statutory authority to issue these permits. Robin Reichers, staff economist, has determined that for the first five-year period the repeals are in effect there will be no significant fiscal implications for state or local government as the repeals will not affect current activities. Robin Reichers also has determined that for each year of the first five years the repeals are in effect the public benefit and costs anticipated as a result of enforcing the repeals will be the substitution of more inclusive and enforceable regulations in another section of the Texas Administrative Code. There will be no effect on small businesses. The department has not issued a rough fish removal permit since the mid 1970's so the anticipated economic cost to persons who are affected by the repeal of the existing regulations will be minimal. 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 Mr. Phil Durocher, Inland Fisheries Branch Chief, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744, (512) 389-4643, or 1-800-792-1112, ext. 4643. The repeals are proposed under Senate Bill 726, passed in regular session of the 72nd Legislature repealed Texas Parks and Wildlife Codes, sec.66.113, and sec.sec.66.115-66.118. Repeal of existing rules authorized in these statutes are proposed as a result of the repeal of this statutory authority. sec.57.211. Procedure for Processing Rough Fish Removal Permit Applications. sec.57.212. Cancellation and Temporary Suspension. sec.57.213. Hearing. sec.57.214. Time and Notice of Hearing. sec.57.215. Hearing Officer. sec.57.216. Evidence. sec.57.217. Final Action. sec.57.218. Suspension of Rough Fish Removal. sec.57.219. Hearing Not Authorized. sec.57.220. Forfeiture of Bond. 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 December 10, 1991. TRD-9115526 Paul M. Shinkawa Director, Legal Services Texas Parks and Wildlife Department Earliest possible date of adoption: January 17, 1991 For further information, please call: 1-800-792-1112, ext. 4643, or (512) 389- 4643 TITLE 34. PUBLIC FINANCE Part I. Comptroller of Public Accounts Chapter 5. Funds Management (Fiscal Affairs) Claims Processing-Payroll 34 TAC sec.5.46 The Comptroller of Public Accounts proposes new sec.5.46, concerning deductions for certain membership fees. The new section defines terms and prescribes procedures for participation in the program under which deductions may be made from an employee's salary or wages to pay membership fees to state employee organizations. George Tamayo, manager of fund accounting, has determined that for the first five-year period the section is in effect there will be no significant revenue impact on the state or local government as a result of enforcing or administering the section. Mr. Tamayo 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 in providing complete information to interested parties regarding the administration of this program of payroll deduction. 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. Comments on the new section may be submitted to Kenny McLeskey, Director of Claims, P.O. Box 13528, Austin, Texas 78711. The new section is proposed under the Texas Government Code, sec.403.011, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the payment of accounts of the state. sec.5.46. Deductions for Certain Membership Fees. (a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Comptroller-The Comptroller of Public Accounts for the State of Texas. (2) Eligible organization-A state employee organization that the comptroller has certified in accordance with this section and whose certification has not been terminated. (3) Employer-A state agency that employs one or more state employees. (4) Fiscal year-The fiscal year of the State of Texas. (5) Holiday-A state or national holiday as specified by the General Appropriations Act or Texas Civil Statutes, Article 4591.2. (6) Include-Is a term of enlargement and not of limitation or exclusive enumeration. The use of the term does not create a presumption that components not expressed are excluded. (7) Institution of higher education-Has the meaning assigned by the Education Code, sec.61.003. (8) May not-Is a prohibition. The term does not mean "might not" or its equivalents. (9) Membership fee-The dues or fee that a state employee organization requires a state employee to pay to maintain membership in the organization. (10) Payee identification number-The 14-digit number that the comptroller assigns to each direct recipient of a payment made by the comptroller for the State of Texas. (11) Salary or wages-Base salary or wages, longevity pay, or hazardous duty pay. (12) State agency-A department, commission, council, board, office, agency, or other entity of Texas state government, including an institution of higher education. (13) State employee-An employee of a Texas state agency. The term includes an elected or appointed official, a part-time employee, an hourly employee, a temporary employee, an employee who is not covered by the Position Classification Act; of 1961, and a combination of the preceding. The term excludes an independent contractor and the employee of an independent contractor. (14) State employee organization-An association, union, or other organization that advocates the interests of state employees concerning grievances, compensation, hours of work, or other conditions or benefits of employment. (15) Workday-A calendar day other than Saturday, Sunday, or a holiday. (b) Deductions. (1) Authorization of deductions. (A) A state employee may authorize one or more monthly deductions from the employee's salary or wages to pay membership fees to eligible organizations. (B) No state agency or state employee organization may state or imply that a state employee is required to authorize a deduction under this section. (C) A state employee may provide an authorization only if the employee: (i) properly completes an authorization form; and (ii) submits the form to the eligible organization to which the membership fees will be paid. (D) Neither the comptroller nor a state agency is liable or responsible for any damages or other consequences resulting from a state employee authorizing an incorrect amount of a deduction authorized by this section. (2) Manual change in the amount of a deduction. (A) At any time, a state employee may authorize a change in the amount to be deducted under this section from the employee's salary or wages. (B) A state employee may authorize a change in the amount of a deduction under this section only if the employee: (i) properly completes an authorization form; and (ii) submits the form to the affected eligible organization. (C) Neither the comptroller nor a state agency is liable or responsible for any damages or other consequences resulting from a state employee changing the amount of a deduction authorized by this section. (3) Automatic change in the amount of a deduction. (A) A state employee may authorize the employee's employer to change the amount of a deduction under this section from the employee's salary or wages without the employee first submitting an authorization form for the change. (B) A state employee may provide an authorization under subparagraph (A) of this paragraph only for a change that is needed because an eligible organization has changed the amount of membership fees it charges to state employees. An employee may not provide the authorization for a change that is needed because the employee's salary or wages have increased or decreased. (C) Even if a state employee provides the authorization under subparagraph (A) of this paragraph, the employee's employer may require the employee to submit a properly completed authorization form to the employer before the employer changes the amount of a deduction under this section from the employee's salary or wages. (D) A state employee may provide the authorization under subparagraph (A) of this paragraph only if the employee: (i) properly completes an authorization form that enables state employees to provide the authorization; and (ii) submits the form to the affected eligible organization. (E) An eligible organization must notify affected state agencies at least 60 calendar days before the first working day of a month for which a change in the amount of its membership fees is to be effective. An agency is not required to change the amount deducted from any employee's salary for membership in that organization for any periods for which such notice has not been given. (4) Sufficiency of salary or wages to support a deduction. (A) A state employee is solely responsible for ensuring that the employee's salary or wages are sufficient to support a deduction authorized by this section. (B) If a state employee's salary or wages are sufficient to support only part of a deduction authorized by this section, then no part of the deduction may be made. (C) The amount that could not be deducted from a state employee's salary or wages because they were insufficient to support the deduction may not be made up by deducting the amount from subsequent payments of salary or wages to the employee. (5) Timing of deductions. A deduction authorized by this section must be made from the salary or wages that are paid on the first working day of a month. (6) Regularity of deductions. A deduction authorized by this section must be calculated so that the total membership fee paid by a state employee per year is spread evenly over 12 monthly deductions. (7) Retroactive deductions. (A) In this paragraph, "retroactive deduction" means a deduction authorized by this section to the extent the purpose of the deduction is: (i) to correct an error made in a previous month that resulted in the amount of money deducted being less than the amount authorized by a state employee; or (ii) to catch-up on the amount of membership fees owed by a state employee to an eligible organization because a deduction authorized by this section was not made in one or more previous months. (B) A retroactive deduction is prohibited unless: (i) an error described in subparagraph (A)(i) of this paragraph was committed by the employer of the employee; and (ii) the eligible organization that received the erroneous deduction consents to the retroactive deduction. (8) Cancellation of deductions. (A) A state employee may cancel at any time a deduction authorized by this section. (B) A state employee may cancel a deduction authorized by this section to an eligible organization only if the employee: (i) properly completes a cancellation form and submits the form to the organization or the employee's employer; or (ii) provides other written notice of the cancellation to the organization or the employee's employer. (C) If a state employee submits a cancellation form or other written notice of cancellation to the employee's employer, then the agency must include a copy of the form or notice with the next detail report that the agency sends to the affected eligible organization. (D) Neither the comptroller nor a state agency is liable or responsible for any damages or other consequences resulting from a state employee cancelling a deduction authorized by this section. (9) Interagency transfers of state employees. A state employee who transfers from one state agency to a second state agency must be treated by the second state agency as if the employee has not yet authorized any deductions under this section. (c) Effectiveness of authorization forms. (1) Effective date of authorization forms. (A) This subparagraph applies if a state agency receives a state employee's properly completed authorization form on the first calendar day of a month. (i) The first deduction authorized by this section must be made from the employee's salary or wages that are paid on the first workday of the first month following the month in which the agency receives the form. (ii) If an authorization form is submitted to change the amount of a deduction authorized by this section, then the change is effective with the deduction made on the first workday of the first month following the month in which the agency receives the form. (B) This subparagraph applies if a state agency receives a state employee's properly completed authorization form after the first calendar day of a month. (i) The first deduction authorized by this section must be made from the employee's salary or wages that are paid on the first workday of the second month following the month in which the agency receives the form. However, the agency may consent for the first deduction to occur from the salary or wages that are paid on the first workday of the first month following the month in which the agency receives the form. (ii) If an authorization form is submitted to change the amount of a deduction authorized by this section, then the change is effective with the deduction made on the first workday of the second month following the month in which the agency receives the form. However, the agency may consent for the change to be effective with the deduction made on the first workday of the first month following the month in which the agency receives the form. (C) If the first calendar day of a month is not a workday, then the first workday following the first calendar day is the deadline for the receipt of properly completed authorization forms. (D) Notwithstanding any other provision of this section, state agencies may not accept authorization forms during the month of December. (E) Eligible organizations are solely responsible for ensuring that properly completed authorization forms are received by the deadline. (2) Return of authorization forms. (A) A state agency shall return an authorization form to the eligible organization that submitted the form if the agency received the form during December 1992 or during December of a later year. (B) A state agency shall return an authorization form to the eligible organization that submitted the form if: (i) the form is incomplete, contains erroneous data, or is otherwise insufficient; and (ii) a deficiency listed in clause (i) of this subparagraph makes it impossible for the agency to establish the deduction in accordance with the form. (C) A state agency shall return an authorization form to the eligible organization that submitted the form if the form is for an individual who is not employed by the agency. (3) Copies of authorization forms. An eligible organization is solely responsible for making a copy of each authorization form before the organization submits the form to the appropriate state agency. (d) Effectiveness of cancellation forms and cancellation notices. (1) Effective date of cancellation forms and cancellation notices. (A) This subparagraph applies if a state agency receives a state employee's properly completed cancellation form or cancellation notice on the first calendar day of a month. A state employee's cancellation of a deduction authorized by this section is effective for the salary or wages paid to the employee on the first workday of the first month following the month in which the agency receives the cancellation form or cancellation notice. (B) This subparagraph applies if a state agency receives a state employee's properly completed cancellation form or cancellation notice after the 1st calendar day of a month. A state employee's cancellation of a deduction authorized by this section is effective: (i) for the salary or wages paid to the employee on the first workday of the second month following the month in which the agency receives the cancellation form or cancellation notice; or (ii) for the salary or wages paid to the employee on the first workday of the first month following the month in which the agency receives the cancellation form or cancellation notice if the agency consents to this effective date. (C) If the 1st calendar day of a month is not a workday, then the first workday following the 1st calendar day is the deadline for the receipt of properly completed cancellation forms or cancellation notices. (D) State employees and eligible organizations are responsible for ensuring that properly completed cancellation forms and cancellation notices are received by the deadline. (2) Return of cancellation forms and cancellation notices. (A) A state agency shall return a cancellation form or cancellation notice to the state employee or the eligible organization that submitted the form or notice if: (i) the form or notice is incomplete, contains erroneous data, or is otherwise insufficient; and (ii) a deficiency listed in clause (i) of this subparagraph makes it impossible for the agency to cancel the deduction in accordance with the form or notice. (B) A state agency shall return a cancellation form or cancellation notice to the state employee or the eligible organization that submitted the form or notice if the form or notice is for an individual who is not employed by the agency. (C) If a state agency returns a cancellation form or cancellation notice to an eligible organization, then the agency must promptly mail or deliver a copy of the returned form or notice to the state employee who completed it. (3) Copies of cancellation forms and cancellation notices. A state employee or eligible organization is responsible for making a copy of the employee's cancellation form or cancellation notice before the employee or organization submits the form to the employee's employer. (e) Authorization and cancellation forms. (1) The comptroller's approval of authorization and cancellation forms. (A) An eligible organization may not distribute or provide an authorization or cancellation form to a state employee until the organization has received the comptroller's written approval of the form. (B) As a condition for retaining its eligibility, an eligible organization must produce an authorization form and a cancellation form that comply with the comptroller's requirements and this section. The organization must produce the forms within a reasonable time after the organization receives its certification from the comptroller. (C) The comptroller may not approve the authorization or cancellation form of an eligible organization unless: (i) the form is at least 8 1/2 inches wide; (ii) the form is at least 11 inches long; and (iii) the cancellation form clearly informs state employees that they are not required to state a reason for a cancellation; and (iv) the form complies with the comptroller's requirements for format and substance. (D) An eligible organization must revise an authorization or cancellation form upon request from the comptroller. The organization may not distribute or otherwise make available to state employees a revised form until the organization has received the comptroller's written approval of the form. (2) Distribution of authorization or cancellation forms. (A) An eligible organization must provide an authorization or cancellation form to a state employee or state agency promptly after receiving: (i) an oral or written request for the form from the employee or agency; or (ii) an oral or written request to provide the form to the employee from the comptroller or the employee's employer. (B) A state agency may maintain a supply of cancellation forms and distribute the forms to its state employees upon request. An eligible organization shall promptly provide the forms to the agency upon request. (f) Procedural requirements for certifying state employee organizations. (1) Request for certification. (A) The comptroller may not certify a state employee organization unless the comptroller receives a written request for certification from an individual who is authorized by the organization to make the request. (B) The comptroller may not certify a state employee organization if the comptroller receives the organization's request for certification after June 3rd of a fiscal year. (2) Requirements for requests for certification. The comptroller may not certify a state employee organization unless the organization's request for certification includes: (A) the organization's complete name; (B) the street address of the headquarters of the organization; (C) the mailing address of the headquarters of the organization, if different from the street address; (D) the full name, title, telephone number, and mailing address of the organization's primary contact; (E) a specific request for certification as an eligible organization; (F) a specific agreement to pay the administrative fees charged by the comptroller under this section; (G) a specific acceptance of the requirements of this section as they exist at the time the request is made or as adopted or amended thereafter; (H) the payee identification number of the organization; and (I) the other information that the comptroller deems necessary. (g) Substantive requirements for certifying state employee organizations. (1) Membership. (A) The comptroller may not certify a state employee organization unless it submits persuasive evidence to the comptroller that the organization had a membership of at least 4,000 state employees throughout the 18 months preceding the month in which the comptroller receives the organization's request for certification. (B) An example of the evidence that the comptroller may review is a membership roster containing the name of each state employee who is a member of the organization, the date each employee joined the organization, and the date through which each employee's membership fees are paid. (2) Statewide activities. The comptroller may not certify a state employee organization unless it demonstrates to the comptroller that the organization conducts activities on a statewide basis. A state employee organization may satisfy this requirement by submitting any relevant evidence, including newsletters, news articles, correspondence, and membership rosters containing the names and addresses of the organization's members. (3) Membership fee structure. (A) The comptroller may not certify a state employee organization unless it proves to the comptroller that the organization had a membership fee structure for state employees throughout the 18 months preceding the month in which the comptroller receives the organization's request for certification. A state employee organization may satisfy this requirement by submitting relevant evidence, including dated enrollment forms from state employees, documentation about the fees structure, and financial records. (B) The comptroller may not certify a state employee organization unless it demonstrates to the comptroller that the membership fees collected from state employees will be equal to an average of at least one-half of the membership fees received by the organization nationwide. A state employee organization may satisfy this requirement by submitting financial records that compare the membership fees to be received from state employees with the membership fees received from other individuals throughout the nation. (4) Electronic funds transfers. The comptroller may not certify a state employee organization unless: (A) the organization has submitted a request to be paid through electronic funds transfers under rules adopted by the comptroller; and (B) the comptroller has approved the request. (5) Exception. (A) The comptroller shall certify a state employee organization that demonstrates to the satisfaction of the comptroller that the organization had a membership of at least 4,000 state employees on April 1, 1991. The organization is not required to satisfy any of the other substantive requirements of this subsection except for paragraph (4) of this subsection. (B) A state employee organization may demonstrate that the organization had a membership of at least 4,000 state employees on April 1, 1991, only by: (i) submitting a membership roster containing the name of each state employee who was a member of the organization on April 1, 1991; (ii) the date each employee joined the organization; and (iii) the date through which each employee's membership fees were paid as of April 1, 1991. (6) Notifications. (A) The comptroller shall mail a notice to a state employee organization about the comptroller's approval or disapproval of the organization's request for certification by no later than the 30th day after the comptroller receives the request if the request is complete in all respects. (B) The comptroller shall notify each state agency of the comptroller's certification of a state employee organization by no later than the 30th day after the comptroller makes the certification. (h) Effective date of certification. (1) General effective date. Except as provided in paragraph (2) of this subsection, the first deduction to pay a membership fee to an eligible organization may be made from salary or wages paid on the first workday of the second month following the month in which the comptroller certifies the organization. (2) Exception. The first deduction to pay a membership fee to an eligible organization may be made from the salary or wages paid on February 3, 1992, if the comptroller certifies the organization during January 1992. (i) Payments of deducted membership fees. (1) Payments by the comptroller through electronic funds transfers. The comptroller shall pay deducted membership fees to an eligible organization by electronic funds transfer unless it is infeasible to do so. (2) Payments through warrants issued by the comptroller. (A) This paragraph applies only if it is infeasible for the comptroller to pay deducted membership fees to an eligible organization by electronic funds transfer. (B) The comptroller shall pay deducted membership fees by warrant. (C) The comptroller must issue one warrant for each combination of state agency, eligible organization, and payroll voucher submitted by the agency if the agency has at least one state employee from whose salary or wages a deduction is made under this section. The comptroller must make the warrant payable to the organization. (D) The comptroller must make each warrant available for pick-up by the state agency whose employees' membership fees are being paid by the warrant. The agency must mail or deliver the warrant to the payee of the warrant by no later than the 10th calendar day of the month. If the 10th calendar day of a month is not a workday, then the first workday following the 10th calendar day is the deadline for the mailing or delivery of warrants. (3) Payments by institutions of higher education. (A) This paragraph applies only to membership fees in eligible organizations that have been deducted from salaries or wages that the comptroller does not pay directly to state employees of institutions of higher education. (B) An institution of higher education shall pay deducted membership fees to an eligible organization by electronic funds transfer unless it is infeasible to do so. (C) If it is infeasible for an institution of higher education to pay deducted membership fees to an eligible organization by electronic funds transfer, then the institution shall pay the fees by check. The institution must mail or deliver the check to the organization by no later than the 20th calendar day of the month. If the 20th calendar day of a month is not a workday, then the first workday following the 20th calendar day is the deadline for the mailing or delivery of warrants. (4) Payment reconciliation and discrepancies. (A) An eligible organization shall reconcile the detail report provided by a state agency under subsection (p) of this section with the amount of membership fees paid to the organization under this subsection. (B) An eligible organization must report all discrepancies between the detail report provided by a state agency under subsection (p) of this section and the actual amount of membership fees received under this subsection. The organization must ensure that the agency receives the organization's report of the discrepancies by no later than the 60th calendar day after the day on which the agency mailed the detail report to the organization. If the 60th calendar day is not a workday, then the first workday following the 60th calendar day is the deadline. (C) A state agency that receives a report of discrepancies from an eligible organization shall investigate the discrepancy and notify the organization of the action to be taken to eliminate the discrepancy. A discrepancy may be eliminated by: (i) making a retroactive deduction if it is authorized by subsection (b)(7) of this section; (ii) recovering an excessive payment to an eligible organization of amounts deducted under this section from a subsequent payment to the organization; (iii) recovering an excessive payment to an eligible organization of amounts deducted under this section by obtaining a refund from the organization in accordance with subsection (o)(7) of this section; or (iv) the agency making corrections to the detail report if the report is incorrect. (5) Subordinate units of eligible organizations. (A) A chapter or other subordinate unit of an eligible organization may receive directly from the comptroller or an institution of higher education a payment of deducted membership fees if: (i) the membership fees were deducted under authorizations from state employees to pay membership fees to the organization; and (ii) the organization is credited on the accounting records of the State of Texas with the payment. (B) Requests for such payments must be submitted by the eligible organization rather than by the subordinate units. (C) Such requests will be approved only if the fee structure of the subordinate unit is the same as that of the organization of which the subordinate unit is a part. (D) Approval of such requests does not constitute certification of the chapter or subordinate unit as an eligible organization. (j) Charging administrative fees to cover start-up costs. (1) Imposition of administrative fees. (A) The comptroller shall charge an administrative fee to each state employee organization that is an eligible organization on January 15, 1992. The fee must cover the estimated start-up costs incurred by the comptroller and state agencies while establishing the deduction program authorized by this section. (B) The comptroller shall charge the administrative fee by no later than January 31, 1992. (2) Amount of administrative fee. The comptroller intends to adopt at a later date specific provisions relating to the administrative fee that will be charged to cover start-up costs. (3) Allocation of the administrative fees. (A) The comptroller shall allocate the administrative fees collected from eligible organizations to the comptroller and each state agency that has or is expected to incur start-up costs while establishing the deduction program authorized by this section. (B) The amount of administrative fees that the comptroller allocates to the comptroller or a state agency must be equal to the estimated amount of start-up costs incurred by the comptroller or agency while establishing the deduction program. (C) The comptroller must make the allocations required by this paragraph by no later than the 30th calendar day after the comptroller receives the last payment of administrative fees from eligible organizations. If the 30th calendar day is not a workday, then the first workday following the 30th calendar day is the deadline for making the allocations. (k) Charging administrative fees to cover costs incurred during fiscal year 1992. The comptroller intends to adopt at a later date provisions relating to the administrative fees that will be charged to cover costs incurred during fiscal year 1992. (l) Charging administrative fees to cover costs incurred during fiscal year 1993. The comptroller intends to adopt at a later date provisions relating to the administrative fees that will be charged to cover costs incurred during fiscal year 1993. (m) Charging administrative fees to cover costs incurred during fiscal year 1994 and subsequent fiscal years. The comptroller intends to adopt at a later date provisions relating to the administrative fees that will be charged to cover costs incurred during fiscal year 1994 and subsequent fiscal years. (n) Solicitation. Nothing in this section prohibits the head of a state agency from permitting or prohibiting solicitation by eligible organizations on the premises of the agency. (o) Responsibilities of eligible organizations. (1) Disseminating information. (A) An eligible organization is solely responsible for the dissemination of relevant information to its representatives and employees. (B) An eligible organization must ensure that its representatives and employees comply with the requirements of this section. (2) Notification to the comptroller. An eligible organization must notify the comptroller in writing immediately after a change occurs to: (A) the organization's name; (B) the street address of the headquarters of the organization; (C) the mailing address of the headquarters of the organization, if different from the street address; or (D) the full name, title, telephone number, or mailing address of the organization's primary contact; (3) Primary contact. The individual that a state employee organization designates as its primary contact must represent the organization for the purposes of: (A) communicating with the comptroller, including receiving and responding to correspondence from the comptroller; and (B) disseminating information, including information about the requirements of this section, to representatives of the organization. (4) Payee identification number. The payee identification number of an eligible organization must appear on all correspondence from the organization to the comptroller or a state agency. (5) Acceptance and submission of authorization forms. (A) An eligible organization must accept an authorization form from a state employee if a refusal to accept the form would violate a law of the United States or the State of Texas. (B) An eligible organization must make a reasonable effort to ensure that the appropriate state agency receives the original of a state employee's authorization form by no later than the 15th calendar day after the organization receives the form from the employee. If the 15th calendar day is not a workday, then the first workday following the 15th calendar day is the deadline. If the 15th calendar day occurs during the month of December, the first workday of January is the deadline. (6) Acceptance and submission of cancellation forms and cancellation notices. (A) An eligible organization must accept a cancellation form or cancellation notice from a state employee unless: (i) the employee is not a member of the organization; or (ii) the employee did not properly complete the cancellation form. (B) An eligible organization must make a reasonable effort to ensure that the appropriate state agency receives the original of a state employee's cancellation form or cancellation notice by no later than the 15th calendar day after the organization receives the form or notice from the employee. If the 15th calendar day is not a workday, then the first workday following the 15th calendar day is the deadline. (7) Refunding excessive payments of amounts deducted under this section. (A) An eligible organization shall refund a payment of amounts deducted under this section to the extent the amount exceeds the amount that should have been paid to the organization if: (i) the organization receives a written request for the refund from a state agency; (ii) the agency provides reasonable evidence of the overpayment to the organization; and (iii) no subsequent payments of amounts deducted under this section are anticipated to be made to the organization. (B) If a refund is required by subparagraph (A) of this paragraph, the organization must ensure that the appropriate state agency receives the refund by no later than the 30th calendar day after the later of: (i) the date on which the organization receives the agency's written request for the refund; and (ii) the date on which the organization receives the agency's reasonable evidence of the overpayment. (p) Responsibilities of state agencies. (1) Reports of violations. A state agency may report to the comptroller a violation of this section that the agency believes an eligible organization or its representatives or employees might have committed. A report must be made in writing, and a copy of the report must be mailed to the organization at the same time that the original of the report is mailed to the comptroller. (2) Authorization forms. A state agency: (A) may accept authorization forms only if they comply with this section; (B) must ensure that the identifying information for an eligible organization on an authorization form is the same as the identifying information on the notification document received from the comptroller under subsection (g)(6)(B) of this section; and (C) may not accept an authorization form that contains an obvious alteration without the state employee's written consent to the alteration. (3) Detail reports to eligible organizations. (A) This subparagraph applies to the employer of one or more state employees from whose salary or wages deductions authorized by this section are made. An employer must submit a detail report each month to each eligible organization that receives the deductions. The report must be submitted in the manner required by the organizations unless the employer is incapable of complying with the requirement. (B) A detail report to an eligible organization for a month must include: (i) the name, in alphabetical order, and social security number of each state employee from whose salary or wages a deduction was authorized by this section for the month, regardless of whether the deduction was actually made; and (ii) the amount of the deduction made for each employee. (C) This subparagraph applies when the comptroller or an institution of higher education pays membership fees to an eligible organization by warrant or check. The appropriate state agency must mail the detail report for the payment to the organization by no later than the 20th calendar day of the month in which the payment was made. If the 20th calendar day is not a workday, then the first workday following the 20th calendar day is the deadline for mailing the report. (D) This subparagraph applies when the comptroller or an institution of higher education pays membership fees to an eligible organization by electronic funds transfer. The appropriate state agency must mail the detail report for the payment to the organization by no later than the 20th calendar day of the month in which the payment was made. If the 20th calendar day is not a workday, then the first workday following the 20th calendar day is the deadline for mailing the report. (q) Termination of certification. (1) Termination by the comptroller. (A) The comptroller may terminate the certification of an eligible organization only if the organization violates: (i) subsection (e)(1) of this section; or (ii) subsection (j)(3) (B) of this section. (B) The comptroller may determine the effective date of a termination under this paragraph. No deduction authorized by this section may be made to an eligible organization on or after the effective date of a termination under this paragraph. (C) When the comptroller terminates the certification of an eligible organization, the comptroller shall send written notice of the termination to the organization via certified mail, return receipt requested. (2) Termination by eligible organizations. (A) An eligible organization may terminate its participation in the deduction program authorized by this section only by terminating its certification. (B) An eligible organization may terminate its certification by providing written notice of termination to the comptroller. However, an organization may not provide written notice of termination to the comptroller until the organization has provided written notice of termination to each state employee from whose salary or wages a membership fee to the organization is being deducted. (C) An eligible organization's termination of its certification is effective beginning with the salary or wages that are paid on the first workday of the third month following the month in which the comptroller receives the organization's proper notice of termination. (r) Commencement of deductions. A deduction for a membership fee to an eligible organization may not be made from salary or wages that are paid before February 3, 1992. 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 December 11, 1991. TRD-9115590 Martin Cherry Chief, General Law Section Comptroller of Public Accounts Earliest possible date of adoption: January 17, 1991 For further information, please call: (512) 463-4028 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part VI. Texas Department of Criminal Justice Chapter 165. State Aid Distribution and Monitoring Subchapter E. Performance Reward Program 37 TAC sec.sec.165.60-165.68 The Texas Department of Criminal Justice proposes adoption of new sec.sec.165. 60-165.68, concerning the establishment of rules and eligibility criteria for performance reward funding for counties which successfully divert offenders from confinement. These program rules are proposed for the implementation of the Texas Code of Criminal Procedure, Article 42.13, new sec.13, as promulgated at Chapter 10, sec.11.06, pages 197-198, Sessions Laws, 72 Legislative Session, Second Called Session. Bob Young, director of the Austin Budget Office for Finance and Administration, has determined that the fiscal implications resulting from the enforcement of these rules will be within funds allocated by the Legislature for administration of the performance reward program. Mr. Young 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 reward counties which successfully divert offenders from confinement in conformity with legislative intent. Since program participation is voluntary, the possible costs involved in data collection will vary at the discretion of possible participating counties. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the sections as proposed. Comments on these proposed rules may be submitted to Dick Lewis, Community Justice Assistance Division, Suite 600, Building B, 8100 Cameron Road, Austin, Texas 78753. The new sections are proposed under the Texas Code of Criminal Procedure, Article 42.12, sec.13(a), requires that the Texas Board of Criminal Justice develop and implement a performance reward program, and these rules are promulgated pursuant to that authority. sec.165.60. Performance Reward Program-General. Pursuant to the Texas Code of Criminal Procedures, Article 42.13 s13, the Community Justice Assistance Division (CJAD) of the Texas Department of Criminal Justice (TDCJ) establishes a performance reward program for counties which successfully diverts offenders from confinement. As is set forward in detail following, to be eligible for participation, a county must conform to all of the following requirements: (1) achieve the state-wide performance ranking score required by the Texas Board of Criminal Justice (board) on the legislatively mandated performance reward factors described in sec.165.61 of this title (relating to Performance Ranking Process); and (2) submit a Performance Reward Program Plan and Budget Schedule which conforms to statutory and departmental standards, as set forward in sec.sec.165.63-165.66 of this title (relating to Data Collection; County Plan Submission Requirements; Rules Governing Program Accountability and Audits; and Program Evaluation Standards); and (3) cooperate fully with the Institutional Division (ID) employees who are evaluating inmates for release on parole from county jails, as set forward in sec.165.67 of this title (relating to Required Cooperation with Institutional Division Employees); and (4) comply with the audit and fiscal reporting requirements of the CJAD, as set forward following; and (5) provide a resolution formally adopted by the county commissioner's court which authorizes the county to participate in the Performance Reward Program, subject to rules promulgated by the board. sec.165.61. Performance Ranking Process. In conformity with the mandate of the Texas Code of Criminal Procedure, Article 42.13, s13(a), the board adopts the following mandatory performance reward factors, which are to be computed as indicated following: (1) the personal bond utilization rate in the county, which shall be computed by dividing the total number of bonds (including both personal recognizance bonds and other bonds) issued in the county by the total number of persons arrested during the most recently completed state fiscal year; (2) the pretrial diversion rate in the county, which shall be computed by dividing the total number of persons accused of either a felony or a misdemeanor who were placed under some form of pretrial supervision (including programmatic placements) by the total number of persons arrested for a misdemeanor or felony in the county during the most recently completed state fiscal year; (3) the deferred adjudication rate in the county, which shall be computed by dividing the total number of persons charged with either a felony or a misdemeanor who were placed on deferred adjudication status in the county, divided by the sum of the total number of persons convicted in the county plus the total number of deferred adjudications in the county during the most recently completed state fiscal year; (4) the probation rate in the county, which shall be computed by dividing the total number of persons placed on felony and misdemeanor probation in the county by the total number of felony and misdemeanor convictions in the county during the most recently completed state fiscal year; (5) the probation revocation rates. (A) The technical probation revocation rate shall be determined by dividing the total number of felony and misdemeanor probationers whose probation was revoked for any reason other than conviction of a subsequent offense during the prior state fiscal year by the average probation population for the county. The average probation population for the county shall be determined by dividing the total number of persons on felony and misdemeanor probation for the prior state fiscal year by 12. (B) The non-technical probation revocation rate for the county shall be determined by dividing the total number of felony and misdemeanor probationers whose probation was revoked for the conviction of a subsequent offense during the prior state fiscal year by the average probation population for the county. The average probation population shall be determined as set forth under subparagraph (A) of this paragraph. (C) The total probation revocation rate for the county shall be determined by dividing the total number of technical and non-technical probation revocations in the county by the average probation population, which shall be determined as set forth under subparagraph (A) of this paragraph. (6) the utilization rate of residential and non residential diversion programs in the county which shall be computed by dividing the total number of county felony or misdemeanor probationers who were placed in either a residential or non-residential diversion program (ie, an intensive supervision probation program, a specialized caseloads program, a surveillance program, an electronic monitoring program, or a restitution center program) by the county's average probation population during the prior state fiscal year. Average probation population shall be defined as set forward under paragraph (5)(A) of this section. (7) the ID commitment rate for the county which shall be computed by dividing the total number of felons sentenced directly to the ID from the county by the total number of felons convicted in the county; (8) the admissions per index crimes rate which shall be computed by dividing the total number of admissions into the ID during the last state fiscal year by the total number of crimes committed in the county during the last state fiscal year, as reflected on the uniform index crime reports. (9) use of ID admissions. (A) The frequency with which admissions are not used shall be measured by the number of occasions on which a county did not use its weekly admissions divided by 52, or by dividing the number of occasions on which a county did not use its cyclical admissions by 13. The relevant computation shall be made using data from the most recently completed state fiscal year. (B) The extent to which a county did not use its allocated admissions shall be measured by dividing its total number of allocated annual admissions by the total number of its actual admissions during the most recently completed state fiscal year. sec.165.62. Formula For Computation of Performance Reward Rankings. (a) It was the intent of the legislature in establishing the performance reward program to provide financial incentives to those counties with programs for diverting offenders from the Institutional Division of the Texas Department of Criminal Justice. In conformity with that intent, the board hereby adopts the following formula for computation of performance reward rankings. (1) State-wide median scores will be ascertained for each factor. (2) The rate distribution for each factor will be divided into deciles. (3) Decile rankings and performance award points for the probation revocation and admissions per index crime factors. Counties with rates below the statewide median for probation revocation and admissions per index crime factors will receive positive scores, and counties with rates above the statewide median for those factors will receive negative scores. The first 10% of counties below the median will receive one positive point, the next decile will receive two positive points, and so forth, with the counties in the lowest decile receiving plus five points. Negative points will be assigned in a similar fashion to counties ranking above the median on these factors. (4) Decile rankings and award points for all factors other than the probation revocation and admissions per index crime factors. Counties with rates above the statewide median for all factors other than the probation revocation and admissions per index crime factors will receive positive scores, and counties with rates below the median will receive negative The first 10% of counties above the median will receive plus one point, while the next 10% will receive two points, and so forth, with the top 10% of counties receiving plus five points. Negative points will be assigned in a similar fashion, based on deciles below the median. (5) All positive and negative performance award points shall then be totaled to ascertain the overall state-wide average point score. (6) Each county which obtains an overall score greater than the statewide average shall be eligible to receive the statutory minimum $50,000 grant award, provided that the county complies with all of the other eligibility criteria set forth in the other provisions of these regulations. (7) The Community Justice Assistance Division will then multiply the number of counties eligible for minimum grant funding times $50,000 to determine what dollar amount of the total appropriation for this program must be utilized to pay for the statutory minimum grant awards, and what dollar amount is available for distribution as performance ranking award funding. (8) Performance ranking award funding shall be determined by the following computations. (A) All funds in excess of the amount which must be allocated for statutory minimum grant awards will be divided by the total number of positive performance award points earned by all counties. (B) The total dollar amount of funding available as performance ranking award funding will then be divided by the state-wide total of earned positive performance award points to determine a dollar value for each point. (C) Each county's positive performance award points will then be multiplied times the dollar value per point to establish the county's possible maximum performance ranking award funding. (b) Performance reward funding limit. (1) The maximum amount of performance ranking award funding above the $50,000 base referenced in subsection (a)(7) of this section that a county may receive shall be $1.00 per capita, based on the total population of the county as recorded in the most recent census. (2) Each county's actual dollar award will be determined by multiplying the county's positive performance award points times the dollar value per point, subject to adjustments based on the performance reward funding limit restrictions set forward above in paragraph (1) of this subsection. sec.165.63. Data Collection.
                                                Each Community Supervision and Corrections Department (CSCD) shall provide to the Community Justice Assistance Division (CJAD) data relating to the performance factors on each county within the CSCD's jurisdiction. The data is to be reported to CJAD by CSCD in a format determined by CJAD, using definitions for the data elements provided by CJAD. The data reported is to be on the most recent state fiscal year. The CSCD shall report the data for the performance factors to CJAD not later than October 1 of each year, except for the data reported during fiscal year 1992. sec.165.64. County Plan Submission Requirements. (a) Documentation that funds will be used for permissible and required purposes. Each county participating in the performance rewards program is required to submit a plan, including a budget schedule, to the Community Justice Assistance Division (CJAD) indicating that program funding will be used in conformity with statutory mandates. The Texas Code of Criminal Procedure, Article 42.13, sec.13, requires that at least 25% of all performance reward funding be spent on payment for substance abuse prevention and treatment programs. The statute also provides that performance reward funding may also be used for the following: (1) any purpose for which state aid may be used under the Texas Code of Criminal Procedure, Article 42.13, sec.11(b); (2) implementation of the community justice plan for that county; or (3) any program serving the criminal justice needs of the county, including certified programs for youthful offenders. An "eligible program" must be in compliance with all of the terms and conditions of these Performance Reward Program regulations. (b) Requirements as to plan preparation and submission. To be eligible for funding, a county plan must be prepared and submitted in conformity with the following requirements. (1) The commissioners court of the county must submit to CJAD annually a resolution adopted by the commissioners court which states the county's agreement to participate in the performance reward program under the rules of the performance reward program as adopted by the board, and must name a person designated as the chief fiscal officer for the county to oversee the financial records of the county with respect to the performance reward program. The resolution must be received by CJAD no later than September 1 of each year; except during state fiscal year 1992, when the deadline is December 18, 1991. (2) The county judge or his designee shall prepare the county plan and budget schedule, using formats provided by CJID, which indicate the manner in which performance rewards shall be used. The county judge shall be the individual, on behalf of the county, to submit the county plan and budget schedule and any reports to CJAD. County plans shall be received by CJAD no later than December 1 of each year; except for state fiscal year 1992, when the deadline for submission is January 31, 1992. (3) Participating counties must comply with the Texas Code of Criminal Procedure, Article 60.14 (as promulgated in House Bill 93, during the Second Called Session of the 72nd Legislature), which requires that the county "take all action necessary to provide the Texas Department of Criminal Justice and the Department of Public Safety any criminal history records maintained by the county in the manner specified for purposes of those departments." sec.165.65. Rules Governing Program Accountability and Audits. (a) The Community Justice Assistance Division (CJAD) may withhold or delay payments to a county participating in the performance reward program, if CJAD determines the county is not in compliance with any or all of the regulations pertaining to the performance reward program. (b) Counties receiving performance reward funds shall deposit those funds in a special fund of the county treasury to be used solely for the purposes of implementing the county's plan under the performance reward program. (c) Counties participating in the performance reward program shall expend performance reward funds on those priority expenditure categories determined allowable by CJAD, before making other expenditures. The CJAD shall make available to eligible counties a list of allowable priority expenditure categories at the time it supplies the eligible counties with the format for the county plan and budget schedule. Counties who wish to make expenditures outside the list of allowable priority expenditures must first seek approval from CJAD, before making the expenditures. (d) Performance reward funds may be used to expand existing programs, but shall not be expended to duplicate or supplant existing programs in the county. (e) Counties participating in the performance reward program and receiving performance reward funds shall make quarterly financial and program status reports to CJAD. The specific formats and deadlines for submission of the quarterly reports are to be determined by CJAD and communicated to the participating counties within 15 working days after CJAD has completed processing the first quarter payment of performance reward funds to the participating counties. The CJAD reserves the right to require the counties participating in the performance reward program to submit any additional reports or information the board or CJAD deems appropriate. (f) Counties participating in and receiving performance reward program funds shall make their financial records of transactions involving performance reward funds available to representatives of the Texas Department of Criminal justice (TDCJ) for financial audit purposes. Counties participating and receiving performance reward program funds shall make available to representatives of CJAD and TDCJ access to those programs and their records funded under the performance reward program in the county for the purposes of program monitoring and evaluation. sec.165.66. Program Evaluation Standards. (a) To be eligible for funding, a program must meet the following performance review standards of the Community Justice Assistance Division (CJAD). These standards, which are stated in greater detail in program documents which will be supplied by CJAD, include the following elements. (1) The program description must be supported by data which demonstrates direct linkage to impacting jail and prison commitments, and must be written in concise and specific terms. (2) The target population must be identified in a way that reflects the profile of offenders sentenced to the Institutional Division or to a jail in that county. (3) Proposed outcomes must be specific, applicable, measurable, and with stated time frames. The anticipated change in number of commitments should be reflected in this section. (4) Implementation strategies must describe step-by-step program operations with stated time frames. (5) Evaluation methodologies must describe how the program's impact on the target population and the county's jail and prison commitments will be measured. (b) The CJAD reserves the right to accept, reject, or conditionally accept subject to modification the plans submitted. (c) The CJAD will notify counties of the its response to the county's plan not later than December 20 of each year, except for state fiscal year 1992. sec.165.67. Required Cooperation With Institutional Division Employees. Counties which fail to fully cooperate with the Institutional Division (ID) of the Texas Department of Criminal Justice (TDCJ) are subject to termination of program funding. Any of the following acts, if done knowingly and willfully by any elected official, agent, or employee of the county shall be grounds for termination of funding: (1) failure to refer candidates for release on parole from jail in the manner required under guidelines to be established by the board; or (2) failure to provide for each parole candidate a certified packet containing all documents the county would otherwise have been required to deliver to the director of the ID under the Texas Code of Criminal Procedure, Article 42.09, sec.8, plus three photographs and fingerprint cards; or (3) failure to hold parole candidates until the candidates are denied parole or released on parole, unless to do so would mean the county failed to use all admissions allocated to the county under the Government Code, sec.499.071 and the allocation formula adopted by the board in 37 TAC Chapter 152, et seq; or (4) failure to permit employees of TDCJ to have access to inmates or inmate records; or (5) failure to provide employees of TDCJ with sufficient space to conduct their evaluations. sec.165.68. Dispute Resolution Procedures. (a) These dispute resolution procedures shall not be regarded as "contested case" proceedings under the Texas Administrative Procedure Act. (b) If a staff member of the Texas Department of Criminal Justice believes that a county official, agent, or employee has knowingly committed any of the acts which are grounds for termination of funding, for failure to cooperate with the Institutional Division (ID), as set forward in sec.165.67 of this title (relating to Required Cooperation With Institutional Division Employees), that staff member shall contact the director of the ID or his designee. The director of the ID or his designee shall then contact the county judge or the chief district judge of the county alleged to be in violation to attempt to resolve the problem quickly and through informal means. (c) If the director of the ID or his designee cannot quickly resolve the problem, the county judge shall be given written notice that future program funding will be suspended until the problem is corrected. Said notice shall further advise the county judge of his right to make a formal appeal to the board, and to request a hearing before the board if the county deems such action to be necessary or appropriate. 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 December 11, 1991. TRD-9115598 Jackee Cox General Counsel Texas Department of Criminal Justice Earliest possible date of adoption: January 17, 1992 For further information, please call: (512) 463-9988 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 15. Medicaid Eligibility Subchapter D. Resources 40 TAC sec.15.430 The Texas Department of Human Services proposes new sec.15.430, concerning client participation in transfer of resources, in its Medicaid Eligibility chapter. The purpose of the new section is to clarify the effects of client knowledge and consent in the transfer of resources and to identify cases of possible financial exploitation for referral to adult protective services staff. Burton F. Raiford, interim 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. 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 the uniform, statewide application of the transfer policy. 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 Judy Coker at (512) 450-3227 in the Long Term Care Department. Comments on the proposal may be submitted to Nancy Murphy, Policy and Document Support-329, 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, Chapter 22, which authorizes the department to administer public assistance programs, and Chapter 32, which authorizes the department to administer medical assistance programs. sec.15.430. Client Participation in Transfer of Resources. (a) The department determines uncompensated value of transfers that are made by: (1) the client, his eligible spouse, or by anyone acting as the client's or eligible spouse's legal agent; that is, a guardian, a person holding power of attorney, or a parent of a minor child; (2) the community-based spouse to a third party after December 19, 1989; or (3) someone, other than those people specified in paragraphs (1)-(2) in this subsection, who has the client's tacit approval; tacit approval occurs when the client has expressed no objection to the transfer, either at the time it occurred or at the point the client became aware of it. (b) The department does not determine uncompensated value for transfers of resources made: (1) by an authorized co-signer other than the client, his eligible spouse, his community-based spouse in spousal impoverishment cases, or his legal representative; and the client has expressed objection to the transfer. The client's objection may have been expressed at the time of transfer or at the point the client became aware of the transfer if it occurred without his knowledge; (2) for purposes of redesignating a joint bank account to reflect true ownership of funds in disproval-of-ownership situations. (c) The department discusses the possibility of financial exploitation with Adult Protective Services (APS) when: (1) an ineligible co-owner removes the client's name from a certificate of title or other ownership document (including the signature card for a joint bank account) without the client's authorization; (2) the client has expressed objection to the transfer of property (or the withdrawal of funds) by an ineligible co-owner. The client's objection may have been expressed at the time of transfer, or at the point that the client became aware of the transfer if it occurred without his knowledge; (3) circumstances of the case indicate that the client's legal representative may have abused his powers in handling the client's funds. (d) The department documents the APS decision. This documentation may be used to support a determination of undue hardship or the fact that the transfer occurred without the client's knowledge and consent. An APS finding of financial exploitation is not a condition of nonparticipation except in situations involving transfers by the client's or the client's eligible spouse's legal representative. Criteria outlined in subsections (a)-(c) of this section are the primary considerations in establishing client participation or nonparticipation. Client participation does not preclude a finding of undue hardship. 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 December 9, 1991. TRD-9115473 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Proposed date of adoption: March 1, 1992 For further information, please call: (512) 450-3765