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 22. EXAMINING BOARDS
Part I. Texas Board of Architectural Examiners
Chapter 5. Interior Designers
Subchapter A. Scope; Definitions
22 TAC sec.sec.5.1-5.18
(Editor's Note: The Texas Board of Architectural Examiners 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 Board of Architectural Examiners proposes new  ssec.5.1-5.18, 
concerning the scope and definitions of the rules. These new sections explain 
the purpose and legal authority for the rules; the definitions for terms used in 
the rules; and, duties of the officers and board members.
Robert H. Norris, AIA, executive director, 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. Norris 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 clarity in the rules and assurance that the composition of 
the board is in compliance with state law. 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 Robert H. Norris, AIA, Executive 
Director, Texas Board of Architectural Examiners, 8213 Shoal Creek Boulevard, 
#107, Austin, Texas 78758, (512) 458-1363.
The new sections are proposed under Texas Civil Statutes, Article 249e, which 
provide the Texas Board of Architectural Examiners with the authority to 
promulgate rules.
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-9115646
Robert H. Norris, AIA
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: January 20, 1992
For further information, please call: (512) 458-1363
       
Subchapter B. Registration
22 TAC sec.sec.5.31-5.39
(Editor's Note: The Texas Board of Architectural Examiners 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 Board of Architectural Examiners proposes new  ssec.5.31-5.39, 
concerning the registration of applicants. These new sections explain the 
requirements and procedures for registration.
Robert H. Norris, AIA, executive director, 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. Norris 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 registration and regulation of interior designers in 
compliance with new state law. 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 Robert H. Norris, AIA, Executive 
Director, Texas Board of Architectural Examiners, 8213 Shoal Creek Boulevard, 
#107, Austin, Texas 78758, (512) 458-1363.
The new sections are proposed under Texas Civil Statutes, Article 249e, which 
provide the Texas Board of Architectural Examiners with the authority to 
promulgate rules.
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-9115647
Robert H. Norris, AIA
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: January 20, 1992
For further information, please call: (512) 458-1363
       
Subchapter C. Examinations
22 TAC sec.sec.5.51-5.60
(Editor's Note: The Texas Board of Architectural Examiners 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 Board of Architectural Examiners proposes new  ssec.5.51-5.60, 
concerning the examinations of applicants. These new sections explain the 
requirements and procedures for examinations.
Robert H. Norris, AIA, executive director, 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. Norris 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 assurance of a standard of competence of registered 
interior designers. 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 Robert H. Norris, AIA, Executive 
Director, Texas Board of Architectural Examiners, 8213 Shoal Creek Boulevard, 
#107, Austin, Texas 78758, (512) 458-1363.
The new sections are proposed under Texas Civil Statutes, Article 249e, which 
provide the Texas Board of Architectural Examiners with the authority to 
promulgate rules.
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-9115648
Robert H. Norris, AIA
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: January 20, 1992
For further information, please call: (512) 458-1363
       
Subchapter D. Certification and Annual Registration
22 TAC sec.sec.5.71-5.80
(Editor's Note: The Texas Board of Architectural Examiners 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 Board of Architectural Examiners proposes new  ssec.5.71-5.80, 
concerning certification and annual registration. These new sections explain the 
requirements and procedures regarding certification and annual registration.
Robert H. Norris, AIA, executive director, 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. Norris 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 a procedural explanation of the certification and annual 
registration of interior designers. 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 Robert H. Norris, AIA, Executive 
Director, Texas Board of Architectural Examiners, 8213 Shoal Creek Boulevard, 
#107, Austin, Texas 78758, (512) 458-1363.
The new sections are proposed under Texas Civil Statutes, Article 249e 27>, 
which provide the Texas Board of Architectural Examiners with the authority to 
promulgate rules.
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-9115649
Robert H. Norris, AIA
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: January 20, 1992
For further information, please call: (512) 458-1363
       
Subchapter E. Fees
22 TAC sec.sec.5.91-5.99
(Editor's Note: The Texas Board of Architectural Examiners 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 Board of Architectural Examiners proposes new  ssec.5.91-5.99, 
concerning fees. These new sections describe the fees and related procedures 
regarding registration of interior designers.
Robert H. Norris, AIA, executive director, 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. Norris 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 cost recovery from those whose registration services are 
performed by the board. 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 as follows:
[graphic]
Comments on the proposal may be submitted to Robert H. Norris, AIA, Executive 
Director, Texas Board of Architectural Examiners, 8213 Shoal Creek Boulevard, 
#107, Austin, Texas 78758, (512) 458-1363.
The new sections are proposed under Texas Civil Statutes, Article 249e, which 
provide the Texas Board of Architectural Examiners with the authority to 
promulgate rules.
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-9115650
Robert H. Norris, AIA
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: January 20, 1992
For further information, please call: (512) 458-1363
       
Subchapter F. The Interior Designer's Seal
22 TAC sec.sec.5.111-5.114
(Editor's Note: The Texas Board of Architectural Examiners 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 Board of Architectural Examiners proposes new  ssec.5.111-5.114, 
concerning the interior designer's seal. These new sections set forth the 
requirements and procedures regarding the design and use of the interior 
designer seal.
Robert H. Norris, AIA, executive director, 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. Norris 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 a procedure for identifying professional documents prepared 
under the supervision of an interior designer. 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 $25 for fiscal year 1992. There will be no 
economic cost to persons in fiscal years 1993-1996.
Comments on the proposal may be submitted to Robert H. Norris, AIA, Executive 
Director, Texas Board of Architectural Examiners, 8213 Shoal Creek Boulevard, 
#107, Austin, Texas 78758, (512) 458-1363.
The new sections are proposed under Texas Civil Statutes, Article 249e, which 
provide the Texas Board of Architectural Examiners with the authority to 
promulgate rules.
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-9115651
Robert H. Norris, AIA
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: January 20, 1992
For further information, please call: (512) 458-1363
       
Subchapter G. Titles and Firm Names
22 TAC sec.5.131, sec.5.132
(Editor's Note: The Texas Board of Architectural Examiners 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 Board of Architectural Examiners proposes new  s5.131 and sec.5. 132, 
concerning titles and authority for practice. These new sections proclaim the 
legal use of professional title and the performance of professional services.
Robert H. Norris, AIA, executive director, 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. Norris 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 clarify the conditions under which interior design 
services may be offered or performed. 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 Robert H. Norris, AIA, Executive 
Director, Texas Board of Architectural Examiners, 8213 Shoal Creek Boulevard, 
#107, Austin, Texas 78758, (512) 458-1363.
The new sections are proposed under Texas Civil Statutes, Article 249e, which 
provide the Texas Board of Architectural Examiners with the authority to 
promulgate rules.
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-9115652
Robert H. Norris, AIA
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: January 20, 1992
For further information, please call: (512) 458-1363
       
Subchapter H. Rules of Conduct
22 TAC sec.sec.5.151-5.156
(Editor's Note: The Texas Board of Architectural Examiners 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 Board of Architectural Examiners proposes new  ssec.5.151-5.156, 
concerning the rules of conduct. These new sections provide guidelines for the 
performance of professional services by interior designers.
Robert H. Norris, AIA, executive director, 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. Norris 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 a clearer understanding of standards of professional 
performance regulated by the board and the procedures followed when 
investigating a complaint of alleged violation of those standards by an interior 
designer. 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 Robert H. Norris, AIA, Executive 
Director, Texas Board of Architectural Examiners, 8213 Shoal Creek Boulevard, 
#107, Austin, Texas 78758, (512) 458-1363.
The new sections are proposed under Texas Civil Statutes, Article 249e, which 
provide the Texas Board of Architectural Examiners with the authority to 
promulgate rules.
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-9115653
Robert H. Norris, AIA
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: January 20, 1992
For further information, please call: (512) 458-1363
       
Subchapter I. Charges Against Interior Designers: Action
22 TAC sec.sec.5.171-5.187
(Editor's Note: The Texas Board of Architectural Examiners 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 Board of Architectural Examiners proposes new  ssec.5.171-5.187, 
concerning compliant procedures relating to interior designers. These new 
sections define complaints and the procedures to implement enforcement of the 
law.
Robert H. Norris, AIA, executive director, 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. Norris 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 a clearer understanding of the disciplinary actions 
available to the board and the procedures to be followed when determining 
whether disciplinary action is warranted. 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 Robert H. Norris, AIA, Executive 
Director, Texas Board of Architectural Examiners, 8213 Shoal Creek Boulevard, 
#107, Austin, Texas 78758, (512) 458-1363.
The new sections are proposed under Texas Civil Statutes, Article 249e, which 
provide the Texas Board of Architectural Examiners with the authority to 
promulgate rules.
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-9115654
Robert H. Norris, AIA
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: January 20, 1992
For further information, please call: (512) 458-1363
       
Subchapter J. Violations by Unregistered Persons
22 TAC sec.sec.5.201-5.205
(Editor's Note: The Texas Board of Architectural Examiners 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 Board of Architectural Examiners proposes new  ssec.5.201-5.205, 
concerning complaint procedures relating to unregistered persons. These new 
sections describe the authority and procedures of the board to enforce alleged 
violations of the interior designer registration law by unregistered persons.
Robert H. Norris, AIA, executive director, 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. Norris 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 a clearer understanding of the scope of authority and 
procedures to be followed by the board when enforcing complaints of alleged 
violations of the interior designer registration law by unregistered persons. 
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 Robert H. Norris, AIA, Executive 
Director, Texas Board of Architectural Examiners, 8213 Shoal Creek Boulevard, 
#107, Austin, Texas 78758, (512) 458-1363.
The new sections are proposed under Texas Civil Statutes, Article 249e, which 
provide the Texas Board of Architectural Examiners with the authority to 
promulgate rules.
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-9115655
Robert H. Norris, AIA
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: January 20, 1992
For further information, please call: (512) 458-1363
       
Part VI. Texas State Board of Registration for Professional Engineers
Chapter 131. Practice and Procedure
Application for Registration
22 TAC sec.sec.131.53, 131.55, 131.57, 131.58
The Texas State Board of Registration for Professional Engineers proposes 
amendments to sec.sec.131.53, 131.55, 131.57, and 131.58, concerning application 
for registration.
The amendments to sec.sec.131.53, 131.57, and 131.58 provide consistency with 
the language contained in the Texas Engineering Practice Act when referring to 
the registration fee. Section 131.55 is amended to require an applicant 
registered in another country as either a chartered engineer or a professional 
engineer to submit documents substantiating the registration.
Charles E. Nemir, P.E., executive director, 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. Nemir 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 consistency in the terminology between the Act and board 
rules and clarification of the registration requirements for applicants from 
other countries. There will be no effect on small businesses as a result of 
enforcing the sections. 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 Charles E. Nemir, P.E., Executive 
Director, Texas State Board of Registration for Professional Engineers, P.O. 
Drawer 18329, Austin, Texas 78760.
The amendments are proposed under Texas Civil Statutes, Article 3271a, sec.8(a) 
, which provide the board with the authority to make and enforce all rules and 
regulations necessary for the performance of its duties.
sec.131.53. Submission of Applications. Applications for registration will be 
submitted to the executive director. An application for registration shall be 
deemed submitted to the executive director when the application form, 
accompanied by the fee required by statute or board rule, is actually received 
at the board office. Incomplete application forms or forms not accompanied by 
the proper fee shall be returned to the applicant. When an application is 
accepted by the executive director and entered into the records of the board, 
the executive director shall send a receipt for the fee. Once an application is 
accepted and entered into the records of the board, the <nl>registration <ol> 
[application] fee will not be returned and the application, together with all 
pertinent documents submitted, will become a part of the permanent records of 
the board.
sec.131.55. Application for Registration from Nonresidents. <ol> In general, 
applicants not residents of Texas must apply under the provisions of the Texas 
Engineering Practice Act (the Act), sec.21. To be eligible under sec.21, the 
applicant must be registered and in good standing in the state in which he is 
practicing or formerly practiced, and the applicant must have met the 
requirements for registration under the Act, sec.12(a) or (b), at the time he 
was granted an original registration. In addition, the application shall include 
all documentation as described in sec.131.54 of this title (relating to General 
Application Information) to be considered complete. If the applicant is 
currently registered in the state of his residence or practice but registration 
was granted under requirements less than those specified in the Act, sec.12(a) 
or (b), he may apply under  s12(a) or (b), whichever is appropriate, if he has 
acquired the minimum requirements subsequent to his original registration.
(1)-(2) (No change.)
(3) A nonresident applicant or others applying under the Act, sec.21, must 
furnish with the application a copy of the pocket card or other verification 
that the licenses in the state of original registration or state of residency 
and other states (no more than two pocket cards are required) are current and 
valid and, in addition, include with the application copies of proof or 
verification that the applicant has taken and passed the engineering 
examinations. <nl>If the applicant is registered as a chartered engineer or a 
professional engineer in another country, documents must be provided showing 
that such person is a chartered engineer or professional engineer, the status of 
the person (corporate member, graduate member, etc.), the date of registration, 
and a statement that the membership is current and valid, inactive, or expired.
sec.131.57. <nl>Registration  [Application] Fee.
<nl>(a)  Registration<ol> [Application] fees shall be payable to the 
professional engineers' fund. The board assumes no responsibility for loss in 
transit of cash remittances. Applications not accompanied by the proper fee will 
be returned to the applicant. Personal, company, or other checks are acceptable 
if drawn on a United States bank payable in United States currency without 
penalty.
<nl>(b)<ol>[(1)] An application for registration as a professional engineer 
under the Act, sec.12(a), (b), or sec.21 shall be accompanied by a fee of $50 
<nl>plus any additional fee required by the Act <ol>, which shall be retained by 
the board regardless of whether the application is approved, not approved, 
rejected, or withdrawn.
[(2) When an application has been approved and the applicant is registered by 
the board and issued a certificate of registration, the fee which accompanied 
the application for registration will be applied toward the required 
registration fee of $50.]
sec.131.58. Withdrawing Applications.
(a)-(c) (No change.)
(d) An application withdrawn from consideration by action of the board will be 
so designated on the records of the board and made a part of the minutes of the 
next regular board meeting. The application itself together with the 
<nl>registration <ol> [application] fee will be retained by the board. Further 
action by the applicant to become registered will require a new application and 
<nl>registration<ol> [application] fee under the requirements in effect at the 
time of the new submittal.
(e) (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 11, 1991.
TRD-9115669
Charles E. Nemir, P.E.
Executive Director
Texas State Board of Registration for Professional Engineers
Proposed date of adoption: January 22, 1992
For further information, please call: (512) 440-7723
       
Examinations
22 TAC sec.131.101, sec.131.104
The Texas State Board of Registration for Professional Engineers proposes 
amendments to sec.131.101 and sec.131.104, concerning examinations.
The amendment to sec.131.101(b)(2) will require an applicant who is requesting 
an exemption from one or both of the examinations based on 20 or more years of 
outstanding technical achievement and widespread professional recognition to 
appear before the board for a personal interview. Section 131.101(d)(2) as 
amended will require applicants applying under the Texas Engineering Practice 
Act, sec.21 to pass the principles and practice of engineering examination on 
the first attempt if the examination is required for registration. The amendment 
to sec.131.104 will allow an individual to renew an engineer-in-training 
certificate one time upon the approval of the board.
Charles E. Nemir, P.E., executive director, 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. Nemir 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 clear and concise examination procedures and the ability 
for an engineer-in-training to renew the certificate. 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 Charles E. Nemir, P.E., Executive 
Director, Texas State Board of Registration for Professional Engineers, P.O. 
Drawer 18329, Austin, Texas 78760.
The amendments are proposed under Texas Civil Statutes, Articles 3271a, 
sec.8(a), which provide the board with the authority to make and enforce all 
rules and regulations necessary for the performance of its duties.\
sec.131.101. Engineering Examinations.
(a) (No change.)
(b) Individuals may be exempt from one or both of the written examinations for 
the following reasons.
(1) (No change.)
(2) Individuals who have 20 or more years of outstanding technical achievement 
and widespread professional recognition in their field of engineering practice 
indicating competence in the engineering profession may be exempt from one or 
both of the examinations. A personal interview before the board  <nl>will<ol> 
[may] be required [at the request of the board].
(3)-(4) (No change.)
(c) (No change.)
(d) Individuals who have been approved to take the examinations will be advised 
of the first examination date for which they are eligible. The applicants must 
elect to start an examination schedule with either the first or second 
examination date for which they are eligible. Once started the schedule shall 
consist of consecutive examination dates not to exceed the following:
(1) (No change.)
(2) the number of examination dates, not to exceed three, required to pass the 
principles and practice <nl>of engineering<ol> examination  <nl>with the 
exception of those persons applying under the Act, sec.21 (those who are 
registered in another state or jurisdiction). Those persons must pass the 
principles and practice of engineering examination on the first attempt.
(e)-(i) (No change.)
sec.131.104. Engineer-in-Training Certificates. A certificate as an engineer-in-
training expired 12 years from the date appearing thereon. This certification 
does not entitle an individual to practice as a professional engineer. The fee 
for engineer-in-training certification will be established by the board. To 
become enrolled as an engineer-in-training, an individual who is eligible, as 
described in sec.131.103 of this title (relating to Engineer-in-Training), shall 
apply to the board for the certificate and pay the established fee. Although the 
certificate has an expiration date, the records of the board will indicate that 
an individual has passed the fundamentals of engineering examination and these 
records will be maintained in the file indefinitely and will be made available 
as requested by the individual or another licensing jurisdiction. <nl>The 
certificate may be renewed one time at the request of the individual provided 
the request is accompanied by an explanation for the reason of the renewal and 
such request is approved by the board.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on December 11, 1991.
TRD-9115670
Charles E. Nemir, P.E.
Executive Director
Texas State Board of Registration
Proposed date of adoption: January 22, 1992
For further information, please call: (512) 440-7723
       
Registration
22 TAC sec.131.133
The Texas State Board of Registration for Professional Engineers proposes an 
amendment to sec.131.133, concerning certificates of registration.
The amendment adds control systems to the list of recognized branches of 
engineering under which applications for registration will be accepted and for 
which a principles and practice examination will be available from the National 
Council of Examiners for Engineering and Surveying.
Charles E. Nemir, P.E., executive director, has determined that for the first 
five-year period the section is in effect there will be no fiscal implications 
for state or local government as a result of enforcing or administering the 
section.
Mr. Nemir 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 recognition of control systems as an acceptable branch of 
engineering under which applications for registration may be submitted. There 
will be no effect on small businesses. There is no anticipated economic cost to 
persons who are required to comply with the section as proposed.
Comments on the proposal may be submitted to Charles E. Nemir, P.E., Executive 
Director, Texas State Board of Registration for Professional Engineers, P.O. 
Drawer 18329, Austin, Texas 78760.
The amendment is proposed under Texas Civil Statutes, Articles 3271a, sec.8(a), 
which provide the board with the authority to make and enforce all rules and 
regulations necessary for the performance of its duties.
sec.131.133. Certificates of Registration.
(a) (No change.)
(b) [Effective December 1, 1988, applications] <nl>Applications <ol> for 
registration will be accepted only for the branches of engineering for which 
there is an available principles and practice examination from the National 
Council of Examiners for Engineering and Surveying (NCEES), and the board 
records annotated with the corresponding alphabetical code as follows:
(1)-(4) (No change.)
<nl>(5) (X) control systems;
<nl>(6)<ol>[(5)] (E) electrical;
<nl>(7)<ol>[(6)] (H) fire protection;
<nl>(8)<ol>[(7)] (L) industrial;
<nl>(9)<ol>[(8)] (M) mechanical;
<nl>(10)<ol>[(9)] (I) mining/mineral;
<nl>(11)<ol>[(10)] (J) metallurgical;
<nl>(12)<ol>[(11)] (U) manufacturing;
<nl>(13)<ol>[(12)] (N) nuclear;
<nl>(14)<ol>[(13)] (P) petroleum;
<nl>(15)<ol>[(14)] (S) sanitary;
<nl>(16)<ol>[(15)] (B) structural.
(c)-(d) (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 13, 1991.
TRD-9115855
Charles E. Nemir, P.E.
Executive Director
Texas State Board of Registration
Proposed date of adoption: January 22, 1992
For further information, please call: (512) 440-7723
       
22 TAC sec.131.139
The Texas State Board of Registration for Professional Engineers proposes an 
amendment to sec.131.139, concerning reregistration.
The amendment deletes the erroneous language and stipulates that the board will 
recognize the successful passing of any examination previously required of an 
applicant for an original registration and who subsequently applies for 
reregistration.
Charles E. Nemir, P.E., executive director, has determined that for the first 
five-year period the section is in effect there will be no fiscal implications 
for state or local government as a result of enforcing or administering the 
section.
Mr. Nemir 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 clear and concise requirements for individuals who apply for 
reregistration. There will be no effect on small businesses. There is no 
anticipated economic cost to persons who are required to comply with the section 
as proposed.
Comments on the proposal may be submitted to Charles E. Nemir, P.E., Executive 
Director, Texas State Board of Registration for Professional Engineers, P.O. 
Drawer 18329, Austin, Texas 78760.
The amendment is proposed under Texas Civil Statutes, Articles 3271a, sec.8(a), 
which provide the board with the authority to make and enforce all rules and 
regulations necessary for the performance of its duties.
sec.131.139. Reregistration.
(a)-(b) (No change.)
(c) The board will:
(1) (No change.)
(2) recognize official board records which previously confirmed <nl>the<ol> [any 
approved engineering degrees and] successful passing of written examinations, as 
stipulated in the Act, sec.12(a) and (b).
(d)-(e) (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 11, 1991.
TRD-9115671
Charles E. Nemir, P.E.
Executive Director
Texas State Board of Registration
Proposed date of adoption: January 22, 1992
For further information, please call: (512) 440-7723
       
Part XXIII. Texas Real Estate Commission
Chapter 535. Provisions of the Real Estate License Act
Licensed Real Estate Inspectors
22 TAC sec.535.220
The Texas Real Estate Commission proposes new sec.535.220, concerning 
professional conduct and ethics for real estate inspectors.
The new section is necessary to establish guidelines for professional conduct 
and ethics for real estate inspectors, in their dealings with clients, the 
public, other inspectors and other professionals and related tradesmen. The new 
section would establish minimum guidelines to assist an inspector in maintaining 
standards of professionalism, independence, and fairness. With regard to an 
inspector's clients, the new section would encourage the inspector to protect 
and promote the interest of a client, to maintain and increase the inspector's 
level of knowledge and to conduct business in a manner that promotes fair and 
impartial inspections. With regard to the public, the new section would 
encourage inspectors to assist the general public in recognizing and 
understanding the need for inspections in the real estate transactions and to 
protect the public from fraud, misrepresentation, or unethical practices. With 
regard to other inspectors, the new section encourages fairness and integrity, 
including the reporting of possible violations to the commission. Cooperation 
with other professionals and related tradesmen is encouraged.
The new section has been developed and recommended for Texas Real Estate 
Commission Provisions of the adoption by the Texas Real Estate Inspector 
Committee, an advisory committee of inspectors created under the authority of 
Texas Civil Statutes, Article 6573a, sec.23.
Jack Morris, director of programs, 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. Morris 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 creation of ethical standards for real estate inspectors. 
There will be no anticipated cost for small businesses or any impact on local 
employment. 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 Jack Morris, Director of Programs, 
Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188. The new 
section is proposed under Texas Civil Statutes, Article 6573a, sec.5(h), which 
provide the Texas Real Estate Commission with the authority to make and enforce 
all rules and regulations necessary for the performance of its duties.
sec.535.220. Professional Conduct and Ethics.
(a) The responsibility of those persons who engage in the business of performing 
independent inspections of improvements in real estate transactions imposes 
integrity beyond that of a person involved in ordinary commerce. Each inspector 
must maintain a high standard of professionalism, independence, and fairness 
while performing inspections in a real estate transaction.
(b) The relationship between an inspector and a client should at a minimum meet 
the following guidelines.
(1) In accepting employment as an inspector, the inspector should protect and 
promote the interest of his client to the best of his ability and knowledge, 
recognizing that the client has placed his trust and confidence in the 
inspector.
(2) In the interest of his client and his profession, the inspector should 
endeavor always to maintain and increase his level of knowledge regarding new 
developments in the field of inspection.
(3) The inspector should conduct his business in a manner that will assure his 
client of the inspector's independence from outside influence and interests that 
might compromise his ability to render a fair and impartial opinion regarding 
any inspection performed.
(c) The relationship between an inspector and the public should at a minimum 
meet the following guidelines.
(1) The inspector should deal with the general public at all times and in all 
manners in a method that is conducive to the promotion of professionalism, 
independence, and fairness to himself, his business, and the inspection 
industry.
(2) The inspector should attempt to assist the general public in recognizing and 
understanding the need for inspections, whether the inspector is selected to 
perform such inspection or not.
(3) The inspector accepts the duty of protecting the public against fraud, 
misrepresentation, or unethical practices in the field of real estate 
inspections.
(d) The relationship of the inspector with another inspector should at a minimum 
meet the following guidelines.
(1) The inspector should bind himself to the duty of maintaining fairness and 
integrity in all dealings with other inspectors and other persons performing 
real estate inspections.
(2) The inspector should cooperate with other inspectors to insure the continued 
promotion of the high standards of the real estate inspection profession and 
pledges himself to the continued pursuit of increasing competence, fairness, 
education, and knowledge necessary to achieve the confidence of the public.
(3) If an inspector has knowledge of a possible violation of the rules of the 
Texas Real Estate Commission or Texas Civil Statutes, Article 6573a, sec.23, the 
inspector should report the possible violation to the Texas Real Estate 
Commission.
(e) The inspector should make a reasonable attempt to cooperate with other 
professionals and related tradesmen at all times and in all manners in a method 
that is conducive to the promotion of professionalism, independence, and 
fairness to himself, his business, and the inspection industry.
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-9115659
Mark A. Moseley
General Counsel
Texas Real Estate Commission
Earliest possible date of adoption: January 20, 1992
For further information, please call: (512) 465-3900
       
Part XXVII. Board of Tax Professional Examiners
Chapter 624. Education
22 TAC sec.sec.624.1-624.11
(Editor's Note: The Board of Tax Professional Examiners proposes for permanent 
adoption the new sections it adopts on an emergency basis in this issue. The 
text of the new sections are in the Emergency Rules section of this issue.)
The Board of Tax Professional Examiners proposes new sec. s624.1-624.11, 
concerning education. This action establishes rules for conduct of the education 
program for property tax officials required of them for certification under 
state law. This program was guided by rules of an agency that was abolished 
September 1, 1991, with responsibility transferred to this board.
Sam H. Smith, executive director, 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. Smith 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 improved education and training for property tax appraisers 
and assessor-collectors serving districts, cities, and counties, statewide. 
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 Sam H. Smith, 4301 Westbank Drive, 
Building B, Suite 140, Austin, Texas 78746-6565.
The new sections are proposed under the Property Tax Code, sec.5.05, which 
provides the Board of Tax Professional Examiners with the authority to develop 
curricula and supervise educational activities for property tax professionals.
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-9115667
Sam H. Smith
Executive Director
Board of Tax Professional Examiners
Earliest possible date of adoption: January 20, 1992
For further information, please call: (512) 329-7981
       
TITLE 25. HEALTH SERVICES
Part I. Texas Department of Health
Chapter 127. Registry for Providers of Health-Related Services
25 TAC sec.127.2, sec.127.4
The Texas Department of Health (department) proposes amendments to sec.127. 2 
and sec.127.4, concerning the registry for providers of health-related services. 
Section 127.2 covers approved occupations and sec.127.4 covers fees. The 
amendments will remove the occupation of dispensing opticians from the list of 
occupations approved by the Texas Board of Health under the Health and Safety 
Code, sec.12.014, to be placed on the registry. Section 12.014 law allows only 
providers who are not otherwise licensed, registered, or certified to be placed 
on the registry. Senate Bill 1123, 72nd Legislature, 1991 allows dispensing 
opticians to become registered by the department. Accordingly, it will no longer 
be necessary to have dispensing opticians on the registry. The amendments also 
include some editorial changes for clarification.
Mr. 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 to state government as a result of enforcing or administering the 
sections. The effect on state government for fiscal year 1992 will be the 
estimated loss in revenue of $12,780 and as well as a reduction in cost equal to 
$12,780 collected from opticians. There will be no fiscal implications to state 
government for fiscal years 1993-1996. There will be no effect on local 
government.
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 implement Senate Bill 1123. There will be no anticipated 
economic cost to persons who are required to comply with the sections as 
proposed. There will be no impact on local employment. There will be no cost to 
small business.
Comments on the proposal may be submitted to Becky Berryhill, Program 
Administrator, Professional Licensing and Certification Division, Texas 
Department of Health, Austin, Texas 78756-3183, (512) 459-2955. Comments will be 
accepted for 30 days after publication of the proposal in the Texas Register.
The amendments are proposed under the Health and Safety Code, sec.12.014, which 
provides the Texas Board of Health (board) with the authority to adopt rules 
establishing a registry of providers of health-related services; sec.12.001 
which provides the board with the authority to adopt rules for the performance 
of every duty imposed by law on the board, the department, and the commissioner 
of health; and Senate Bill 1123, sec.5, 72nd Legislature, 1991, which provides 
the department with the authority to adopt rules to register dispensing 
opticians. The amendments will affect the Health and Safety Code, sec.12.014, 
and Senate Bill 1123.
sec.127.2. Approved Occupations.
(a) The <nl>occupation of medical laboratory practitioner is<ol> [following 
occupations are] approved for inclusion on the registry [:]
[(1) dispensing optician; and
[(2)  medical laboratory practitioner].
(b) (No change.)
(c) A person placed on the registry may not represent in any manner that the 
person is licensed, certified, inspected or otherwise regulated by the <nl>Texas 
Department of Health<ol> <nl>( <ol>department<nl>)<ol>. A person in violation of 
this subsection may be referred to the appropriate governmental agency for 
action under the Deceptive Trade Practices Act<nl>, Business and Commerce Code, 
Chapter 17<ol> or other applicable law.
[(d) A dispensing optician is eligible for placement on the registry if the 
person is not licensed as an optometrist or physician and sells or delivers to 
the consumer fabricated and finished spectacle lenses, frames, contact lenses, 
or other ophthalmic devices prescribed by an optometrist or physician.]
<nl>(d)<ol>[(e)] A medical laboratory practitioner is eligible for placement on 
the registry if the person is a clinical laboratory director, a clinical 
laboratory supervisor, a medical technologist (clinical laboratory scientist), a 
medical laboratory technician (clinical technician), or any other individual who 
performs technical procedures in a clinical laboratory.
sec.127.4. Fees.
(a) The schedule of fees shall be as follows:
[(1) dispensing optician (initial application)-$30;]
<nl>(1)<ol>[(2)] medical laboratory practitioner (initial application) -$30; and
<nl>(2)<ol>[(3)] annual reapplication (any category)-$30.
(b)-(c)  (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 12, 1991.
TRD-9115746
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 145. Long-Term Care
Subchapter S. Minimum Licensing Standards for Personal Care Facilities
25 TAC sec.sec.145.321, 145.322, 145.324-145.327, 145.333
The Texas Department of Health (department) proposes amendments to 
sec.sec.145.321, 145.322, 145.324-145.327, and 145.333, concerning minimum 
licensing standards for personal care facilities. The amendments will implement 
Senate Bill 865, 72nd Legislature, 1991; update statutory references to the 
Health and Safety Code, Chapter 247; and to incorporate existing department 
policy concerning personal care facilities into the sections.
Stephen Seale, Chief Accountant III, Budget Office, has determined that for the 
first-five year period the sections are in effect there will be a fiscal impact 
on state government as a result of enforcing or administering the sections as 
proposed. The effect on state government will be an estimated expense of $3,100 
the first year to print and mail the translated resident's bill of rights 
document to each facility currently licensed (246 facilities) and an additional 
estimated expense of $76 each year thereafter to furnish each newly licensed 
facility the translated resident's bill of rights (estimated number of 
facilities newly licensed each year is 200).
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 that for residents, resident's families, and the providers, 
clarification of the licensing standards is provided to include legislative 
changes, current statutory references, and current policy interpretations. There 
is no anticipated cost to small or large businesses; no anticipated cost for the 
persons affected by this proposal; and no impact on local employment.
Comments on the proposal may be submitted to Janice Caldwell, Dr. P.H., Bureau 
of Long Term Care, Texas Department of Health, 1100 West 49th Street, Austin, 
Texas 78756-3185, at phone (512) 458-7709. Comments will be accepted for 30 days 
following the date of publication of this proposal in the Texas Register.
The amendments are proposed under the Health and Safety Code, sec.247.025, which 
provides the Board of Health (board) with the authority to rules personal care 
facilities; sec.12.001, which provides the board with the authority to adopt 
rules for the performance of every duty imposed by law on the board, the 
department, and the commissioner of health; and Senate Bill 865, Article II, 
72nd Legislature, 1991, which provides the department with the authority to 
develop a resident's bill of rights and a providers' bill of rights in personal 
care facilities.
sec.145.321. Purpose and Scope.
(a) The minimum licensing standards for personal care facilities are promulgated 
under the authority of the <nl>Health and Safety Code, Chapter 247<ol> [Personal 
Care Facility Licensing Act, Texas Civil Statutes, Article 4442c-4].
(b) A person or governmental unit, acting severally or jointly with any other 
person or governmental unit, may not establish or operate a personal care 
facility without a license issued under<nl> the Health and Safety Code, Chapter 
247 <ol> [Article 4442c-4].
(c)-(d) (No change.)
(e) The philosophy of personal care facilities is as follows.
(1) (No change.)
(2) A personal care facility covered by this subchapter includes an 
establishment, <nl>including a board and care home, that:<ol> [which] furnishes 
<nl>, in one or more facilities,<ol> [(in single or multiple facilities)] food 
and shelter to four or more persons <nl>who are <ol> unrelated to the proprietor 
<nl>of the establishment; and provides personal care services;<ol> and in 
addition, provides minor treatment under the direction and supervision of a 
physician licensed by the Texas State Board of Medical Examiners, or services 
which meet some need beyond basic provision of food, shelter, and laundry.
(3)-(5)  (No change.)
sec.145.322. Definitions.  The following words and terms, when used in this 
subchapter, shall have the following meanings, unless the context clearly 
indicates otherwise.
 Act-The Personal Care Facility Licensing Act, <nl>Health and Safety Code, 
Chapter 247<ol> [Texas Civil Statutes, Article 4442c-4].
 Attendants-<nl>Any individual who is providing service to the residents, <ol> 
[All staff persons or representatives who are responsible for direct personal 
services to residents] and can include, but <nl>is <ol> [are] not limited to 
aides, cooks, janitors, porters, maids, laundry workers, <nl>security personnel, 
bookkeepers, <ol> [and] managers <nl>,etc. as they also are of service to the 
residents. <ol> [if they are also functioning in direct personal services.]
 Facility-An institution coming under the scope of Personal Care Facility 
Licensing Act, <nl>Health and Safety Code, Chapter 247<ol>, [Texas Civil 
Statutes, Article 4442c-4], and furnishes room, board, and one or more services 
of a personal care or protective nature.
   <nl>Immediately available -The capability of facility staff to immediately 
respond to an emergency situation after being notified through a communication 
and/or alarm system. The staff is to be no more than 600 feet from the farthest 
resident.
sec.145.324. General Requirements.
(a)-(j) (No change.)
(k) In the event any facility licensed under the Personal Care Facility Act, 
<nl>Health and Safety Code, Chapter 247,<ol> [Texas Civil Statutes, Article 
4442c-4] ceases operation temporarily or permanently, voluntarily or 
involuntarily, notice <nl>of the closure<ol> shall be provided the residents and 
residents' relatives or responsible parties [of closure]. If the closure is 
voluntary, notice to residents' relatives or responsible parties shall be in 
writing, giving at least seven days' notice for relocation after receipt of 
notice. In involuntary closure actions, notices shall be provided as required 
within seven days of ownership's final decision to close. Written notice is 
waived for involuntary closure; however, the facility remains responsible for  
<nl>immediate<ol> verbal notice [immediately] to residents, relatives, or 
responsible parties.
(l)-(p) (No change.)
(q) Facilities serving the elderly or disabled are required by the Human 
Resources Code, Chapter 106, to request criminal conviction records of 
prospective employees effective September 1, 1989. The Department of Human 
Services will obtain criminal conviction records for facilities licensed by the 
licensing agency under Health and Safety Code, Chapter 242 or <nl>Chapter 
247<ol> [Texas Civil Statutes, Article 4442c-4].
(1)-(2) (No change.)
(r) (No change.)
sec.145.325. General Enforcement.
(a) The licensing agency or the licensing agency's representative may make any 
inspection or investigation that it considers necessary and may enter the 
premises of a personal care facility at any time day or night to make an 
inspection in accordance with board rules. The licensing agency is entitled to 
access books, records, and other documents maintained by or on behalf of a 
facility to the extent necessary to enforce the Personal Care Facility Act, 
<nl>Health and Safety Code, Chapter 247,<ol> [Texas Civil Statutes, Article 
4442c-4] and the rules adopted under this Act. A license holder or an applicant 
for a license is considered to have consented to entry and inspection of the 
facility by a representative of the licensing agency in accordance with this 
subchapter. The licensing agency is entitled to preserve all relevant evidence 
of conditions found during an inspection or investigation that the licensing 
agency reasonably believes threaten the health and safety of a resident, 
including photography and photocopying of relevant documents, such as a license 
holder's notes, etc. for use in any legal proceeding. When photographing a 
resident, the licensing agency shall respect the privacy of the resident to the 
greatest extent possible and may not make public the identity of the resident.
(b) (No change.)
sec.145.326. Administrative Management. The general requirements for application 
for a license shall be as follows.
(1) Application shall be made on a form or in a manner as determined by the 
licensing agency. The application is to be complete, signed by the owner in the 
presence of a notary public, and returned to the licensing agency with the 
following prerequisites.
(A) New facilities.
(i) The application shall include:
(I) a <nl>nonrefundable<ol> fee of $100 plus $3.00 for each bed space <nl>,with 
a maximum of $400,<ol> for which a license is sought. This fee shall be 
submitted in the form of a check or money order payable to the Texas Department 
of Health;
(II)-(VI) (No change.)
(ii)  (No change.)
(B) Change of ownership.
(i) The application shall include:
(I) a <nl>nonrefundable<ol> fee of $100 plus $3.00 for each bed space, <nl>with 
a maximum of $400,<ol> for which a license is sought. This fee shall be 
submitted in the form of a check or money order payable to the Texas Department 
of Health;
(II)-(IV) (No change.)
(ii) (No change.)
(C) Increase in bed capacity.
(i)  The applications shall include:
(I)-(II) (No change.)
(III) a <nl>nonrefundable<ol> fee of $3.00 for each bed space,<nl> with a 
maximum of $400,<ol> for which a license is sought. The fee shall be submitted 
in the form of a check or money order payable to the Texas Department of Health; 
and,
(IV) (No change.)
(ii)-(iii) (No change.)
(D) Renewal.
(i) The application shall include:
(I)  a <nl>nonrefundable<ol> fee of $100 plus $3.00 for each bed space <nl>, 
with a maximum of<ol>, $400 for which a license is sought. The fee shall be 
submitted in the form of a check or money order payable to the Texas Department 
of Health;
(II)-(III) (No change.)
(ii) (No change.)
(2)-(3) (No change.)
sec.145.327. Staffing.
(a) Manager.
(1)-(2) (No change. )
(3) The manager of a <nl>licensed<ol> [large Type A or Type B] facility shall 
show evidence of six hours of annual continuing education that includes <nl>at 
least <ol> one of the following areas:
<nl>(A)  resident and provider rights and responsibilities, abuse/neglect, and 
confidentiality;
<nl>(B)<ol>[(A)] basic principles of supervision;
<nl>(C)<ol>[(B)] <nl>skills for working with residents, families, and other 
professional service providers<ol> [interpersonal skills for dealing with 
residents and families];
<nl>(D)<ol>[(C)] resident characteristics and needs;
<nl>(E)<ol>[(D)] community resources; [or]
<nl>(F) <ol>[(E)] accounting and budgeting<nl>; or<ol> [.]
<nl>(G) basic emergency first aid (e.g., CPR, choking, etc.)
(4)-(5) (No change.)
(b) Attendants.
(1) There shall be an attendant <nl>(as defined by sec.145.322 of this title 
(relating to Definitions)<ol> in the facility at all times when residents are in 
the facility. Additionally, there shall be other attendant personnel as needed 
to maintain order, safety, and cleanliness; to assist with medication regimens; 
to prepare and service meals; assist with laundry; and to assure that each 
resident receives the kind and amount of supervision and care required to meet 
his basic needs.
(2)  The following staff-resident ratio shall be maintained in a Type A or Type 
B facility<nl>. The shift time designations in this section are for illustration 
purposes only. The facility management has the authority to use other shift 
designations to define day, evening, and night shift start and end times <ol>:
(A)-(B) (No change.)
(C) 11 p.m.-7 a.m. = 1 to 40
(i)  Type A facility: 11 p.m.-7 a.m. staff in a 40 or less licensed bed capacity 
facility only needs to be immediately available <nl>(as defined by 
sec.145.322).<ol> In a 41+ licensed bed capacity facility the staff must be 
awake; and
(ii) (No change.)
(D) (No change.)
(3) The attendants shall have the following knowledge prior to assuming 
responsibilities: needs of the resident(s) and tasks to be provided, resident's 
health conditions and how it may affect provision of tasks, [and] conditions 
about which the attendant should notify the facility manager<nl>, <ol>[.] 
<nl>and a job description.
sec.145.333. <nl>Resident's Bill of Rights and Provider Bill of Rights [Resident 
Rights].
<nl>(a) Resident's bill of rights.
<nl>(1) Each personal care facility shall post the resident's bill of rights, as 
provided by the licensing agency, in a prominent place in the facility and 
written in the primary language of each resident <ol>.
<nl>(2) <ol>[(a)] In addition to other rights a resident has as a citizen, a 
resident has the rights provided by this section.
<nl>(3) The resident's bill of rights must provide that each resident in the 
personal care facility has the right to:
<nl>(A)<ol>[(1) A resident may] not be physically or mentally abused or 
exploited<nl>;<ol>[.]
<nl>(B)<ol>[(2) A resident may] not be physically or chemically restrained 
unless the restraint:
<nl>(i)<ol>[(A)] is necessary in an emergency to protect the resident or others 
from injury after the individual harms or threatens to harm himself or another; 
or
<nl>(ii)<ol>[(B)] is authorized in writing by a physician for a limited and 
specified period of time<nl>;<ol>[.]
<nl>(C)<ol>[(3) A mentally retarded resident may]  <nl>if mentally retarded,<ol> 
participate in a behavior modification program involving use of restraints or 
adverse stimuli only with the informed consent of a guardian<nl>;<ol>[.]
<nl>(D)<ol>[(4)  A resident shall] be treated with respect, consideration, and 
recognition of <nl>his or her <ol> [the individual's] dignity and individuality. 
A resident shall receive personal care and private treatment  <nl>in a safe and 
decent living environment;<ol> [.]
<nl>(E)<ol>[(5) A resident may] not be denied appropriate care on the basis of 
<nl>his or her<ol> [the individual's] race,  <nl>religious practice<ol> 
[religion], color, national origin, sex, age, handicap, marital status, or 
source of payment<nl>; <ol>[.]
<nl>(F) <ol>[(6) A resident may] not be prohibited from communicating in  
<nl>his or her<ol> [the individual's] native language with other individuals or 
employees for the purpose of acquiring or providing any type of treatment, care, 
or services<nl>;<ol>[.]
<nl>(G)<ol>[(7) A resident is] be encouraged and assisted in <nl>the<ol> 
exercise of <nl>his or her<ol> [an individual's] rights. A resident may 
<nl>present grievances on behalf of the resident or others to the manager, state 
agencies, or other persons without threat of reprisal in any manner <ol> [voice 
grievance or recommend changes in policy or service without restraint, 
interference, coercion, discrimination, or reprisal]. The person providing 
services shall develop procedures for submitting complaints and recommendations 
by residents and for assuring a response by the person providing 
services<nl>;<ol>[.]
<nl>(H)<ol>[(8)] <nl>receive and send unopened mail <ol> [A resident may 
associate, communicate, and meet privately with other individuals unless to do 
so would infringe on the rights of other individuals. A resident's mail may not 
be opened by the facility unless authorized in writing by the resident] 
<nl>;<ol>[.]
<nl>(I)<ol>[(9)]  <nl>unrestricted communication, including personal visitation 
with any person of the resident's choice, including family members and 
representatives of advocacy groups and community service organizations, at any 
reasonable hour <ol> [A resident may participate in activities of social, 
religious, or community groups unless a physician determines that participation 
would harm the individual. The physician must record the determination in the 
resident's record] <nl>;<ol>[.]
<nl>(J) make contacts with the community and to achieve the highest level of 
independence, autonomy, and interaction with the community of which the resident 
is capable;
<nl>(K)<ol>[(10) A resident may manage his or her] <nl>manage his or her <ol> 
[personal] financial affairs, or shall be given at least a quarterly accounting 
of financial transactions made on his or her behalf by the facility should the 
facility accept his or her written delegation of this responsibility to the 
facility for any period of time in conformance with state law<nl>;<ol>[.]
<nl>(L)<ol>[(11)] <nl>have <ol> [A resident's records are] <nl>confidential 
records which cannot<ol> [and may not] be released without <nl>his or her <ol> 
[the resident's] written permission. A resident may inspect <nl>his or her <ol> 
[his/her] personal records maintained by the person providing 
services<nl>;<ol>[.]
<nl>(M)<ol>[(12)]  <nl>have the<ol> [A] person providing services [shall] answer 
[a resident's] questions concerning the resident's health, treatment, and 
condition unless a physician determines that the knowledge would harm the 
resident. The physician must record the determination in the resident's 
record<nl>; <ol>[.]
<nl>(N) <ol>[(13) A resident may] choose a personal physician<nl>;<ol>[.]
<nl>(O)<ol>[(14) A resident may] participate in planning <nl>his or her service 
plan<ol> [the resident's total care] and medical treatment<nl>; <ol>[.]
<nl>(P)<ol>[(15) A resident shall] be given the opportunity to refuse treatment 
after the possible consequences of refusing treatment are fully 
explained<nl>;<ol>[.]
<nl>(Q) unaccompanied access to a telephone at a reasonable hour or in case of 
an emergency or personal crisis;
<nl>(R) <ol>[(16)] <nl>privacy, (not a single bedroom) <ol> [If an area is 
available, a person providing services shall, on request, provide the resident 
with a private area to receive visitors. If the resident is married and the 
spouse is receiving similar services, the couple may share a room];
[(17) A resident's visitors may not be restricted unless a physician determines 
that a restrictions is medically necessary.
<nl>(S)<ol>[(18)  A resident may] retain personal clothing and possessions as 
space permits. The number of personal possessions may be limited for health and 
safety reasons which are documented in the resident's medical record. The number 
of personal possessions may be limited for the health and safety of other 
residents<nl>; <ol>[.]
<nl>(T) determine his or her dress, hair style, or other personal effects 
according to individual preference, except the resident has the responsibility 
to maintain personal hygiene;
<nl>(U) retain and use personal property in his or her immediate living quarters 
and to have an individual locked area (cabinet, closet, drawer, footlocker, 
etc.) in which to keep personal property;
<nl>(V)  [(19)] <nl>refuse to perform services for the facility, except as 
contracted for by the resident and operator <ol> [A person may not be required 
to perform services for the person providing services]<nl>;<ol>[.]
<nl>(W)<ol>[(20)] <nl>be informed, in writing, by the person providing services 
<ol> [A person providing services shall inform a resident in writing] of 
available services and the applicable charges if the services are not covered by 
Medicare, Medicaid, or other form of health insurance<nl>;<ol>[.]
<nl>(X)<ol>[(21) A person providing services may] not <nl>be transferred<ol> 
[transfer] or <nl>discharged <ol> [discharge a resident] unless:
<nl>(i)<ol>[(A)] the resident's medical needs require transfer;
<nl>(ii)<ol>[(B)] the resident's health and safety or the health and safety of 
another resident requires transfer or discharge;
<nl>(iii)<ol>[(C)] the resident fails to pay for services, except as prohibited 
by federal law; or
<nl>(iv)<ol>[(D)]  the resident repeatedly abuses alcohol, drugs, facility 
smoking regulations, or manifests severe and intentional anti-social behavior 
<nl>;<ol>[.]
<nl>(Y)<ol>[(22)] <nl>not be transferred or discharged, except in an emergency 
situation. The responsible party of the resident and the attending physician 
shall be notified immediately;<ol> [Except in an emergency situation, if a 
person providing services intends to transfer or discharge a resident, the 
person providing services shall notify the resident, the responsible party of 
the resident, and attending physician not later than five days before the date 
on which the individual will be transferred or discharged.]
<nl>(Z)  leave the facility temporarily or permanently, subject to contractual 
or financial obligations; and
<nl>(AA) not be deprived of any constitutional, civil, or legal right solely by 
reason of residence in a personal care facility.
<nl>(b)  Provider's bill of rights.<ol> [The facility shall provide each 
resident with a written list of the resident's rights and responsibilities 
before providing services or as soon after providing services as possible, and 
shall post the list in a conspicuous location. The facility providing the 
services must inform a resident of changes or revision in the list].
<nl>(1)  Each personal care facility shall post a provider's bill of rights in a 
prominent place in the facility. The provider's bill of rights must provide that 
a provider of personal care services has the right to:
<nl>(A) be shown consideration and respect that recognizes the dignity and 
individuality of the provider and personal care facility;
<nl>(B) terminate a resident's contract for just cause after a written 30-day 
notice;
<nl>(C)  terminate a contract immediately, after notice to the department, if 
the provider finds that a resident creates a serious or immediate threat to the 
health, safety, or welfare of other residents of the personal care facility;
<nl>(D) present grievances, file complaints, or provide information to state 
agencies or other persons without threat of reprisal or retaliation;
<nl>(E) refuse to perform services for the resident or the resident's family 
other than those contracted for by the resident and the provider;
<nl>(F) contract with the community to achieve the highest level of 
independence, autonomy, interaction, and services to the residents;
<nl>(G) have access to resident information concerning a client referred to the 
facility, which must remain confidential as provided by law;
<nl>(H) refuse a person referred to the facility if the referral is 
inappropriate;
<nl>(I) maintain an environment free of weapons and drugs; and
<nl>(J) be made aware of a resident's problems, including self-abuse, violent 
behavior, alcoholism, or drug abuse.
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-9115968
Robert A. MacLean, M.D.
Deputy Commissioner
Texas Department of Health
Proposed date of adoption: February 22, 1992
For further information, please call: (512) 458-7709
       
TITLE 28. INSURANCE
Part II. Texas Workers' Compensation Commission
Chapter 134. Benefits-Guidelines for Medical Services, Charges, and Payments.
Subchapter I. Provider Billing Procedures
28 TAC sec.sec.134.800-134.802
The Texas Workers' Compensation Commission proposes amendments to sec.sec.134. 
800-134.802, concerning health care provider billing. The amendments are needed 
to clarify procedure for submitting bills when an employer seeks to advance 
compensation for medical bills, under the Texas Workers' Compensation Act, 
sec.4. 06. Various technical amendments have also been proposed.
Section sec.134.800 is amended to delete subsection (a), relating to submitting 
bills for payment and sending information copies, in conjunction with 
transferring this subject matter to sec.134.801. The amendment also deletes the 
information items required to be included on bills, since such requirements now 
appear in the printed instructions accompanying the commission-prescribed forms.
Section 134.801 is amended to permit a health care provider to elect to submit a 
bill to an injured worker's employer in place of the workers' compensation 
insurance carrier, to establish that such an election constitutes waiver of 
certain statutory rights, to clarify the distinction between submitting a bill 
for payment and sending information copies, and to require the provider to send 
an information copy of a bill to the employer upon request, and to inscribe 
information copies with an explanatory statement.
Section 134.802 is amended to require the carrier to file with the commission 
copies of medical bills for which the carrier has reimbursed the payor, and to 
add two items of information to be included on medical bills filed with the 
commission.
Andrew Thigpen, associate director, financial management, has determined that 
for the first five-year period the amended sections are in effect the only 
fiscal implications for the state or local government will arise in their 
capacity as self-insured employers, and will be the minimal costs of postage and 
reproducing forms.
There is no anticipated impact on employment, locally or statewide, as a result 
of implementing the amendments as proposed.
Mr. Thigpen 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 implementation of the new Texas Workers' Compensation Act. 
Concerning effect on small businesses, pharmacists will incur minimal costs of 
purchasing or reproducing the commission-prescribed billing forms as a result of 
the amendment to sec.134.800. Health care providers will incur minimal costs for 
postage when providing the information copies of a bill to the employee, the 
employee's representative, the employer, or the commission as a result of the 
amendment to sec.134.801. Carriers will incur minimal costs for postage when 
filing copies of reimbursed bills with the commission. The cost of compliance 
for small businesses is proportionate to the cost of compliance for large 
businesses relative to market share. 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 Susan M. Kelley, General Counsel, 
Texas Workers' Compensation Commission, 4000 South IH-35, Austin, Texas 78704. 
Comments will be accepted for 30 days after publication of this proposal in the 
Texas Register.
The amendments are proposed under Texas Civil Statutes, Article 8308-2.09(a), 
which authorize the commission to adopt rules necessary to administer the Texas 
Workers' Compensation Act, and Article 8308-4.66(a), which authorize the 
commission to adopt rules concerning required reports and records to be filed by 
health care providers.
sec.134.800. Required Billing Forms and Information [Health Care Provider 
Billing].
[(a) All medical bills shall be submitted to the insurance carrier only. Upon 
request, a copy of the bill shall be sent at no charge to the employee, the 
employee's representative or the commission.
[(b) Rebilling by the health care provider shall include identical codes and 
charges as reflected on the original bill. The bill shall be clearly marked 
"rebill" and shall not include charges for new services.]
<nl>(a)<ol>[(c)] <nl> Except as provided by subsection (f) of this section 
medical <ol> [Medical] bills from all health care providers shall be 
<nl>submitted for payement on the forms prescribed in this section, prepared 
according to the commission-prescribed instructions accompanying each form.<ol> 
[in the form and manner prescribed by the commission and contain the following:
[(1) information required under sec.133.1 of this title (relating to Information 
Required in Communications);
[(2) date(s) of service provided;
[(3) specific diagnosis(es) with appropriate ICD-9-CM code(s);
[(4) itemized list(s) of procedures performed or services provided;
[(5) charge for each procedure performed or the service provided;
[(6) total charges billed; and
[(7) date of the billing.]
<nl>(b)<ol>[(d)]<nl> Except as provided in subsections (c) and (d) of this 
section, all health care providers, as defined in the Texas Workers' 
Compensation Act (the Act), Article 8308-1.03,<ol> [In addition to the 
information in subsection (c) of this section, doctors of medicine, osteopathic 
medicine, optometry, dentistry, podiatry, or chiropractic, and psychologists, 
physical therapists, occupational therapists, and ambulatory surgical centers, 
radiology centers, pathology centers, and emergency centers (other than 
hospital-based emergency centers)] shall submit bills using the national 
standard HCFA-1500 health insurance claim form<nl>, prepared according to the 
commission-prescribed instructions accompanying the form. <ol> [and include:
[(1) place of service;
[(2) procedure code(s) according to the fee guidelines established by the 
commission;
[(3) description of the service(s) provided;
[(4) unit(s) (or number) of service(s) or treatment(s); and
[(5) type of service.]
<nl>(c)<ol>[(e)]  Hospitals <nl>, including hospital-based emergency centers and 
ambulatory surgical centers<ol> shall[, in addition to the information in 
subsection (c) of this section,] include the revenue code and submit bills using 
the UB-82 billing form for institutional services and the national standard 
HCFA-1500 health insurance claim form for professional services<nl>, prepared 
according to the commission-prescribed instructions accompanying each form.
<nl>(d)<ol>[(f)]  Pharmacists shall submit bills <nl>using forms TWCC-66a or 
TWCC-66c, Statement for Pharmacy Services prepared according to the commission-
prescribed instructions accompanying each form.<ol> [in a form and manner 
prescribed by the commission, and include:
[(1) information required under sec.133.1 of this title (relating to Information 
Required in Communications);
[(2)  date(s) of service provided;
[(3) date of the billing;
[(4)  prescribing doctor's name and professional license number
[(5)  prescription number of each medication and the charge for each medication;
[(6) national drug code (NDC) of each medication;
[(7)  medication name and strength;
[(8) quantity of each medication dispensed;
[(9) estimated days' supply dispensed;
[(10) if the prescription is new or a refill supply; and
[(11) total charges billed.]
<nl>(e) Rebilling by the health care provider shall include identical codes and 
charges as reflected on the original bill. The bill shall be clearly marked 
"rebill" and shall not include charges for new services.
<nl>(f)<ol>[(g)] Health care providers not specifically noted in the preceding 
subsections of this section shall <nl>prepare and<ol> submit bills in a form and 
manner prescribed by the commission.
<nl>(g)<ol>[(h)]  The division of medical review will order the health care 
provider to reimburse a carrier when the health care provider is paid in excess 
of the amount allowed by the medical policies and fee guidelines established. A 
health care provider may request a review of those services and charges under 
the sec.8.26, no later than 10 days after the division of medical review orders 
the reimbursement.
sec.134.801. <nl>Submitting Bills for Payment: Information Copies [Submission of 
Health Care Provider Billing].
<nl>(a) Submitting bills for payment. The health care provider shall submit all 
medical bills to the insurance carrier. The provider may elect to submit bills 
to an employer who has indicated willingness to pay them.
<nl>(b) Waiver of rights. A provider who elects to submit bills to an employer 
waives, for the duration of the election period, the rights to:
<nl>(1) prompt payment, as provided by the Texas Workers' Compensation 
Commission Act (the Act), Article 8308-4.68;
<nl>(2) interest for delayed payment as provided by the Act Article 8308-8.27; 
and
<nl>(3)  commission-provided medical dispute resolution as provided by the Act, 
Article 8308-8.26.
<nl>(c)<ol>[(a)]<nl> Time for submission-health care practitioners. <ol> Health 
care practitioners (as defined in the Act, sec.1. 03(22)) shall submit to the 
carrier a properly completed bill within 15 days after the initial service or 
treatment date. Subsequent billing shall be at least monthly for services and 
treatments rendered.
<nl>(d)<ol>[(b)] <nl> Time for submission-health care facilities.<ol> For 
inpatient services, health care facilities (as defined in the Act, sec.1.03(21)) 
shall submit bills to the insurance carrier within 10 days after discharge, if 
the confinement is less than 30 days. If the confinement is greater than 30 
days, the facilities shall submit an interim bill within 45 days of admission 
and then at least every 30 days until discharge. The final bill shall be 
submitted within 10 days of discharge. For outpatient services, bills shall be 
submitted <nl>at least <ol> [on a] monthly [basis] to the insurance carrier.
<nl>(e) Providing information copies of bills. Upon request the provider shall 
send, at no cost, a copy of the bill, as submitted for payment, to the employee, 
the employee's representative, the employer, or the commission. Information 
copies shall state the following in bold type: "THIS IS ONLY AN INFORMATION 
COPY, IT IS NOT A REQUEST FOR PAYMENT."
sec.134.802. Insurance Carriers' Submission of Medical Bills to the Commission.
(a) Within 15 days after final payment of an original bill from a health care 
provider<nl>, or reimbursement to any person who has paid a health care 
provider's bill,<ol> insurance carriers shall submit a copy of the bill with the 
information described in subsections (c) and (d) of this section to the 
commission in Austin. Upon written approval by the commission, the insurance 
carrier may submit the information described in this rule electronically, in a 
form and format prescribed by the commission.
(b)-(c)  (No change.)
(d) In addition to the information in subsection (c) of this section, the 
insurance carrier shall include the following information for each service, 
treatment, or medication charged by the provider:
(1)-(6)  (No change.)
(7) the charge; [and]
(8) [if paid in full,] the date of reimbursement <nl>;
<nl>(9) amount paid: and
<nl>(10) exception code.
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-9115701
Susan M. Kelley
General Counsel
Texas Workers' Compensation Commission
Earliest possible date of adoption: January 20, 1992
For further information, please call: (512) 440-3972
       
TITLE 31. NATURAL RESOURCES AND CONSERVATION
Part II. Texas Parks and Wildlife Department
Chapter 55. Law Enforcement
Subchapter H. Special Game Warden Program
31 TAC sec.sec.55.401, 55.403, 55.405, 55.407, 55.409, 55.411
The Texas Parks and Wildlife Department proposes new regulations to implement a 
Special Game Warden Program under 31 TAC, Chapter 55, by adding Subchapter H, 
sec.sec.55.401, 55.403, 55.405, 55.407, 55.409, and 55.411 concerning a special 
law enforcement commission for honorably retired game wardens. The 72nd 
Legislature expanded the agency's regulatory authority to include a special game 
warden commission. House Bill 1578 amended the Texas Parks and Wildlife Code, 
Chapter 11, Subchapter H, to allow the director to commission honorably retired 
game wardens to perform law enforcement services under rules established by the 
commission. The amendments define the conditions of service, time frame of 
enforcement activities, and a bond requirement.
Robin Riechers, staff economist, has determined that for the first five-year 
period the rules are in effect, there will be no fiscal implications for state 
or local government as a result of enforcing or administering the rules.
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 
implementing these rules will provide a wider base for enforcing the Parks and 
Wildlife Code as well as other state statutes. There will be no effect on small 
businesses. There is no anticipated economic cost to persons who are required to 
comply with the rules 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 Wildlife Department, 4200 Smith 
School Road, Austin, Texas 78744, (512) 389-4845, or 1-(800)-792-1112, extension 
4845.
The new sections are proposed as a result of recent legislation which amended 
the Texas Parks and Wildlife Code, Chapter 11, Subchapter B, which authorizes 
the department to implement a Special Game Warden Program.
sec.55.401. Applicability.  These rules apply to all counties in Texas.
sec.55.403. Definitions.  The following words and terms, when used in this 
subchapter, shall have the following meanings, unless the context clearly 
indicates otherwise.
 Active status-The period of time when a Special Game Warden is commissioned, 
called to active service by the director, and compensated by the department.
 Inactive status -The period of time when a Special Game Warden is commissioned, 
but is not compensated by the department.
 Applicant-An individual who files an application for a Special Game Warden 
commission who has honorably retired with at least 20 years of service as a game 
warden of the Texas Parks and Wildlife Department and who has not retired as an 
option to involuntary dismissal for cause.
 Department-The Texas Parks and Wildlife Department.
 Director-Executive Director of the Texas Parks and Wildlife Department or 
his/her designee.
 Bond-A $2,500 bond executed by a surety company authorized to do business in 
this state that indemnifies all persons against damages resulting from an 
unlawful act of the Special Game Warden, and is payable to the department at the 
time the applicant receives the commission.
sec.55.405. Application for Special Game Warden Commission.
(a)  An applicant shall complete and place on file with the department an 
application packet on forms prescribed by the director. The application packet 
shall contain:
(1) a copy of his/her retirement documents;
(2)  an oath of office;
(3) a copy of the required surety bond.
(b)  Special game wardens shall not hold any other commission or office of trust 
that may conflict with any duty of a special game warden.
(c) Special game warden commissions shall expire on August 31 of each odd 
numbered year and may be renewed under conditions prescribed by the director.
sec.55.407. Duty Assignments.
(a) Special game wardens shall serve at the will of the director to the same 
extent as other game wardens commissioned under this subchapter.
(b) The director has authority over the law enforcement activities of special 
game wardens, regardless of whether a special game warden is on active or 
inactive status.
(c) The department shall assign special game wardens for duty in any area of the 
state, under the authority of the department's supervisory personnel in that 
area.
(d) Special game wardens shall comply with all components of the law enforcement 
division operating procedures and the department's personnel manual.
(e) While on inactive service, special game wardens may enforce laws authorized 
by the Parks and Wildlife Code, sec.11.0201(d), that are flagrant violations and 
occur in his/her presence when the violator and/or evidence may leave the scene.
(f) Special game wardens on active service may enforce any law authorized in the 
Parks and Wildlife Code, sec.11.0201(d), to the extent that a regular game 
warden may investigate and enforce.
(g)  While on active duty, special game warden shall wear the uniform prescribed 
for a regular game warden. While on inactive duty, special game wardens shall 
identify themselves with such badge, identification, and uniform as prescribed 
by the director at the time of commissioning.
sec.55.409. Compensation.
(a) Special game wardens on active service may be compensated not to exceed the 
salary of a Game Warden IV and may claim per diem or other expenses authorized 
by the director.
(b)  Special game wardens on inactive status may not be compensated by salary, 
but may claim per diem expenses for in-service training required by the Texas 
Commission on Law Enforcement Officer Standards and Education.
sec.55.411. Reports.
(a) Special game wardens shall submit activity reports, arrest reports, or any 
other report required within the same time period as a regular game warden.
(b) Special game wardens shall be evaluated annually with an evaluation report 
prescribed by the director and under the same conditions as a regular game 
warden.
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 16, 1991.
TRD-9115912
Paul M. Shinkawa
Director, Legal Services
Texas Parks and Wildlife Department
Earliest possible date of adoption: January 20, 1991
For further information, please call: 1-(800)-792-1112, ext. 4845, or (512) 389-
4845
       
Potentially Harmful Fish, Shellfish, and Aquatic Plants
31 TAC sec.sec.57.111-57.121
(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 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.57.111-57.121, concerning harmful or potentially harmful exotic fish, 
shellfish, and aquatic plants proclamation. Simultaneous with this repeal, new 
rules are being proposed for adoption that retains existing text but also 
permits the use of triploid (sterile) grass carp in private freshwaters to 
control nuisance vegetation. The repeal and new adoption rather than amending 
the existing rules is an aid to clarification and simplification of the rules.
Additionally, the repeal allows new proposed rules that adds one new oyster 
species to those listed as harmful or potentially harmful exotic shellfish; 
reduces the number of penaeid shrimp which may be possessed by a Fish Farmer to 
one specie of shrimp; implements a new disease certification requirement for 
exotic shellfish; and bighead carp are now grouped with other permitted exotic 
carp species.
Robin Riechers, staff economist, has determined that for the first five-year 
period the repeals are in effect there will be no fiscal implications for state 
or local government as a result of enforcing or administering the repeals.
Mr. Riechers, also has determined that for each year of the first five years the 
repeals are in effect the public benefit anticipated as a result of enforcing 
the repeals will be to adopt new rules that permit the use of triploid grass 
carp to control nuisance vegetation.
Additionally, the repeal allows new rules to incorporate restriction of a new 
oyster species, reduction of penaeid shrimp species that may be possessed, 
strengthening of criteria for disease certification, and grouping of the bighead 
carp will allow the department to apply greater control on harmful or 
potentially harmful exotic species within Texas. There will be no effect on 
small businesses. It is anticipated there will be no fiscal implications to 
persons who are required to comply with the repeal. The department has filed a 
local employment impact statement with the Texas Employment Commission in 
compliance with the Administrative Procedure and Texas Register Act, sec.4A and 
has not received a reply.
Comments on the repeal as proposed may be submitted to Philip Durocher, Inland 
Fisheries Branch Chief, Texas Parks and Wildlife Department, 4200 Smith School 
Road, Austin, Texas 78744; (512) 389-4860 or 1 (800) 792-1112, extension 4850.
The repeals are proposed under the Texas Parks and Wildlife Code, sec.66.007 and 
sec.66.015 and Agriculture Code,  s134.020, which authorizes the department to 
regulate exotic harmful or potentially harmful fish, shellfish, and aquatic 
plants.
sec.57.111. Definitions.
sec.57.112. General Rules.
sec.57.113. Exceptions.
sec.57.114. Transportation of Live Exotic Species.
sec.57.115. Exotic Species transport Invoice.
sec.57.116. Exotic Species Permit.
sec.57.117. Exotic Species Permit; Expiration and Renewal.
sec.57.118. Permit Denial.
sec.57.119. Appeal.
sec.57.120. Reports.
sec.57.121. Penalties.
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 16, 1991.
TRD-9115907
Paul M. Shinkawa
Director, Legal Services
Texas Parks and Wildlife Department
Earliest possible date of adoption: January 20, 1992
For further information, please call: 1-(800)-792-1112, ext. 4860 or (512) 389-
4860
       
<nl>Harmful or<ol> Potentially Harmful Fish, Shellfish, and Aquatic Plants
31 TAC sec.sec.57.111-57.130
The Texas Parks and Wildlife Commission proposes new 31 TAC sec.sec.57.111-57. 
130 concerning harmful or potentially harmful exotic fish, shellfish, and 
aquatic plants.
The proposed new rules permit introductions of triploid (sterile) grass carp to 
be utilized as a management tool in private freshwaters to control nuisance 
aquatic vegetation and add new regulations concerning use of exotic harmful or 
potentially harmful exotic fish and shellfish in fish farming activities.
New rules rather than amendments are being proposed to simplify, clarify, and 
reduce complexity of the text to the reader.
The proposed new rules allow, by permit only, the introduction of certified 
triploid grass carp in private waters. The proposed rules specify permit 
issuance requirements which allow possession of triploid grass carp in private 
waters. The rules also require proof of certification of triploidy by the United 
States Fish and Wildlife Service or this department. The rules allow the 
department to make random checks of private water stocking sites and specifies 
that certified triploids may be purchased in Texas only from holders of Exotic 
Species Permits. A permit processing fee to cover the costs of the program and 
to provide for management, review, and technical assistance to private pond 
owners needed as a result of the stockings is proposed.
Additionally, the new proposed rules add one new oyster species to those listed 
as harmful or potentially harmful exotic shellfish; reduces the number of 
penaeid shrimp which may be possessed by a Fish Farmer to one species of shrimp; 
implements a new disease certification requirement for exotic shellfish; set new 
fish farm design and construction requirement; set fees for processing Exotic 
Species permit applications; and provide regulation of bighead carp consistent 
with other carp species permitted for use in fish farming activities.
The release of large numbers of Penaeus vannamei into the Arroyo Colorado 
underscores the need for comprehensive regulation of exotic species in 
aquaculture operations. In that regard, new rules are proposed which 
substantively address release of exotic species into public waters and 
prevention of disease introductions.
Robin Riechers, staff economist, has determined that the first five-years the 
new rules are in effect there will be fiscal implications to state or local 
governments as a result of enforcing or administering the rules.
The fiscal implications to state government will be positive. The proposed new 
rules will permit this agency to collect fees for the importation and certifying 
of triploid grass carp. These fees will cover administrative costs of permitting 
and allow this department to expand its habitat (structure and vegetative 
balance) enhancement programs.
The department anticipates that this program will generate to this agency 
$550,000 during the first year and approximately $275,000 each succeeding year 
as a result of assessed fees for permits and fish. The proposed cost to a 
private pond operator is $15 per application for a Triploid Grass Carp Permit 
plus $2 per triploid grass carp requested. The department recommended stocking 
rate of triploid grass carp is anticipated to be between five and 10 fish per 
surface acre.
There will be no fiscal implications to local governments.
Fiscal implication for small businesses based on the triploid grass carp rules 
will be beneficial. Small businesses within the boundaries of Texas will benefit 
from the sale of triploid grass carp to stock private freshwater ponds.
Potentially there may be economic implications for small businesses as a result 
of further restrictions on exotic shrimp and oysters and the strengthening of 
the rules surrounding disease certification. However, no species of exotic 
shrimp defined as harmful or potentially harmful in these rules are currently in 
use by Texas fish farmers and department staff conducted in-depth meetings with 
Texas shrimp farmers prior to composition of new disease certification rules.
Mr. Riechers also has determined that for each of the first five-years the rules 
as proposed are in effect the public benefit anticipated as a result of 
enforcing the new rules as proposed is the control of nuisance vegetation 
through the use of a biological control agent as opposed to herbicides. Costs to 
the public could occur if triploid grass carp were to negatively affect habitat 
or ecosystems. However, the department will not issue Triploid Grass Carp 
Permits in areas where threatened or endangered aquatic plant or animal species 
habitat may be affected.
Additionally, restriction of a new oyster species, reduction of penaeid shrimp 
species that may be possessed, strengthening of criteria for disease 
certification, and grouping of the bighead carp will benefit the public by 
allowing the department to exercise greater control of harmful or potentially 
harmful exotic species within Texas.
It is anticipated there will be fiscal implications to persons who are required 
to comply with the rules as proposed. Fees will be assessed to the private pond 
operators both for the Triploid Grass Carp Permit and for the number of fish 
stocked.
The department has filed a local employment impact statement with the Texas 
Employment Commission in compliance with sec.4A of the Administrative Procedure 
and Texas Register Act but has not received a reply.
Comments on the new rules as proposed may be submitted to Philip Durocher, 
Inland Fisheries Branch Chief, Texas Parks and Wildlife Department, 4200 Smith 
School Road, Austin, Texas 78744, (512) 389-4860 or 1-(800)-792-1112, extension 
4860.
The new sections are proposed under the Texas Parks and Wildlife Code, 
sec.sec.11.027(b), 66.007, 66.015, and Agriculture Code, sec.134.020, which 
authorizes the department to regulate exotic harmful or potentially harmful 
fish, shellfish, and aquatic plants and to assess appropriate fees.
sec.57.111. Definitions.  The following words and terms, when used in these 
rules, shall have the following meanings unless the context clearly indicates 
otherwise.
 Aquaculture or fish farming-The business of producing and selling cultured 
species raised in private facilities.
 Cultured species -Aquatic plants or animals raised under conditions where at 
least a portion of their life cycle is controlled by an aquaculturist.
 Department-The Texas Parks and Wildlife Department or a designated employee of 
the department.
 Director-The Executive Director of the Texas Parks and Wildlife Department.
 Exotic species -A nonindigenous plant or animal not normally found in public 
water of this state.
 Fish farm-The property including all drainage ditches and private facilities 
from which cultured species are produced, propagated, transported or sold.
 Fish farm complex -A group of two or more separately owned fish farms located 
at a common site and sharing privately owned water diversion or drainage 
structures.
 Fish farmer-Any person engaged in aquaculture or fish farming.
 Grass carp-The species Ctenopharyngodon idella.
 Harmful or potentially harmful exotic fish-
(A)  Lampreys Family: Petromyzontidae-All species except Ichthyomyzon castaneus 
and I. gagei;
(B) Freshwater Stingrays Family: Potamotrygonidae-All Species;
(C) Arapaima Family: Osteoglossidae -Arapaima gigas;
(D) South American Pike Characoids Family: Characidae -All species of genus 
Acestrorhyncus;
(E) African Tiger Fishes Subfamily: Hydrocyninae-All species;
(F) Piranhas and Priambebus Subfamily: Serrasalminae -All Species;
(G) Rhaphiodontid Characoids Subfamily: Rhaphiodontinae -All species of genera 
Hydrolycus and Rhaphiodon (synonymous with Cynodon);
(H) Dourados Subfamily: Bryconinae-All species of genus Salminus;
(I) South American Tiger Fishes Family: Erythrinidae -All species;
(J) South American Pike Characoids Family: Ctenolucidae -All species of genera 
Ctenolucius and Luciocharax (synonymous with Boulengerella and Hydrocinus);
(K) African Pike Characoids Families: Hepsetidae Ichthyboridae -All species;
(L) Knifefishes Family: Gymnotidae-Gymnotus carapo;
(M) Electric Eels Family: Electrophoridae-Electrophorus electricus;
(N) Carps and Minnows Family: Cyprinidae-All species and hybrids of species of 
genera: Abramis, Aristichthys, Aspius, Aspiolucius, Blicca, Catla, Cirrhina, 
Ctenopharyngodon, Elopichthys, Hypophthalmichthys, Leucisus, Megalobrama, 
Mylopharyngodon, Parabramis, Pseudaspius, Rutilus, Scardinius, Thynnichthys, 
Tor, and the species Barbus tor (Synonymous with Barbus hexoagoniolepis);
(O) Walking Catfishes Family: Clariidae-All species;
(P) Electric Catfishes Family: Malapteruridae-All Species;
(Q) South American Parasitic Candiru Catfishes Subfamilies: Stegophilinae 
Vandelliinae-All species;
(R) Pike Killifish Family: Poeciliidae-Belonesox belizanus;
(S) Marine Stonefishes Family: Synanceiidae-All species;
(T) South American Pike Cichlids Family: Cichlidae -All species of genera 
Crenicichla and Batrachops;
(U) Tilapia Family: Cichlidae-All species of genus Tilapia (including 
Sarotherodon and Oreochromis);
(V) Asian Pikeheads Family: Luciocephalidae-All species;
(W) Snakeheads Family: Channidae-All species;
(X) Walleyes Family: Percidae-All species of the genus Stizostedion except 
Stizostedion vitreum and S. canadense;
(Y) Nile Perch Family: Centropomidae-All species of genera Lates and Luciolates;
(Z) Drums Family: Sciaenidae-All species of genus Cynoscion except Cynoscion 
nebulosus, C. nothus, and C. arenarius;
(AA) Whale Catfishes Family: Cetopsidae-All species;
(BB) Ruff Family: Percidae-All species of genus Gymnocephalus;
(CC) Air sac Catfishes Family: Heteropneustidae-All Species of genus 
Heteropneustes.
 Harmful or potentially harmful exotic shellfish-
(A)  Crayfishes Family: Parastacidae-All species of the genus Astacopsis;
(B) Mittencrabs Family: Grapsidae-All species of genus Eriocheir;
(C) Asian Clams Family: Corbiculidae-All species of genus Corbicula
(D) Giant Ram's-horn Snails Family: Piliidae (synonymous with Ampullariidae)-All 
species of genus Marisa;
(E) Zebra Mussels Family: Dreissenidae-All species of genus Dreissena;
(F) Penaeid Shrimp Family: Penaeidae-All species of genus Penaeus except P. 
setiferus P. aztecus and P. duorarum;
(G) Pacific Oyster Family: Ostreidae-Crassostrea gigas;
 Harmful or potentially harmful exotic plants-
(A)  Giant Duckweed Family: Lemnaceae-Spirodela oligorhiza;
(B)  Salvinia Family: Salviniaceae-All species of genus Salvinia;
(C)  Waterhyacinth Family: Pontederiaceae-Eichhornia crassipes;
(D)  Waterlettuce Family: Araceae-Pistia stratiotes;
(E) Hydrilla Family: Hydrocharitaceae-Hydrilla verticillata;
(F) Egeria Family: Hydrocharitaceae-Egeria densa;
(G) Lagarosiphon Family: Hydrocharitaceae-Lagarosiphon major;
(H) Eurasian Watermilfoil Family: Haloragaceae-Miyriophyllum spicatum;
(I) Alligatorweed Family: Amaranthaceae-Alternanthera philoxeroides;
(J) Rooted Waterhyacinth Family: Pontederiaceae-Eichhornia azurea;
(K) Paperbark Family: Myrtaceae-Melaleuca quinquenervia;
(L) Torpedograss Family: Gramineae-Panicum repens;
(M) Water spinach Family: Convolvulaceae-Ipomoea aquatica
 Nauplius or nauplii-A larval crustacean having no trunk segmentation and only 
three pairs of appendages.
 Operator-The person responsible for the overall operation of a wastewater 
treatment facility.
 Postlarvae-A juvenile crustacean having acquired a full complement of 
functional appendages.
 Private facility -A pond, tank, cage, or other structure capable of holding 
cultured species in confinement wholly within or on private land or water, or 
within or on permitted public land or water.
 Private facility effluent-Any and all water which has been used in aquaculture 
activities.
 Private pond-A pond, tank, lake, or other structure capable of holding fish 
species in confinement wholly within or on private land.
 Public waters-Bays, estuaries, and water of the Gulf of Mexico within the 
jurisdiction of the state, and the rivers, streams, creeks, bayous, reservoirs, 
lakes, and portions of those waters where public access is available without 
discrimination.
 Quarantine condition -Confinement of nauplii, postlarvae or adults of exotic 
shellfish such that neither the shellfish nor the water in which they are 
maintained comes into contact with other fish or shellfish.
 Triploid grass carp-A grass carp (Ctenopharyngodon idella) which has been 
certified by the United States Fish and Wildlife Service as having 72 
chromosomes and as being functionally sterile.
 Wastewater treatment facility-All contiguous land and fixtures, structures or 
appurtenances used for treating wastewater pursuant to a valid permit issued by 
the Texas Water Commission.
sec.57.112. General Rules.
(a) Scientific reclassification or change in nomenclature of taxa at any level 
in taxonomic hierarchy will not, in and of itself, result in redefinition of a 
harmful or potentially harmful exotic species.
(b) Except as provided in sec.57.113 of this title (relating to Exceptions), it 
is an offense for any person to release into public waters, import, sell, 
purchase, propagate or possess any species, hybrid of a species, subspecies, 
eggs, seeds, or any part of any species defined as harmful or potentially 
harmful exotic fish, shellfish, or aquatic plant.
(c)  Violation of any provision of a permit issued under these rules is a 
violation of these rules.
sec.57.113. Exceptions.
(a) A person who holds a valid scientific or zoological permit issued by the 
department may possess the exotic harmful or potentially harmful fish, 
shellfish, and aquatic plants as authorized in the permit.
(b) A person may possess exotic harmful or potentially harmful fish or shellfish 
without a permit if the intestines of the fish or shellfish have been removed.
(c) A fish farmer who holds a valid Exotic Species permit issued by the 
department may possess, propagate, transport, or sell silver carp, 
(Hypophthalmichthys molitrix), black carp (Mylopharyngodon piceus, also commonly 
known as snail carp), bighead carp (Aristichthys/Hypopthalmichthys nobilis), 
blue tilapia (Tilapia aurea), Mozambique tilapia (Tilapia mossambica), or 
hybrids between the two tilapia species as provided by conditions of the permit 
and these rules.
(d) A fish farmer who holds a valid Exotic Species permit issued by the 
department may possess, propagate, transport or sell Penaeus vannamei provided 
the exotic shellfish meet disease free certification requirements listed in 
sec.57.114 of this title (relating to Health Certification of Exotic Shellfish) 
and as provided by conditions of the permit and these rules.
(e) A fish farmer who holds a valid Exotic Species permit issued by the 
department may possess, transport, or sell triploid grass carp (Ctenopharyngodon 
idella) as provided by conditions of the permit and these rules.
(f) A wastewater treatment facility that holds a valid Exotic Species permit 
issued by the department may possess waterhyacinth (Eichornia crassipes) only 
for the purpose of wastewater treatment.
(g) A person may possess Mozambique tilapia in a private pond subject to 
compliance with sec.57.116(d) of this title (relating to Exotic Species 
Transport Invoice).
(h) The holder of a valid Triploid Grass Carp permit issued by the department 
may possess triploid grass carp only in a private pond as provided by conditions 
of the permit and these rules.
(i)  A licensed retail or wholesale fish dealer is not required to have an 
Exotic Species permit to purchase or possess live individuals of species or 
hybrids of species listed in subsection (c) of this section held in the place of 
business as defined in the Parks and Wildlife Code, sec.47.001(9), unless the 
retail or wholesale fish dealer propagates one or more of these species. 
However, such a dealer may sell or deliver these species to another person only 
if the intestines or head of the fish are removed.
(j) A person may possess species listed in subsections (c) and (d) of this 
section delivered as authorized in subsection (i) of this section only if such 
fish or shellfish are dead, packaged on ice, or frozen.
(k) A person may possess the hybrid grass carp (Ctenopharyngodon idella x 
Aristichthys/Hypophthalmichthys nobilis) if that person has documented evidence 
of possession prior to January 25, 1990, has provided such evidence to the 
department by May 1, 1990, and possesses acknowledgment of such evidence from 
the department by June 1, 1990. A person in possession of hybrid grass carp on 
January 25, 1990, shall not replace or supplement hybrid grass carp. This 
subsection shall be in effect only until January 1, 1995.
sec.57.114. Health Certification of Exotic Shellfish.
(a) All disease free certification of exotic shellfish must be conducted by a 
shellfish disease specialist approved by the department.
(b) A fish farmer importing nauplii of exotic shellfish from facilities outside 
the state must provide documentation to the department, prior to importation of 
such nauplii, that the producing facility from which the nauplii are to be 
received has been certified as being free of disease.
(c) A fish farmer in possession of nauplii of exotic shellfish for the purpose 
of production of postlarvae must provide to the department monthly certification 
that such postlarvae have been examined and certified to be free of disease.
(d) Any shipment of exotic shellfish received by a fish farmer must be:
(1) certified as being disease free; and
(2) maintained under quarantine conditions until the department acknowledges 
that the additional stock is free of disease.
(e) Prior to removal of exotic shellfish from quarantine conditions, a fish 
farmer must have:
(1) obtained certification that any new shipment of exotic shellfish imported 
from outside the state have been examined and found to be free of disease;
(2) forwarded a copy of the disease free certification to the department; and
(3) received acknowledgement from the department that the shellfish stock is 
free of disease.
sec.57.115. Transportation of Live Exotic Species.
(a)  Transport of live harmful or potentially harmful exotic species is 
prohibited except by a licensed fish farmer or the operator of a wastewater 
treatment facility who has in immediate possession a valid Exotic Species 
permit, by a commercial shipper acting for the permit holder, or when 
transported between a warehouse and retail outlet within a company possessing a 
retail fish dealers license, and persons holding a valid zoological or 
scientific permit authorizing the transportation.
(b) Any person transporting live harmful or potentially harmful exotic species 
must have an Exotic Species Transport Invoice; except harmful or potentially 
harmful exotic species covered under zoological or scientific permits may be 
transported in compliance with rules governing zoological or scientific permits.
(c) A fish farmer transporting live triploid grass carp must have an Exotic 
Species Transport Invoice and a copy of the United States Fish and Wildlife 
Service certification declaring that the grass carp being transported have been 
certified as being triploid grass carp.
sec.57.116. Exotic Species Transport Invoice.
(a) An Exotic Species Transport Invoice shall contain all the following 
information correctly stated and legibly written: invoice number; date of 
shipment; name, address, and phone number of the shipper; name, address, and 
phone number of the receiver; Texas Fish Farmer's License number and Exotic 
Species permit number, if applicable; number and total weight of each harmful or 
potentially harmful exotic species; a check mark indicating interstate import, 
interstate export, or intrastate type of shipment. A completed invoice shall 
accompany each shipment of harmful or potentially harmful exotic species, and 
shall be sequentially numbered during the permit period; no invoice number shall 
be used more than once during any one permit period by the permittee.
(b) The Exotic Species Transport Invoice shall be provided by the permittee; one 
copy shall be retained by the permittee for a period of at least one year 
following shipping date.
(c) The permittee is responsible for supplying copies of the Exotic Species 
Transport Invoice to out-of-state dealers from which the permittee has ordered 
harmful or potentially harmful exotic species so that shipment will be properly 
marked and numbered upon delivery to the permittee in Texas.
(d) Owners, or their agents, of private ponds stocked with Mozambique tilapia or 
triploid grass carp by an Exotic Species permit holder shall retain a copy of 
the Exotic Species Transport Invoice for a period of one year after the stocking 
date or as long as the tilapia or triploid grass carp are in the water, 
whichever is longer.
sec.57.117. Exotic Species Permit; Fee and Application Requirements.
(a) The department shall charge a nonrefundable Exotic Species permit 
application fee as follows:
(1) application for new, renewed, or amended Exotic Species permit which 
requires facility inspection-$250;
(2)  application for renewed or amended Exotic Species permit requiring no 
facility inspection-$25.
(b) To be considered for an Exotic Species permit, the applicant shall:
(1) possess a valid Texas Fish Farmer's License or permit from the Texas Water 
Commission authorizing operation of a wastewater treatment facility;
(2) complete an initial Exotic Species permit application on a form provided by 
the department;
(3) submit this application to the department;
(4) submit an accurate-to-scale plat of the fish farm specifically including, 
but not limited to, location of:
(A) all private facilities including a designation on the plat of all private 
facilities which will be used for possession of harmful or potentially harmful 
exotic species;
(B) all structures which drain private facilities;
(C) all points at which private facility effluent is discharged from the private 
facilities or the fish farm;
(D) all structures designed to prevent discharge of harmful or potentially 
harmful species from the fish farm;
(E) any vats, raceways, or other structures to be used in holding harmful or 
potentially harmful exotic species;
(5)  demonstrate to the department that an existing fish farm or wastewater 
treatment facility meets requirements of  s57.129 of this title (relating to 
Exotic Species Permit; Private Facility Criteria);
(6) provide plans of sufficient detail to demonstrate that fish farms or 
wastewater treatment facilities in planning or construction will comply with the 
criteria listed in sec.57.129; and
(7) remit to the department all applicable fees.
(c) Applicants for an Exotic Species permit for culture of harmful or 
potentially harmful exotic shellfish must meet all Exotic Species permit 
application requirements and requirements for disease free certification as 
listed in sec.57.114 of this title (relating to Health Certification of Exotic 
Shellfish).
(d) An applicant for an Exotic Species permit shall provide documentation upon 
request from the department necessary to identify any harmful or potentially 
harmful exotic species for which a permit is sought.
(e)  An applicant for an Exotic Species permit shall allow inspection of their 
facilities by authorized employees of the department during normal business 
hours.
sec.57.118. Exotic Species Permit Issuance.
(a) The department may issue an Exotic Species permit only to a licensed fish 
farmer and only for species listed in sec.57.113(c), (d), and (e) of this title 
(relating to Exceptions) or to a wastewater treatment facility operator only for 
possession and use of waterhyacinth.
(b) The department may issue an Exotic Species permit upon a finding by the 
department that:
(1) all application requirements as set out in sec.57.117 of this title 
(relating to Exotic Species Permit; Fee and Application Requirements) have been 
met;
(2)  the fish farm operated by the applicant and named in the permit meets or 
will meet the design criteria listed in sec.57.129 of this title (relating to 
Exotic Species Permit; Private Facility Criteria); and
(3) the applicant has not violated any provision of the Parks and Wildlife Code, 
sec.66. 007, sec.66.015, or these rules during the one year period preceding the 
date of application.
(c) Permits issued for fish farms or wastewater treatment facilities under 
construction shall not authorize possession of harmful or potential harmful 
exotic fish, shellfish or aquatic plants until such time as the department has 
certified that the fish farm or wastewater treatment facility as-built meets the 
requirements in sec.57.129.
sec.57.119. Exotic Species Permit; Requirements for Permittee.
(a)  A copy of the Exotic Species permit shall be:
(1) made available for inspection upon request of authorized department 
personnel; and
(2)  kept on the premises of the fish farm or wastewater treatment facility 
named in the permit.
(b) Permittee must provide access to authorized department personnel during any 
hours in which operations pursuant to the Exotic Species Permit are ongoing.
(c) If a permittee discontinues fish farming of a permitted harmful or 
potentially harmful exotic species or discontinues wastewater treatment 
utilizing waterhyacinth, the permittee shall:
(1) immediately and lawfully, sell or destroy all remaining individuals of that 
species in possession; and
(2) notify the department's aquaculture coordinator at least 14 days prior to 
cessation of operation.
(d) A permittee shall provide an adequate number of fish, shellfish, or aquatic 
plants of the exotic species named in the permit application to authorized 
department employees upon request for identification and analyses.
(e) In the event that the fish farm or a wastewater treatment facility of a 
permit holder appears in imminent danger of overflow, flooding, or release of 
harmful or potentially harmful exotic fish, shellfish or aquatic plants into 
public water, the permittee shall destroy or harvest all permitted exotic 
harmful or potentially harmful fish, shellfish and aquatic plants to prevent 
their release. It is the responsibility of the permittee to have available 
sufficient quantity of biocide to destroy all harmful or potentially harmful 
exotic fish, shellfish and aquatic plants in danger of release. The biocide 
shall be registered with the Texas Department of Agriculture and used in 
accordance with label directions.
(f) Except in case of an emergency, a holder of an Exotic Species permit 
authorizing possession of Penaeus vannamei must notify the department at least 
72 hours prior to any harvesting of permitted adult shellfish. In an emergency 
beyond the control of the permittee, notification of harvest must be made as 
early as practicable prior to beginning of harvest operations.
(g) A holder of an Exotic Species permit authorizing possession of Penaeus 
vannamei may sell or transfer ownership of live P. vannamei only to the holder 
of a valid Exotic Species permit specifically authorizing possession of P. 
vannamei.
(h) Upon discovery of release or escapement of harmful or potentially harmful 
exotic fish or shellfish from the private facilities authorized in an Exotic 
Species Permit, the permittee must immediately halt discharge of all private 
facility effluent from the fish farm. If the permittee's fish farm is located 
within a fish farm complex, upon discovery or release or escapement of harmful 
or potentially harmful fish or shellfish from the permittee's fish farm, the 
permittee must immediately halt discharge of all private facility effluent from 
the fish farm complex.
(i) A holder of an Exotic Species permit must notify the department in the event 
of escapement or release of harmful or potentially harmful exotic fish or 
shellfish, within two hours of discovery.
(j)  All devices required in the Exotic Species permit for prevention of 
discharge of harmful or potentially harmful exotic fish, shellfish or aquatic 
plants must be in place and properly maintained at all times such species are in 
possession.
(k) All private facility effluent discharged from a fish farm holding exotic 
harmful or potentially harmful species must be routed such that all private 
facility effluent passes through all devices for prevention of discharge of such 
exotic species as required in the permit.
(l) A permittee must notify the department's aquaculture coordinator in the 
event of change of ownership of the fish farm named in that permittee's Exotic 
Species permit. Notification must be made within seven days of change in 
ownership.
(m) Permits are not transferable from site to site or from person to person.
sec.57.120. Exotic Species Permit; Expiration and Renewal.
(a)  Exotic Species permits required by these rules expire one year from date of 
issuance.
(b) The department may renew an Exotic Species permit upon finding that:
(1) the applicant has met application requirements in sec.57.117 of this title 
(relating to Exotic Species Permit; Fee and Application Requirements);
(2) the facility will meet all applicable facility design criteria listed in 
sec.57.129 of this title (relating to Exotic Species Permit; Private Facility 
Criteria); and
(3) the applicant has not violated any provision of the Parks and Wildlife Code, 
sec.66.007, sec.66.015, or these rules during the one year period preceding the 
date of agency action on the application for renewal;
(4) the applicant has submitted a renewal application and required annual report 
to the department not more than 60 days nor less than 30 days prior to the 
Exotic Species permit expiration.
(c)  Applicants seeking renewal of Exotic Species permits, including those 
issued prior to January 23, 1992, must meet all application requirements listed 
in sec.57.117 and facility design criteria listed in sec.57.129.
sec.57.121. Exotic Species Permit; Amendment.
(a) Exotic species permits may be amended upon a finding by the department that:
(1)  the applicant has not violated any provision of the Parks and Wildlife 
Code, sec.66.007, sec.66.015, or these rules during the one year period 
preceding the date of application;
(2) the applicant has met all applicable application requirements under 
sec.57.117 of this title (relating to Exotic Species Permit; Fee and Application 
Requirements); and
(3) the facilities as altered will meet the private facility criteria in 
sec.57.129 of this title (relating to Exotic Species Permits; Private Facility 
Criteria).
(b) Exotic Species permits must be amended to reflect any:
(1)  addition or deletion of species of harmful or potentially harmful exotic 
fish, shellfish, or aquatic plants held pursuant to the permit;
(2)  intended redistribution of harmful or potentially harmful fish, shellfish, 
and aquatic plants into private facilities not authorized in the permit;
(3) change in methods of preventing discharge of harmful or potentially harmful 
exotic fish, shellfish, and aquatic plants;
(4) change in discharge of private facility effluent from fish farms or 
wastewater treatment facilities; and
(5) change in existing design criteria listed in sec.57. 129.
(c) Applicants seeking amendment of exotic species permits, including those 
issued prior to January 23, 1992, must meet all application requirements listed 
in sec.57.117 and facility design criteria listed in sec.57. 129.
sec.57.122. Appeal.  An opportunity for hearing shall be provided to the 
applicant or permit holder for any denial of an Exotic Species permit or a 
Triploid Grass Carp permit where the terms of issuance are different from those 
requested by the applicant.
(1) Requests for hearings shall be made in writing to the department no more 
than 30 days from receipt of the denial notification.
(2) All hearings shall be conducted in accordance with the Rules of Practice and 
Procedure of the Texas Parks and Wildlife Department and the Administrative 
Procedure and Texas Register Act.
sec.57.123. Exotic Species Permit Reports.
(a) The exotic species permit holder shall submit an annual report that accounts 
for importation, possession, transport, sale or other disposition of any harmful 
or potentially harmful exotic species handled by the permittee. This report 
shall be submitted on forms provided by the department with the application for 
renewal or within 30 days after termination of the Exotic Species permit.
(b) An exotic species permit holder who has imported, possessed, transported, or 
sold triploid grass carp shall submit a quarterly report to the department. This 
report shall be submitted on a form provided by the department and shall 
include:
(1) a copy of each Exotic Species Transport Invoice issued during the past 
quarterly period; and
(2) a copy of each triploid grass carp certification received by the permittee 
for triploid grass carp purchased during the past quarterly period.
sec.57.124. Triploid Grass Carp; Sale, Purchase.
(a) Triploid grass carp may be sold only to:
(1) a person in possession of a valid Exotic Species permit authorizing 
possession of triploid grass carp or;
(2)  a person in possession of a valid Triploid Grass Carp permit.
(b) A person who holds a valid Triploid Grass Carp permit may purchase triploid 
grass carp only from a fish farmer in possession of a valid Exotic Species 
permit authorizing possession of triploid grass carp.
(c) A holder of an Exotic Species permit may obtain triploid grass carp only 
from:
(1) the holder of an valid Exotic Species permit authorizing possession of 
triploid grass carp; or
(2) a lawful source outside of the state.
(d) A fish farmer in possession of an Exotic Species permit must notify the 
department not less than 72 hours prior to taking possession of any and all 
shipments of triploid grass carp received from any source. Notification must 
include:
(1) number of triploid grass carp being purchased;
(2) source of triploid grass carp;
(3) final destination of triploid grass carp; and
(4) name of certifying authority who conducted triploid grass carp 
certification.
sec.57.125. Triploid Grass Carp Permit; Application, Fee.
(a)  The department may issue a Triploid Grass Carp permit only for stocking of 
triploid grass carp into a private pond.
(b) To be considered for a Triploid Grass Carp permit, the applicant shall:
(1) complete an initial Triploid Grass Carp permit application on a form 
provided by the department;
(2) submit this application to the department not less than 30 days prior to the 
proposed stocking date; and
(3) remit to the department the sum of the cost of the Triploid Grass Carp 
permit application fee and the Triploid Grass Carp User fee.
(c) The department shall charge a Triploid Grass Carp permit application fee in 
the amount of the sum of a $15 application flat fee plus $2.00 for each triploid 
grass carp requested on the Triploid Grass Carp permit application form. In the 
case of permit denial, the Triploid Grass Carp permit application flat fee is 
not refundable.
(d)  An applicant for a Triploid Grass Carp permit or a permittee shall allow 
inspection of their facilities and private ponds by authorized employees of the 
department during normal business hours.
sec.57.126. Triploid Grass Carp Permit; Terms of Issuance.
(a)  The department may issue a Triploid Grass Carp permit upon a finding that:
(1) applicant has completed and submitted to the department a Triploid Grass 
Carp permit application;
(2) applicant has remitted to the department all pertinent fees;
(3) all information provided in the Triploid Grass Carp permit application is 
true and correct;
(4)  applicant has not been finally convicted, within the last year, for 
violation of the Parks and Wildlife Code, sec.66.007, sec.66.015, or these 
rules;
(5) issuance of a Triploid Grass Carp permit is consistent with department 
fisheries or wildlife management activities; and
(6)  issuance of a Triploid Grass Carp permit is consistent with the Parks and 
Wildlife Commission's Environmental Policy.
(b) A permittee shall allow, upon request, take of a reasonable number of grass 
carp from the permittee's private body of water by department personnel for 
determination of triploid status.
(c) In determining the number of triploid grass carp authorized for possession 
under a Triploid Grass Carp permit the department shall consider the surface 
area of the private pond named in the permit application, and as appropriate, 
the percentage of the surface area of the private pond infested by aquatic 
vegetation.
sec.57.127. Triploid Grass Carp Permit; Denial.  The department may deny a 
Triploid Grass Carp permit upon a finding that the applicant fails to satisfy 
any of the required crieria for issuance of a permit listed in sec.57. 124 of 
this title (relating to Triploid Grass Carp; Sale, Purchase) permit issuance.
sec.57.128. Exotic Species Permits, Triploid Grass Carp Permits; Revocation. The 
department may revoke an Exotic Species permit or a Triploid Grass Carp permit 
upon a finding that the permittee has violated any provision in these rules or 
rules promulgated under Texas Parks and Wildlife Code, sec.66.015 during the 
valid permit period.
sec.57.129. Exotic Species Permit. Private Facility Criteria.
(a)  The fish farm or wastewater treatment facility must be designed to prevent 
discharge of water containing adult or juvenile harmful or potentially harmful 
exotic species, their eggs, seeds or other reproductive parts from the 
permittee's property.
(1) Fish farms holding harmful or potentially harmful exotic fish or shellfish 
shall have at least three appropriately designed and constructed permanent 
screens placed between any point in the fish farm where harmful or potentially 
harmful exotic fish or shellfish are intended to be in water on the fish farm 
and the point where private facility effluent first leaves the fish farm. Screen 
mesh shall be of an appropriate size for each state of shellfish growth and 
development. Screens must be designed and constructed such that screens can be 
maintained and cleaned without reducing the level of protection against release 
of harmful or potentially harmful exotic fish or shellfish. The department may 
approve alternate methods of preventing discharge of harmful or potentially 
harmful exotic fish or shellfish upon a finding that those methods are at least 
as effective in preventing discharge of adult or juvenile harmful or potentially 
harmful exotic species, their eggs, or other reproductive parts from the 
permittee's property.
(2) Fish farms containing harmful or potentially harmful exotic fish or 
shellfish must be designed such that private facility effluent from the fish 
farm can be wholly contained upon the fish farm in the event of escapement or 
release of such exotic species from the specific private facilities permitted to 
hold those species.
(b) Fish farms which are to contain species or hybrids of species listed in 
sec.57.113(c), (d), and (e) of this title (relating to Exceptions) and 
wastewater treatment facilities containing waterhyacinth which are within the 
100 year flood plain, referred to as Zone A on the National Flood Insurance 
Program Flood Insurance Rate Map, must enclosed within an earthen or concrete 
dike or levee constructed in such a manner to exclude all flood waters and such 
that no section of the crest of the dike or levee is less than one foot above 
the 100 year flood elevation. Dike design or construction must be approved by 
the department before issuance of a permit.
(c) Fish farms containing harmful or potentially harmful exotic shellfish shall 
be capable of segregating stocks of shellfish which have not been certified as 
free of disease from other stocks of shellfish on that fish farm.
(d) A fish farm containing harmful or potentially harmful exotic fish or 
shellfish must have in place security measures reasonably designed to prevent 
unrestricted or uncontrolled access to any private facilities containing harmful 
or potentially harmful exotic fish or shellfish. Security measures must be 
reasonably adequate to prevent unauthorized removal of such species from the 
fish farm.
(e)  For fish farms that are part of a fish farm complex, the following 
additional facility standards shall apply.
(1) Each permittee shall maintain in the common drainage, at least one screen or 
other method for preventing the movement of harmful or potentially harmful 
exotic fish or shellfish between the point where private facility effluent from 
the permittee's fish farm enters the common drainage and each point where an 
adjacent fish farmers private facility effluent enters the common drainage. The 
adequacy of design and construction of such screens or other structures shall be 
determined by the department as provided in subsection (a)(1) of this section.
(2)  The complex must be designed such that flow of private facility effluent 
can be wholly contained within the drainage system of the fish farm complex in 
the event of escapement or release of harmful or potentially harmful exotic fish 
or shellfish from any fish farm within the complex. Each permittee within the 
complex must have authority to stop the discharge of private facility effluent 
from the complex in the event of escapement or release of such fish or shellfish 
from that permittee's fish farm.
sec.57.130. Penalties.  The penalties for violation of this subchapter are 
prescribed by Parks and Wildlife Code, sec.66.012.
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 16, 1991.
TRD-9115908
Paul M. Shinkawa
Director, Legal Services
Texas Parks and Wildlife Department
Earliest possible date of adoption: January 20, 1992
For further information, please call: 1-(800)-792-1112, ext. 4863 or (512) 389-
4863
       
31 TAC sec.sec.57.191-57.193
(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 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 repeal of 31 TAC sec.sec.57. 
191-57.193, concerning exotic shellfish culture permits. Chapter 51 of the Parks 
and Wildlife Code, which provided statutory authority for promulgation of rules 
regulating shellfish sourcing permits was repealed by the 72nd Legislature. The 
statutory authority to regulate exotic shellfish was transferred to Chapter 66 
of the Parks and Wildlife Code.
Robin Riechers, 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 repeal will not affect current 
activities.
Mr. Riechers, also has determined that for each year of the first five years the 
repeals are in effect the following public benefit and costs are anticipated. 
The public benefit anticipated as a result of enforcing the repeal of the 
existing regulations will be the substitution of more exclusive and enforceable 
regulations in another section of the Texas Administrative Code. There will be 
no effect on small businesses. The anticipated economic cost to persons who are 
affected by the repeal of the existing regulations is not determinable. The 
agency has determined that there will be no local employment impact as a result 
of this proposed repeal.
Comments on proposed repeal may be submitted to C. E. Bryan, 4200 Smith School 
Road, Austin, Texas 78744, (512) 389-4863 or 1-(800)-792-1112, extension 4863.
The repeals are proposed under Senate Bill 726, passed in regular session of the 
72nd Legislature repealed, in its entirety, Chapter 51 of the Parks and Wildlife 
Code. The statutory authority under which 31 TAC sec.sec.57.191-57.193 were 
promulgated was transferred to Chapter 66 of the Texas Parks and Wildlife Code, 
necessitating repeal of existing rules promulgated under the statutory authority 
which existed in Chapter 51.
sec.57.191. Evidence.
sec.57.192. Permit: Requirements.
sec.57.193. Permit: Issuance.
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 16, 1991.
TRD-9115911
Paul M. Shinkawa
Director, Legal Services
Texas Parks and Wildlife Department
Earliest possible date of adoption: January 20, 1992
For further information, please call: 1-(800)-792-1112, ext. 4863 or (512) 389-
4863
       
Shellfish Sourcing Permit Issuance Procedures
31 TAC sec.sec.57.201-57.203
(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 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.57.201-57.203, concerning shellfish sourcing permits. Chapter 51 of the 
Parks and Wildlife Code, which provided statutory authority for promulgation of 
rules regulating shellfish sourcing permits was repealed by the 72nd 
Legislature. The statutory authority to regulate exotic shellfish was 
transferred to Chapter 66 of the Parks and Wildlife Code.
Robin Riechers, staff economist, has determined that for the first five-year 
period repeal of these rules will have no significant fiscal implications for 
state and local government as repeal will not affect current activities.
Mr. Riechers, also has determined that for each year of the first five years the 
repeals are in effect the following public benefit and costs are anticipated. 
The public benefit anticipated as a result of enforcing the repeal of the 
existing regulations 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 anticipated economic cost to persons who are 
affected by the repeal of the existing regulations is not determinable. The 
agency has determined that there will be no local employment impact as a result 
of this proposed repeal.
Comments on the proposed repeal may be submitted to C. E. Bryan, 4200 Smith 
School Road, Austin, Texas 78744, (512) 389-4863 or 1-(800)-792-1112, extension 
4863.
The repeals are proposed under Senate Bill 726, passed in regular session of the 
72nd Legislature repealed, in its entirety, Chapter 51 of the Parks and Wildlife 
Code. The statutory authority under which 31 TAC sec.sec.57.201-57.203 were 
promulgated was transferred to the Texas Parks and Wildlife Code, Chapter 66, 
necessitating repeal of existing rules promulgated under the statutory authority 
which previously existed in Chapter 51.
sec.57.201. Eligibility.
sec.57.202. Provisions.
sec.57.203. Issuance.
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 16, 1991.
TRD-9115910
Paul M. Shinkawa
Director, Legal Services
Texas Parks and Wildlife Department
Earliest possible date of adoption: January 20, 1992
For further information, please call: 1-(800)-792-1112, ext. 4863 or (512) 389-
4863
       
Chapter 57. Fisheries and Wildlife
Collection of Broodfish from Public Waters of Texas
31 TAC sec.sec.57.391-57.401
The Texas Parks and Wildlife Commission proposes new 31 TAC sec.sec.57.391-57. 
401, concerning collection of fish broodstock from the public waters of Texas.
Passage of Senate Bill 726 by the 72nd Legislature resulted in new Texas Parks 
and Wildlife Code, sec.sec.43.551-43.554. These statutes authorized commission 
adoption of rules which would allow collection of broodstock from the public 
waters of the state by a licensed aquaculturist acting under permit issued by 
the Texas Parks and Wildlife Department. In addition, these statutes authorize 
the collection of a fee equal to the value of the fish taken as broodstock.
The proposed rules establish the procedures for broodfish collection permit 
application, issuance, denial and revocation. The value of any broodfish 
collected by an aquaculturist or an aquaculturist's designated agent, acting 
under permit from the department, is proposed as the civil restitution value of 
the fish established by the commission in 31 TAC sec.sec.69.20-69.31. The rules 
require notification of when and where broodfish are to be taken, the final 
destination of the broodfish and reporting of all broodfish collected by an 
aquaculturist. In addition, the proposed rules regulate sale and release of any 
broodfish taken under permit issued by the department. A permit fee is proposed 
to offset departmental costs in permit processing.
Robin Riechers, staff economist, has determined that the first five-years the 
new rules are in effect there will be fiscal implications to the state or local 
governments or small businesses as a result of enforcing or administering the 
rules.
The fiscal implications to state government will be positive. The proposed new 
rules allow this agency to collect fees which will offset the costs of 
administering the broodfish collection permitting process. In addition, this 
agency will collect a restitution value for any fish collected by an 
aquaculturist for use as broodstock. There are no anticipated costs to local 
governments.
Fiscal implication for small businesses is anticipated to be positive. The 
permitted collection of broodstock from public waters will allow aquaculturists 
to procure those species of fish which may be unavailable through commercial 
sources. Permitted collection of some species will lower costs incurred by 
aquaculturists for those species which are available from commercial sources but 
may bring premium prices. The net result should be that of encouraging the 
growth of the state's nascent aquaculture industry.
Mr. Riechers also has determined that for each of the first five-years the rules 
as proposed are in effect the public benefit anticipated as a result of 
enforcing the new rules will permit regulation of the taking of broodfish from 
public waters and concomitant protection of the state's aquatic resources. Costs 
to the public could occur if excessive numbers of broodfish from a specified 
body of water were removed, thus requiring the department to restock the water 
with fish. However, the department will not issue permits for collection of 
broodfish in areas where such collection could result in overharvest of 
broodfish.
It is anticipated that there will be positive fiscal implications to persons 
required to comply with the rules as proposed. Collection of broodfish from 
public waters by an aquaculturist is substantially less expensive than 
procurement from other sources. In addition, at least two broodfish species are 
generally not available from other sources. Aquaculturists would be allowed to 
designate persons who could capture broodfish for the permittee. The agency 
anticipates that this should further reduce the costs incurred by 
aquaculturists.
The agency has filed a local employment impact statement with the Texas 
Employment Commission in compliance with the Administrative Procedure and Texas 
Register Act, sec.4A, but has not received a reply.
Comments on the new rules as proposed may be submitted to Dr. Bill Harvey, 
Director of Special Programs, Texas Parks and Wildlife Department, 4200 Smith 
School Road, Austin, Texas 78744, (512) 389-4642 or 1 (800) 792-1112, ext. 4642.
The new sections are proposed under authority of the Texas Parks and Wildlife 
Code, sec.sec.43.551-43.554, and sec.66.015, which authorize the department to, 
respectively, regulate taking of broodfish from the public waters of the state 
and regulate placement of fish, shellfish, or aquatic plants in public waters of 
the state.
sec.57.391. Definitions.  The following words and terms, when used in these 
rules, shall have the following meanings unless the context clearly indicates 
otherwise.
 Aquaculture (or fish farming)-The business of producing and selling cultured 
species raised in private facilities.
 Aquaculturist-A person holding a valid license, issued under Chapter 27 of the 
Agriculture Code, to engage in aquaculture or fish farming.
 Aquaculture facility (or fish farm)-The property including private ponds from 
which fish, shellfish, or aquatic plants are produced, propagated, transported 
or sold.
 Broodfish-A fish taken from the public waters of this state for the purpose of 
aquaculture.
 Collection-Any boating, fishing or fish transportation activity involved in the 
take or attempted take of broodfish.
 Cultured species -Fish, shellfish or aquatic plants raised under conditions 
where at least a portion of their life cycle is controlled by an aquaculturist.
 Department-The Texas Parks and Wildlife Department.
 Designated agent -A person designated by an aquaculturist and approved by 
permit to act on behalf of that aquaculturist in collection of broodfish.
 Director-The Executive Director of the Texas Parks and Wildlife Department or 
his designee.
 Private facility -A pond, tank, cage, or other structure capable of holding 
cultured species in confinement wholly within or on private land or water within 
or on permitted public land or water.
 Progeny-Offspring of fish, including eggs, fry, and fingerlings.
 Public waters-Bays, estuaries, and water of the Gulf of Mexico within the 
jurisdiction of the state, and the rivers, streams, creeks, bayous, reservoirs, 
lakes, and portions of those waters where public access is available without 
discrimination.
 Sportfishing-The act of using legal means or methods to take or attempting to 
take aquatic life for non-commercial purposes.
sec.57.392. General Rules.
(a) The director may issue Broodfish Permits only to an aquaculturist who has 
not violated, during the one year period preceding the date of application, any 
provision of these rules or rules promulgated under:
(1) Chapter 66 of the Texas Parks and Wildlife
(2) Chapter 134 of the Agriculture Code.
(b) The director shall issue Broodfish Permits to allow collection of broodfish 
from specific sites only:
(1) upon a finding of the department that collection of broodfish will not 
adversely affect the department's fishery management activities at that site 
and;
(2) upon a finding of the department that broodfish collection activities will 
not interfere with sportfishing activities.
(c)  While collecting broodfish, an aquaculturist's designated agent must be in 
possession of a valid sportfishing license issued by the department.
(d)  Broodfish permits will not be issued for the collection of black bass of 
the genus Micropterus or crappie of the genus Pomoxis.
sec.57.393. Sale and Purchase of Broodfish; Notification.
(a)  An aquaculturist may sell live broodfish only to another aquaculturist.
(b) An aquaculturist may purchase live broodfish only from another aquaculturist
(c) An aquaculturist may purchase live broodfish only for the purpose of using 
such fish in the production of progeny.
(d) An aquaculturist intending to sell live broodfish must notify the 
department's Aquaculture Coordinator, in writing, at least seven days prior to 
sale. Notification must include:
(1) the number of individuals of each species sold;
(2) the Broodfish Permit number under which the broodfish were collected and;
(3) the fish farm license numbers of both the seller and purchasing 
aquaculturist.
sec.57.394. Broodfish Collection; Devices, Methods and Notification.
(a) Broodfish may be collected only by:
(1) an aquaculturist in possession of a valid Broodfish Permit issued by the 
department or;
(2)  a person named in a specific Broodfish Permit as a designated agent of the 
aquaculturist holding that permit.
(b) A permitted aquaculturist may take broodfish of a length, number, and within 
a time period by using means and methods only as specified in the 
aquaculturist's Broodfish Permit.
(c)  Aquaculturists and designated agents, while collecting broodfish, must have 
in their immediate possession a valid copy of the Broodfish Permit under which 
these activities are authorized.
(d) The department's Law Enforcement Division must be notified no less than 48 
hours prior to commencement of broodfish collection. The specific Law 
Enforcement Division office to be notified shall be included by the department 
in the Broodfish Permit. Notification must include:
(1) names of aquaculturists and designated agents participating in broodfish 
collection;
(2) date and time of collection activities;
(3) method of collection;
(4) area from which broodfish are to be collected;
(5) broodfish permit number;
(6) license numbers of vehicles transporting broodfish;
(7)  boat registration number of all vessels involved in broodfish collection;
(8) final destination of broodfish.
sec.57.395. Broodfish Permits; Fees, Terms of Issuance.
(a) The fee for Broodfish Permit application shall be $25 dollars and is not 
refundable if a permit is denied.
(b) To be considered for a Broodfish Permit, the applicant shall:
(1) complete and submit an Broodfish Permit application on a form provided by 
the department;
(2) provide a copy of the applicant's fish farming license with the application;
(3) submit the amount of $25 to the department.
(c) An applicant for a Broodfish Permit or a permittee shall allow inspection of 
their aquaculture facility by authorized employees of the department during 
normal business hours.
(d)  If a permittee discontinues aquaculture activities, broodfish collected 
under permit from the department may be returned to the public waters of the 
state only by permit as required by the Parks and Wildlife Code, sec.66.015.
sec.57.396. Broodfish Permit; Expiration.
(a) Broodfish Permits required by these rules expire 60 days from the date of 
issuance.
(b)  Broodfish Permits are not transferable.
sec.57.397. Broodfish Permit; Revocation.
(a) The director may revoke a Broodfish Permit upon finding that a permittee:
(1) does not hold a valid aquaculture (fish farming) license issued by the Texas 
Department of Agriculture;
(2) has violated any provision of that Broodfish Permit;
(3) fails to report, as required in sec.57.401, of this title (relating to 
Reports), the number and sizes of broodfish collected;
(4) provides false information in a Broodfish Report or;
(5) fails to remit to the department within 30 days of broodfish collection all 
restitution fees assessed to the permittee for recovery of the value of 
broodfish collected.
(b)  The director may revoke a Broodfish Permit upon finding that a permittee's 
designated agent:
(1) does not hold a valid sportfishing license or;
(2) has violated any provision of that Broodfish Permit.
sec.57.398. Permit Denial. <ol> A Broodfish Permit may be denied if:
(1) the applicant fails to satisfy all required or issuance listed in 
sec.57.392(a) of this title (relating to General Rules) and sec.57.395(a)-(c) of 
this title (relating to Broodfish Permits; Fees, Terms of Issuance);
(2)  the department finds that collection of broodfish could be detrimental to 
existing fish populations at a specified collection site;
(3) the department finds that issuance of the permit is inconsistent with 
department management or stocking programs in specified public water;
(4) the department finds that issuance of the permit could be reasonably 
expected to interfere with sportfishing activities at a specified site;
(5) fish species and numbers requested in the permit application are reasonably 
available from commercial aquaculturists licensed to operate aquaculture 
facilities within the state;
(6) a designated agent named in the Broodfish Permit Application has violated 
any of these rules in the five year period preceding the date of permit 
application.
sec.57.399. Appeal.  An opportunity for hearing shall be provided to the 
applicant or permit holder for any denial of a Broodfish Permit where the terms 
of the issuance are different from those requested by the applicant.
(1) Requests for hearings shall be made in writing to the department no more 
than 30 days from the receipt of the permit denial.
(2) All hearings shall be conducted in accordance with the Rules of Practice and 
Procedure of the Texas Parks and Wildlife Department and the Administrative 
Procedures and Texas Register Act.
sec.57.400. Prohibited Acts.
(a) Except as provided in sec.57.394 (a) of this title (relating to Broodfish 
Collection; Devices, Methods and Notification), it is a violation to collect 
broodfish from the public water of the state.
(b) Except as provided in sec.57.393(a)-(c) of this title (relating to Sale and 
Purchase of Broodfish; Notification) it is a violation to sell, buy or offer to 
buy, transport, barter, or exchange broodfish collected from the public water of 
this state.
(c) It is a violation if an aquaculturist fails to remit to the department, 
within 14 days of written notification by the department, the monetary value of 
broodfish collected from the public waters of the state. The value of an 
individual broodfish shall be that established by rule in 31 TAC, sec.sec.69.20-
69.31.
(d) It is a violation if an aquaculturist or an aquaculturist's designated 
agent, while collecting broodfish:
(1) is in possession of a number of fish, of any species, in excess of the daily 
bag limit for that species at the collection site specified in a Broodfish 
permit;
(2) is in possession of fish of a length other than that specified in the 
Broodfish Permit or;
(3) is in possession of fish of any species other than the species specified in 
the permit.
sec.57.401. Reports.  The Broodfish Permit holder must submit a Broodfish 
Collection Report to the department within seven days of broodfish collection. 
The report shall be submitted on a form provided by the department.
sec.57.402. Restitution for Broodfish. Parks and Wildlife Code, sec.43.554, 
authorizes the department to set fees equal to the value of the broodfish to be 
taken under authority of that subchapter. The value of fish taken from the 
public waters of Texas is prescribed by rule in 31 TAC, sec.sec.69. 20-69.31. 
Upon receipt of a Broodfish Collection Report, the department shall provide the 
permittee with a restitution request in an amount equal to the established value 
of any and all fish collected. Permittee shall remit to the department the full 
restitution value of all broodfish taken within 14 days of receipt of 
restitution request from the department.
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 16, 1991.
TRD-9115909
Paul M. Shinkawa
Director, Legal Services
Texas Parks and Wildlife Department
Earliest possible date of adoption: January 20, 1992
For further information, please call: 1-(800)-792-1112, ext. 4642 or (512) 389-
4642
       
Blue Crab Fishery Management Plan
31 TAC sec.57.701
The Texas Parks and Wildlife Commission proposes to adopt new 31 TAC sec.57. 701 
which will adopt by reference a Texas Blue Crab Fishery Management Plan. 
Available and applicable biological, economic, legal, sociologic information 
essential to the management of blue crabs in Texas is contained in the Texas 
Blue Crab Fishery Management Plan. Descriptions of the biology, life history, 
fishery, past, and future management practices and suggested management 
structures are presented. Suggested management strategies are in the areas of 
shared management authority, size limits, fishing seasons and times, area 
closures, bag and possession limits, means and methods, licensing, penalties and 
compliance, allocation, shedding technology development, mariculture 
development, habitat maintenance, restoration and enhancement, fishery 
monitoring, assessment and evaluation, and communication and education.
Copies of the Texas Blue Crab Fishery Management Plan are available from the 
Texas Parks and Wildlife Department at 4200 Smith School Road, Austin, Texas 
78744.
Mr. Robin Riechers, staff economist, has determined that adoption of the Texas 
Blue Crab Fishery Management Plan will have no direct fiscal impacts as it is a 
statement of policy, and does not implement, interpret or prescribe rules or 
regulations. Rule making following the adoption of the Plan could have impacts 
in the future, but those fiscal impacts will be considered on a case by case 
basis as those rules are adopted.
Mr. Riechers also has determined that adoption of the Texas Blue Crab Fishery 
Management Plan will impose no direct economic costs to individuals during each 
of the first five years of its implementation as it is a statement of policy, 
and does not implement, interpret, or prescribe rules or regulations. Rule 
making following the adoption of the Plan could impose economic costs on 
individuals in the future, but those economic costs will be considered on a case 
by case basis as these rules are adopted. Benefits will accrue during each of 
the first five years that the plan is in force. The benefit will be to provide 
for a mechanism to prevent the depletion of blue crab while achieving, on a 
continuing basis, the optimum yield for the crabbing industry. The benefits will 
come about through the adoption of rules that are based on the best scientific 
information available to manage blue crabs that will promote efficiently in 
utilizing blue crab resources, that will minimize cost and avoid unnecessary 
duplication in their administration and that will enhance law enforcement.
Comments on the proposed Texas Blue Crab Fishery Management Plan may be 
submitted to C. E. Bryan, Fisheries Resource Program Director, Texas Parks and 
Wildlife Department, 4200 Smith School Road, Austin, Texas 78744, telephone 
(512) 389-4863 or 1-(800)-792-1112, extension 4863.
The new section is proposed under the Texas Parks and Wildlife Code, Chapter 66. 
In addition, sec.66.018 provides the Texas Parks and Wildlife Commission with 
authority to make regulations for the safe use of crab traps and to determine 
the amount of the fee for crab trap tags upon adoption of a crab management plan 
and the establishment of a crab advisory committee.
sec.57.701. Texas Blue Crab Fishery Management Plan.
(a) Texas Blue Crab Fishery Management Plan is adopted by reference.
(b) Copies may be obtained at the Texas Parks and Wildlife Department at 4200 
Smith School Road, Austin, Texas 78744.
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 16, 1991.
TRD-9115906
Paul M. Shinkawa
Director, Legal Services
Texas Parks and Wildlife Department
Earliest possible date of adoption: January 20, 1992
For further information, please call: 1-800-792-1112, extension 4863 or (512) 
389-4863
       
TITLE 34. PUBLIC FINANCE
Part I. Comptroller of Public Accounts
Chapter 3. Tax Administration
Subchapter O. State Sales and Use Tax
34 TAC sec.3.299
The Comptroller of Public Accounts proposes an amendment to sec.3.299, 
concerning newspapers, magazines, publishers, exempt writings. The amendment is 
the result of a change in the Tax Code, Chapter 151, made by the 72nd 
Legislature, 1991. The amendment expands the definition of newspaper to include 
newspapers furnished without charge. Another amendment, unrelated to legislative 
action, defines the term "other short intervals." The expansion of the 
definition of newspapers to include free newspapers is effective September 1, 
1991.
Tom Plaut, chief revenue estimator, has determined that for the first five-year 
period the section is in effect there will be no revenue impact on the state or 
local government.
Dr. Plaut 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 new information regarding tax responsibilities. 
This section is adopted under the Tax Code, Title 2, and does not require a 
statement of fiscal implications for small businesses. There is no anticipated 
economic cost to persons who are required to comply with the section as 
proposed.
Comments on the proposal may be submitted to Lucy Glover, Manager, Tax 
Administration Division, P.0. Box 13528, Austin, Texas 78711.
The amendment is proposed under the Tax Code, sec.111.002, which provides the 
comptroller with the authority to prescribe, adopt, and enforce rules relating 
to the administration and enforcement of the provisions of the Tax Code, Title 
2.
sec.3.299. Newspapers, Magazines, Publishers, Exempt Writings.
(a) Newspapers.
(1) Newspaper-<nl>A publication:
<nl>(A)  [Those publications] printed on newsprint <nl>;
<nl>(B)  whose average sales price per copy over a 30-day period does not exceed 
$.75<nl>;
<nl>(C) that is<ol> [which are] printed and distributed periodically at daily, 
weekly, or other short intervals of <nl>four weeks or less<ol> [30 days or 
less]<nl>;
<nl>(D) for the dissemination of news of a general character and of a general 
interest, including advertising.
(2) Newspaper [also] includes a publication containing articles and essays of 
general interest by various writers and advertisements <nl>that<ol> [which] is 
produced for the operator of a licensed and certificated carrier of persons and 
distributed by the operator to its customers during their travel on the carrier.
<nl>(3) Newspaper also includes publications for the dissemination of news of a 
general character and of a general interest that is printed on newsprint and 
distributed to the general public free of charge at daily, weekly, or other 
short intervals of four weeks or less.
<nl>(4) <ol>[(3)] The term newspaper does not include magazines, handbills, 
circulars, flyers, sales catalogs, or the like, unless <nl>these <ol> [the] 
items are distributed as a part of a [publication which itself constitutes a] 
newspaper and [further provided that] the items, after being printed, are 
delivered by the printer to the person responsible for the distribution of the 
newspaper.
<nl>(5)<ol>[(4)] The sale of newspapers whether sold or distributed by 
individual copy or subscription is exempt.
(b) Magazines.
(1) Magazine-Those publications usually paper-backed and sometimes illustrated 
that appear at regular intervals and contain stories, articles, [and] essays by 
various writers, and advertisements.
(2)-(3) (No change.)
(c) Publishers.
(1) Newspaper publishers [who sell their product] may claim <nl>a<ol> [an 
exemption equivalent to the] manufacturing exemption as set out in sec.3.300 of 
this title (relating to Manufacturing; Custom Manufacturing; Fabricating; 
Processing). Newspaper publishers <nl>may also claim<ol> [whose product is not 
sold, but rather distributed free of charge, may only claim exemptions as set 
out in sec.3.300(a)-(e) of this title (relating to Manufacturing; Custom 
Manufacturing; Fabricating; Processing) and] the exemption for packaging 
supplies as set out in  s3.314 of this title (relating to Wrapping, Packing, 
Packaging Supplies, Containers, Labels, Tags, and Export Packers)[, regardless 
of whether their finished product is ultimately sold at retail]. Persons 
printing newspapers may accept an exemption certificate in lieu of the sales tax 
from the publisher.
(2) (No change.)
(d) Exempt writings.
(1) Periodicals and writings are exempt from tax if published and distributed by 
a religious, philanthropic, charitable, historical, scientific, or other similar 
organization[,] not operated for profit. Periodicals and writings published and 
distributed by an educational organization are subject to the tax.
(2)-(6) (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 12, 1991.
TRD-9115793
Martin Cherry
Chief, General Law Section
Comptroller of Public Accounts
Earliest possible date of adoption: January 20, 1992
For further information, please call: (512) 463-4028
       
Subchapter S. Interstate Motor Carrier Sales and Use Tax
34 TAC sec.3.445
The Comptroller of Public Accounts proposes an amendment to sec.3.445, 
concerning computation of proportioned tax on trailers and semitrailers. The 
amendment reflects the changes to the Tax Code, Chapter 157, made by the 72nd 
Legislature, 1991. The tax rate used in the computation was increased.
Tom Plaut, chief revenue estimator, has determined that for the first five-year 
period the section is in effect there will be no revenue impact on the state or 
local government.
Dr. Plaut 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 new information regarding tax responsibilities. 
This section is adopted under the Tax Code, Title 2, and does not require a 
statement of fiscal implications for small businesses. There is no anticipated 
economic cost to persons who are required to comply with the section as 
proposed.
Comments on the proposal may be submitted to Lucy Glover, Manager, Tax 
Administration Division, P.O. Box 13528, Austin, Texas 78711.
The amendment is proposed under the Tax Code, sec.111.002, which provides the 
comptroller with the authority to prescribe, adopt, and enforce rules relating 
to the administration and enforcement of the provisions of the Tax Code, Title 
2.
sec.3.445. Computation of the Proportioned Tax-Trailers and Semitrailers.
(a) (No change.)
(b) Computation of the proportioned tax-Method 1:
(1) (No change.)
(2) multiply [the percentage calculated in paragraph (1) of this subsection by 
6.0% of] the purchase price of all trailers and semitrailers purchased during 
the reporting period <nl>by the current tax rate, and that result by the 
percentage calculated in paragraph (1) of this subsection<ol>;
(3) (No change.)
(c) Computation of the proportioned tax-Method 2.
(1) If a motor carrier can prove that the tax liability for the number of 
trailers and semitrailers which were actually purchased in Texas or first 
brought into Texas during the reporting period is less than the amount computed 
using the method described in subsection (b) of this section, the motor carrier 
may use the following method:
(A) (No change.)
(B) multiply [the percentage calculated in subparagraph (A) of this paragraph by 
6.0% of] the purchase price of each trailer and semitrailer that was purchased 
in Texas or first brought into Texas during the reporting period <nl>by the 
current tax rate, and that result by the percentage calculated in subparagraph 
(A) of this paragraph <ol>.
(2) (No change.)
(d) Credit for tax paid to another state. If the motor carrier has previously 
paid any legally imposed sales or use tax to another state upon a vehicle 
subject to tax under subsection (b) or (c) of this section, a deduction or 
credit may be taken in accordance with the Tax Code, sec.157.102(a)(3) or 
sec.157.102(c)(1)(D). In computing the proportioned credit allowed, credit may 
not be taken for sales or use tax previously paid to Texas or another state in 
excess of <nl>the current tax rate multiplied by<ol> [6.0% of] the purchase 
price of any vehicle.
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 12, 1991.
TRD-9115796
Martin Cherry
Chief, General Law Section
Comptroller of Public Accounts
Earliest possible date of adoption: January 20, 1992
For further information, please call: (512) 463-4028
       
34 TAC sec.3.447
The Comptroller of Public Accounts proposes an amendment to sec.3.447, 
concerning owner-operator contracts. The amendment reflects the changes to the 
Tax Code, Chapter 157, made by the 72nd Legislature, 1991, First Called Session. 
An exclusion was added due to the change in the proportioned tax rate.
Tom Plaut, chief revenue estimator, 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.
Dr. Plaut 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 new information regarding tax responsibilities. 
This section is adopted under the Tax Code, Title 2, and does not require a 
statement of fiscal implications for small businesses. There is no anticipated 
economic cost to persons who are required to comply with the section as 
proposed.
Comments on the proposal may be submitted to Lucy Glover, Manager, Tax 
Administration Division, P.O. Box 13528, Austin, Texas 78711.
The amendment is proposed under the Tax Code, sec.111.002, which provides the 
comptroller with the authority to prescribe, adopt, and enforce rules relating 
to the administration and enforcement of the provisions of the Tax Code, Title 
2.
sec.3.447. Owner-Operator Contracts.
(a)-(b) (No change.)
(c) Exclusion.
(1)-(4) (No change.)
<nl>(5) If the motor vehicle was purchased in Texas or first operated in Texas 
on or after September 1, 1991, and tax on the purchase price of the motor 
vehicle of at least 6.25% has been paid, the $25 tax is not due.
(d)-(e) (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 12, 1991.
TRD-9115795
Martin Cherry
Chief, General Law Section
Comptroller of Public Accounts
Earliest possible date of adoption: January 20, 1992
For further information, please call: (512) 463-4028
       
34 TAC sec.3.448
The Comptroller of Public Accounts proposes an amendment to sec.3.448, 
concerning trip-lease agreements. The amendment reflects the changes to the Tax 
Code, Chapter 157, made by the 72nd Legislature, 1991. The exclusion is changed 
due to the tax rate increase.
Tom Plaut, chief revenue estimator, 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.
Dr. Plaut 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 new information regarding tax responsibilities. 
This section is adopted under the Tax Code, Title 2, and does not require a 
statement of fiscal implications for small businesses. There is no anticipated 
economic cost to persons who are required to comply with the section as 
proposed.
Comments on the proposal may be submitted to Lucy Glover, Manager, Tax 
Administration Division, P.O. Box 13528, Austin, Texas 78711.
The amendment is proposed under the Tax Code, sec.111.002, which provides the 
comptroller with the authority to prescribe, adopt, and enforce rules relating 
to the administration and enforcement of the provisions of the Tax Code, Title 
2.
sec.3.448. Trip-Lease Agreements.
(a)-(b) (No change.)
(c) Exclusion. If a sales or use tax <nl>equal to or greater than the current 
tax rate has been paid on<ol> [of at least 6.0% of] the purchase price of the 
motor vehicle [has been paid] or if the tax under the Tax Code,  s157. 102(a), 
(b), or (c) has been paid, the $5.00 tax is not due.
(d) (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 12, 1991.
TRD-9115794
Martin Cherry
Chief, General Law Section
Comptroller of Public Accounts
Earliest possible date of adoption: January 20, 1992
For further information, please call: (512) 463-4028
       
Subchapter U. Public Utility Gross Receipts Tax
34 TAC sec.3.511
The Comptroller of Public Accounts proposes an amendment to sec.3.511, 
concerning due date for assessment. The amendment reflects legislative changes 
required by House Bill 11, 72nd Legislature, 1991, First Called Session, 
increasing the interest rate from 10% to 12%. Subsection (d) is omitted as it is 
no longer valid.
Tom Plaut, chief revenue estimator, 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.
Dr. Plaut 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 clarification of comptroller rules related to House Bill 11. 
This section is adopted under the Tax Code, Title 2, and does not require a 
statement of fiscal implications for small businesses. There is no anticipated 
economic cost to persons who are required to comply with the section as 
proposed.
Comments on the proposal may be submitted to Lucy Glover, Manager, Tax 
Administration Division, P.O. Box 13528, Austin, Texas 78711.
The amendment is proposed under the Tax Code, sec.111.002, which provides the 
comptroller with the authority to prescribe, adopt, and enforce rules relating 
to the administration and enforcement of the provisions of the Tax Code, Title 
2.
sec.3.511. Due Date for Assessment.
(a)-(b) (No change.)
(c) All payments and reports postmarked, or received if not mailed, after the 
due date are late, and a penalty of 10% of the tax is due. Interest at a rate of 
<nl>12% <ol> [10%] per year<nl>, compounded monthly,<ol> is due of the payment 
and the report are more than 30 days delinquent.
[(d) In order to adjust to the new assessment periods, the annual report due 
August 15, 1984, must be based on gross receipts for the period from June 1, 
1983, through June 30, 1984. The quarterly report due on February 15, 1984, must 
be based on gross receipts for the period from September 1, 1983, through March 
31, 1984. Any taxpayer who includes receipts from December 1983 in the report 
due on February 15, 1984, may exclude those receipts from the report due on May 
15, 1984.]
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 12, 1991.
TRD-9115797
Martin Cherry
Chief, General Law Section
Comptroller of Public Accounts
Earliest possible date of adoption: January 20, 1992
For further information, please call: (512) 463-4028
       
Subchapter AA. Automotive Oil Sales Fee
34 TAC sec.3.701
The Comptroller of Public Accounts proposes new sec.3.701, concerning reporting 
requirements. Senate Bill 1340, adopted in the 72nd Legislature, 1991, requires 
the comptroller to administer and enforce the collection of the automotive oil 
fee imposed on the first actual sale of automotive oil delivered to a location 
in this state and sold to a purchaser who is not an automotive oil manufacturer. 
This new section sets forth the reporting requirements.
Tom Plaut, chief revenue estimator, 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.
Dr. Plaut 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 new information regarding tax responsibilities. 
This section is adopted under the Tax Code, Title 2, and does not require a 
statement of fiscal implications for small businesses. There is no anticipated 
economic cost to persons who are required to comply with the section as 
proposed.
Comments on the proposal may be submitted to Lucy Glover, Manager, Tax 
Administration Division, P.O. Box 13528, Austin, Texas 78711.
The new section is proposed under the Tax Code, sec.111.002, which provides the 
comptroller with the authority to prescribe, adopt, and enforce rules relating 
to the administration and enforcement of the provisions of the Tax Code, Title 
2.
sec.3.701. Reporting Requirements.
(a) Report and payment required.
(1) Each automotive oil manufacturer or importer shall file a report with the 
comptroller stating the number of quarts and/or gallons of automotive oil sold 
or imported into this state.
(2) An automotive oil manufacturer who makes a first sale of automotive oil in 
Texas is liable for the fee.
(3) An automotive oil importer who imports or causes to be imported automotive 
oil into Texas for sale, use, or consumption is liable for the fee.
(b) Amount of fee.
(1) Except as provided in paragraph (2) of this subsection, the rate of the fee 
shall be $ .02 per quart or $ .08 per gallon of automotive oil.
(2) The Texas Department of Health may adjust the fee rate to meet the 
expenditure requirements of the Used Oil Recycling Program, and to maintain an 
appropriate fund balance. The fee rate may not exceed $ .05 per quart or $ .20 
per gallon.
(3) On or before September 1 of each year, the Texas Department of Health and 
the comptroller shall jointly issue notice of the effective fee rate for the 
next fiscal year.
(c) Due date of report and payment.
(1) The automotive oil fee report and payment are due no later than the 25th day 
of the month following the end of each calendar quarter in which the liability 
for the fee is incurred.
(2) An automotive oil manufacturer or importer of automotive oil must file a 
quarterly report even if there is no fee to report.
(d) Discount. A person required to pay the fee may retain 1.0% of the amount of 
the fees due from each quarterly payment as reimbursement for administrative 
costs.
(e) Penalty. Penalties due on delinquent fees and reports shall be imposed as 
provided by the Tax Code, sec.111.061.
(f) Interest. Interest due on delinquent fees shall be imposed as provided by 
the Tax Code, sec.111.060.
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 13, 1991.
TRD-9115881
Martin Cherry
Chief, General Law Section
Comptroller of Public Accounts
Earliest possible date of adoption: January 20, 1992
For further information, please call: (512) 463-4028
       
Chapter 7. Administration of State Lottery Act
Subchapter A. Procurement
34 TAC sec.7.101
The Comptroller of Public Accounts proposes new sec.7.101, concerning lottery 
procurement procedures. These procedures outline the solicitation process for 
the lease and purchase of various goods and services by the Lottery Division. 
These procedures also define the contract award process, as well as the protest 
process.
Tom Plaut, chief revenue estimator, has determined that for the first five-year 
period the section is in effect there will be no significant revenue impact on 
state or local government.
Dr. Plaut also has determined that for each year of the first five years the 
section is in effect there would be no significant public cost or benefit. There 
is no anticipated economic cost to persons who are required to comply with the 
section as proposed. This section is adopted under the State Lottery Act, sec.2. 
02, and does not require a statement of fiscal implications for small 
businesses.
Comments on the new section may be submitted to Nora Linares, Director, Lottery 
Division, Comptroller of Public Accounts, Austin, Texas 78774.
The new section is proposed under the State Lottery Act,  s2.02, which provides 
the comptroller with the authority to adopt all rules necessary to administer 
the State Lottery Act.
sec.7.101. Lottery Procurement Procedures.
(a) Definitions. The following words and terms, when used in this section, shall 
have the following meanings, unless the context clearly indicates otherwise.
(1) Act-The State Lottery Act.
(2) Director-The director of the division.
(3) Division-The lottery division in the comptroller's office.
(4) Emergency purchase-The purchase or lease of goods or services that are so 
badly needed that the division will suffer financial or operational damage if 
the goods or services are not secured immediately.
(5)  Goods-Supplies, materials, and equipment.
(6) IFB-A written invitation for bid.
(7) Lottery-The procedures operated by the division under the State Lottery Act 
through which prizes are awarded or distributed by chance among persons who have 
paid, or unconditionally agreed to pay, for a chance or other opportunity to 
receive a prize.
(8)  Nonresident bidder or proposer-A bidder or proposer whose principal place 
of business is not in Texas, but excludes a bidder or proposer whose ultimate 
parent company or majority owner has its principal place of business in Texas.
(9) Principal place of business in Texas-A business entity that has at least one 
permanent office located in Texas, from which business activities other than 
submitting bids or proposals to governmental agencies are conducted, with at 
least one employee working in that office.
(10) Produced in Texas-Those goods that are manufactured in Texas, excluding the 
sole process of packaging or repackaging.
(11) RFP-A written request for proposals.
(12) Resident bidder or proposer-A bidder or proposer whose principal place of 
business is in Texas, and includes a bidder or proposer whose ultimate parent 
company or majority owner has its principal place of business in Texas.
(13) Services-Includes consultant services, personal services, professional 
services, facility services (i.e., the lease of real property, including utility 
and custodial service), public relations, telecommunications services, and 
advertising services.
(14) State contract-A term contract for goods or services established and 
administered by the General Services Commission.
(b) Competitive solicitations.
(1) For the purchase or lease of goods and services not expected to exceed 
$5,000, or for the purchase or lease of goods and services available under a 
state contract, a competitive solicitation, whether formal or informal, may be 
conducted, but is not required.
(2) For the purchase or lease of goods and services not expected to exceed 
$25,000, the division, at a minimum, must conduct an informal competitive 
solicitation in an attempt to obtain at least three competitive price 
quotations.
(3) For the purchase or lease of goods and services expected to exceed $25,000, 
the division must conduct a formal competitive solicitation in an attempt to 
obtain at least three competitive bids or proposals.
(4) For the purchase of printing services, the division must conduct a formal 
competitive solicitation in an attempt to obtain at least three competitive bids 
or proposals.
(5) For those formal or informal competitive solicitations where less than three 
bids, proposals, or price quotations are received, the division must document 
the reasons, if known, for the lack of three bids, proposals or price 
quotations. If less than three bids, proposals, or price quotations are 
received, the division may cancel the solicitation and conduct another 
solicitation, or it may award a contract if one acceptable bid, proposal, or 
price quotation is received.
(6)  Notwithstanding paragraphs (1)-(3) of this subsection, the division may 
make an emergency purchase or lease of goods or services if the division will 
suffer financial or operational damage. Prior to making an emergency purchase or 
lease of goods or services, the existence of an emergency should be documented. 
For emergency purchases in excess of $5,000, the division, at a minimum, must 
conduct an informal competitive solicitation in an attempt to obtain at least 
three competitive price quotations. The division may ask the General Services 
Commission or any other appropriate entity for advice and assistance in the 
handling of an emergency purchase.
(c) Informal competitive solicitations.
(1) An informal competitive solicitation is a process conducted in order to 
receive at least three competitive price quotations for a specifically 
identified good or service, without the advertisement and issuance of an IFB or 
RFP. The price quotations may be solicited by letter, telegram, facsimile, or 
telephone call. The following information must be recorded by the division in 
the solicitation file:
(A) the name and telephone number of the person or company submitting the price 
quotation;
(B) the time and date the price quotation was received;
(C) the amount of the price quotation; and
(D) the name and telephone number of the person receiving the price quotation 
for the division.
(2) The director or the director's designees shall award a contract to the 
qualified bidder submitting the lowest price quotation. In determining the 
lowest price quotation, an amount will be added to a nonresident bidder's or 
proposer's price quotation equal to the amount a Texas resident bidder or 
proposer would be required to underbid a nonresident bidder or proposer to 
obtain a comparable contract in the state in which the nonresident bidder or 
proposer has its principal place of business. This added amount will only be 
used for evaluation purposes, and will not be included in the nonresident 
bidder's or proposer's contract if one is awarded.
(3) The contract shall be awarded by the issuance of a written purchase order.
(d) Formal competitive solicitations.
(1) A formal competitive solicitation is a process conducted in order to receive 
at least three sealed competitive bids or proposals pursuant to the issuance of 
an IFB or RFP, respectively. An IFB will be used when the division is able to 
describe, by way of established specifications, exactly what it wishes to 
procure, and wants bidders to offer such at a specific price. An RFP will be 
used when the division knows generally what it wishes to procure in order to 
accomplish a certain goal(s) or objective(s) , and wants proposers to offer a 
solution(s) to address such need(s) at a specific price(s).
(2) When an RFP is used by the division, the RFP shall contain, at a minimum, 
the following:
(A) a general description of the goods to be provided and/or the services to be 
performed, and a specific identification of the goals or objectives to be 
achieved;
(B) a description of the format proposals must follow and the elements they must 
contain;
(C) the time and date proposals are due, and the location/person they are to be 
submitted to; and
(D) an identification of the criteria to be utilized in evaluating proposals and 
awarding a contract.
(3) Where time permits, the division shall advertise formal competitive 
solicitations, whether by IFB or RFP, in the Texas Register<ol>. The division 
may advertise such solicitations in other media determined appropriate by the 
division. In addition, the division shall provide a copy of the IFB or RFP to 
those vendors who have specifically expressed, in writing, an interest in 
providing certain goods or services to the division, and whose names and 
addresses are on file with the division.
(4)  For formal competitive solicitations where an IFB is used, the director or 
the director's designee shall award a contract to the qualified bidder 
submitting the lowest bid, except that the director may reject all bids if it is 
determined to be in the best interest of the state. In determining the lowest 
bid, an amount will be added to a nonresident bidder's bid equal to the amount a 
Texas resident bidder would be required to underbid a nonresident bidder to 
obtain a comparable contract in the state in which the nonresident bidder has 
its principal place of business. This added amount will only be used for 
evaluation purposes, and will not be included in the nonresident bidder's 
contract if one is awarded. The contract shall be awarded by the issuance of a 
written purchase order. At the time the purchase order is issued, the division 
shall also notify, in writing, all other bidders of the contract award by 
certified mail, return receipt requested, or by overnight mail. Any information 
relating to the solicitation not made privileged from disclosure by law shall be 
made available for public disclosure after issuance of the purchase order 
pursuant to the Texas Open Records Act.
(5) For formal competitive solicitations where an RFP is used, the director or 
the director's designee(s) shall, prior to the deadline for receipt of 
proposals, develop and establish a comprehensive evaluation plan to be utilized 
by an evaluation committee in evaluating the proposals and awarding a contract. 
The evaluation plan shall be based upon the evaluation criteria identified in 
the RFP. If the evaluation criteria include price as one of the criteria, an 
amount will be added to a nonresident proposer's price proposal equal to the 
amount a Texas resident proposer would be required to underbid a nonresident 
proposer to obtain a contract in the state in which the nonresident proposer has 
its principal place of business. This added amount will only be used for 
evaluation purposes, and will not be included in the nonresident proposer's 
contract if one is awarded. All proposals received will be reviewed by an 
evaluation committee appointed by the director. The evaluation committee will 
evaluate and rank all proposals in accordance with the evaluation plan. As part 
of the evaluation process, the top proposers may be requested to make an oral 
presentation to the committee, which may include an inspection trip to the 
proposer's facilities at a mutually agreeable time and place. The evaluation 
committee will then make a final ranking of all proposers who have made a 
presentation, based upon the presentation and the evaluation plan. The committee 
will forward its written recommendation to the director, who will review the 
recommendation and make the final decision, including the acceptance of a 
proposal in whole or in part. The director or the director's designee(s) shall 
then attempt to negotiate a contract with the selected proposer. If a contract 
cannot be negotiated with the selected proposer at a price the director 
determines reasonable, negotiations with that proposer will be terminated, and 
negotiations will be undertaken with the next highest ranked proposer. This 
process will be continued until a contract is executed by a proposer and the 
director, or negotiations with the highest ranked proposers are terminated. If 
no contract is executed, the director or the director's designee(s) may attempt 
to negotiate a contract with any of the other proposers. Negotiations will 
continue until a contract is executed or all proposals are rejected. If a 
contract is executed, the division shall promptly notify, in writing, all other 
proposers of the contract award by certified mail, return receipt requested, or 
by overnight mail. Any information relating to the solicitation not made 
privileged from disclosure by law shall be made available for public disclosure 
after execution of the contract pursuant to the Texas Open Records Act.
(e) Preferences.
(1) In the award of any contract for the purchase or lease of services, 
preference shall be given to a Texas resident bidder or proposer. Preference 
means the right of a Texas resident bidder or proposer to receive a contract 
award over a nonresident bidder or proposer, the cost to the state and quality 
being equal.
(2)  In the award of any contract for the purchase or lease of goods, preference 
shall be given to goods produced in Texas. Goods produced in Texas shall have 
the same preference as services offered by a Texas resident bidder or proposer.
(3) In the award of any contract for the purchase or lease of goods or services 
where the goods or services produced in Texas or offered by a Texas resident 
bidder or proposer are not equal in cost and quality, preference shall be given 
to those goods or services produced in another state or offered by a bidder or 
proposer from another state over those goods or services produced in a foreign 
country or offered by a bidder or proposer from a foreign country, the cost to 
the state and quality being equal.
(4) After application of the preferences established in paragraphs (1)-(3) of 
this subsection, preference shall be given to a minority business, as defined in 
the State Lottery Act, sec.2. 06.
(5) If, after application of the preferences established in paragraphs (1)-(4) 
of this subsection, a tie continues, the contract award shall be made by the 
drawing of lots.
(6) A bidder or proposer entitled to a preference(s) under this subsection 
should claim the preference(s) in its bid or proposal. However, a preference(s) 
may be granted to a bidder or proposer who fails to claim the preference(s) if 
documents attached to the bid or proposal clearly indicate entitlement to the 
preference(s).
(f) Protests.
(1) Any bidder or proposer aggrieved by the terms of any formal competitive 
solicitation, or with any contract award made pursuant to such a solicitation, 
may protest the division's or the director's action. For the protest of a formal 
competitive solicitation, a protest must be filed, in writing, with the 
comptroller's general counsel within 72 hours after issuance of the IFB or RFP. 
For the protest of a contract award, a protest must be filed, in writing, with 
the comptroller's general counsel within 72 hours after receipt of notice of the 
contract award. Protests not filed timely will not be considered, and the 
protestant will be so notified, in writing, by the comptroller's general 
counsel.
(2) To be considered, a protest must contain:
(A) a specific identification of the statutory provision, rule provision, or 
procurement procedure allegedly violated;
(B) a brief statement of the relevant facts;
(C) an identification of the issue or issues to be resolved; and
(D) arguments and authorities in support of the protest;
(E) an affidavit that the contents of the protest are true and correct; and
(F) a certification that a copy of the protest (if to a contract award) has been 
served on the successful proposer.
(3) In the event of a timely-filed protest of a solicitation, the director shall 
not proceed with issuance of a purchase order or execution of a contract unless 
the comptroller determines, in writing, that such action is necessary to protect 
the interests of the state.
(4) In the event of a protest of a contract award, the successful proposer may 
file a written response to the protest within three business days after the 
comptroller's receipt of the protest.
(5)  The general counsel will review the protest, any response, and the 
solicitation file; prepare a written report with findings and recommendation; 
and deliver the written report to the deputy comptroller. The deputy comptroller 
will review the protest, any response, the contract file, and the general 
counsel's report, and will provide a recommendation to the comptroller. The 
comptroller will issue a written determination on the protest, which may include 
an order cancelling the solicitation or voiding the contract. The comptroller's 
written determination will be served, by certified mail, return receipt 
requested, on the protestant and the successful proposer (if any), and the 
determination shall be administratively final when issued.
(g) Contract terms.
(1) When determined appropriate by the director, a contract for the purchase or 
lease of goods or services related to the implementation, operation, or 
administration of the lottery shall provide for liquidated damages and a 
performance bond in an amount equal to the director's best available estimate of 
the revenue that would be lost by the state if the contractor fails to meet 
deadlines specified in the contract or materially fails to perform its 
contractual obligations in any other manner. When such contract terms are 
determined appropriate by the director, the IFB or RFP shall reflect such 
requirement.
(2) When determined appropriate by the director, a contract for the purchase or 
lease of goods or services related to the implementation, operation, or 
administration of the lottery shall provide that the contractor, when utilizing 
subcontractors, shall give a preference to minority businesses, as defined in 
the State Lottery Act, sec.2.06. When such contract term is determined 
appropriate by the director, the IFB or RFP shall reflect such requirement.
(3) A contract for the purchase or lease of goods or services relating to the 
implementation, operation, or administration of the lottery shall provide that 
the director may terminate the contract, without penalty, if an investigation 
made pursuant to the Act reveals that the person to whom the contract was 
awarded would not be eligible to receive a sales agent license under the State 
Lottery Act, sec.3.02. An IFB or RFP may require that bidders or proposers 
provide in their bids or proposals sufficient information to allow the division 
to determine whether the bidder or proposer meets the eligibility requirements 
for a sales agent license.
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 16, 1991.
TRD-9115919
Martin Cherry
Chief, General Law Section
Comptroller of Public Accounts
Earliest possible date of adoption: January 20, 1992
For further information, please call: (512) 463-4028
       
TITLE 37. PUBLIC SAFETY AND CORRECTIONS
Part I. Texas Department of Public Safety
Chapter 13. Controlled Substances and Precursor/Apparatus Rules and Regulations
Subchapter A. General Provisions
37 TAC sec.13.1
The Texas Department of Public Safety proposes an amendment to sec.13.1, 
concerning general information. The amendment to this section adds new 
paragraphs (5) and (45) with definitions for a concurring practitioner and 
registration. Other paragraphs are renumbered accordingly. Paragraph (44) is 
amended by adding language that requires a registrant to have a current valid 
registration and deleting reference to the Act, sec.481.063.
Melvin C. Peeples, assistant chief of fiscal affairs, as 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.
B. C. Lyon, captain, narcotics service, 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 clarification on the part of 
practitioners as to who is eligible for designation as their agent. There will 
be no effect on small businesses. There is no anticipated economic cost to 
persons who are required to comply with the section as proposed.
Comments on the proposal may be submitted to John C. West, Jr., Texas Department 
of Public Safety, Box 4087, Austin, Texas 78773-0001, (512) 465-2000.
The amendment is proposed under the Health and Safety Code, which provides the 
Texas Department of Public Safety with authority to promulgate rules and 
regulations to administer the provisions of this Act.
sec.13.1. General Information.
(a) Definitions. The following words and terms, when used in this chapter, shall 
have the following meanings, unless the context clearly indicates otherwise.
(1)-(4) (No change.)
<nl>(5) Concurring practitioner -A physician, dentist, veterinarian, or 
podiatrist who is a registrant as defined by the Act, sec.481.002(44), and who:
<nl>(A) examines the patient of another physician, dentist veterinarian, or 
podiatrist who is not a registrant as defined by the Act,  s481.002(44), but is 
currently licensed by the appropriate state licensing board;
<nl>(B) concurs with the diagnosis and proposed treatment made by the other; and
<nl>(C) dispenses or prescribes the proper controlled substance to the patient 
acting in the usual course of professional practice.
<nl>(6)<ol>[(5)] Controlled substance -A substance, including a drug and an 
immediate precursor, listed in Schedules I-V or Penalty Groups 1-4 of the Act.
<nl>(7)<ol>[(6)] Counterfeit/simulated controlled substance-
(A) a substance that is purported to be a controlled substance but is chemically 
different from the controlled substance it is purported to be; or
(B) a controlled substance which, or the container or labeling of which, without 
authorization bears the trademark, tradename, or other identifying mark, 
imprint, number, or device, or any likeness thereof, of a manufacturer, 
distributor, or dispenser other than the person who in fact manufactured, 
distributed, or dispensed the substance.
<nl>(8)<ol>[(7)] Deliver-To transfer, actually or constructively, to another a 
controlled substance, counterfeit substance, or drug paraphernalia, regardless 
of whether there is an agency relationship. The term includes offering to sell a 
controlled substance, counterfeit substance, or drug paraphernalia.
<nl>(9)<ol>[(8)] Delivery or drug transaction-The act of delivering.
<nl>(10)<ol>[(9)] Department-The Texas Department of Public Safety.
<nl>(11)<ol>[(10)] Designated agent-An individual designated under the Act, 
sec.481.073 to communicate a practitioner's instructions to a pharmacist.
<nl>(12)<ol>[(11)] Director-The director of the department or an employee of the 
department designated by the director.
<nl>(13)<ol>[(12)] Dispense-The delivery of a controlled substance in the course 
of professional practice or research, by a practitioner or person acting under 
the lawful order of a practitioner, to an ultimate user or research subject. The 
term includes the prescribing, administering, packaging, labeling, or 
compounding necessary to prepare the substance for delivery.
<nl>(14)<ol>[(13)] Dispenser-A practitioner, institutional practitioner, 
pharmacist, or pharmacy that dispenses a controlled substance.
<nl>(15)<ol>[(14)] Distribute-To deliver a controlled substance other than by 
administering or dispensing the substance.
<nl>(16)<ol>[(15)]  Distributor -A person who distributes.
<nl>(17)<ol>[(16)]  Drug -A substance, other than a device or a component, part, 
or accessory of a device that is:
(A) recognized as a drug in the official United States Pharmacopoeia<ol>, 
official Homeopathic Pharmacopoeia of the United States<ol>, official National 
Formulary <ol>, or a supplement to either pharmacopoeia or the formulary;
(B) intended for use in the diagnosis, cure, mitigation, treatment, or 
prevention of disease in man or animals;
(C) intended to affect the structure or function of the body of man or animals 
but is not food; or
(D) intended for use as a component of a substance described in subparagraphs 
(A)-(C) of this paragraph.
<nl>(18)<ol>[(17)] Drug Enforcement Administration-The Drug Enforcement 
Administration of the United States Department of Justice or its successor 
agency.
<nl>(19)<ol>[(18)] Federal Controlled Substances Act-The Federal Comprehensive 
Drug Abuse Prevention and Control Act of 1970 (21 United States Code, sec.801 et 
seq.) or its successor statute.
<nl>(20)<ol>[(19)] Hospital-
(A) General hospital-Any establishment offering services, facilities, and beds 
for use beyond 24 hours for two or more nonrelated individuals requiring 
diagnosis, treatment, or care for illness, injury, deformity, abnormality, or 
pregnancy, and regularly maintaining at least clinical laboratory services, 
diagnostic x-ray services, treatment facilities which would include surgery 
and/or obstetrical care, and other definitive medical or surgical treatment of 
similar extent.
(B)  Special hospital-Any establishment offering services, facilities, and beds 
for use beyond 24 hours for two or more nonrelated individuals who are regularly 
admitted, treated, and discharged and require services more intensive than room, 
board, personal services, and general nursing care and which has clinical 
laboratory facilities, diagnostic x-ray facilities, treatment facilities, and/or 
other definitive medical treatment and has a medical house staff in regular 
attendance, and maintains records of the clinical work performed for each 
patient.
(C) Ambulatory surgical centers (if licensed)-Approved surgical centers licensed 
by the state hospital licensing board and approved by Medicaid to do day surgery 
when patient is not admitted beyond a 24-hour period.
<nl>(21)<ol>[(20)] Institutional practitioner-An intern, resident physician, 
fellow, or person in an equivalent professional position who:
(A) is not licensed by the appropriate state professional licensing board;
(B) enrolled in a bona fide professional training program in a base hospital or 
institutional training facility registered by the Drug Enforcement 
Administration; and
(C) is authorized by the base hospital or institutional training facility to 
administer, dispense, or prescribe controlled substances.
<nl>(22)<ol>[(21)] Lawful possession -The possession of a controlled substance 
that has been obtained in accordance with state or federal law.
<nl>(23)<ol>[(22)] Long-term care facility-An establishment licensed by the 
Texas Department of Health, Bureau of Long Term Care, which maintains emergency 
medical kits and furnishes (in single or multiple facilities) food and shelter 
to four or more persons unrelated to the proprietor and, in addition, provides 
minor treatment under the direction and supervision of a physician licensed by 
the Texas State Board of Medical Examiners or services which meet some need 
beyond the basic provisions of food, shelter, and laundry.
<nl>(24)<ol>[(23)] Manufacture-The production, preparation, propagation, 
compounding, conversion, or processing of a controlled substance other than 
marihuana, directly or indirectly by extraction from substances of natural 
origin, independently by means of chemical synthesis, or by a combination of 
extraction and chemical synthesis, and includes the packaging or repackaging of 
the substance or labeling or relabeling of its container. However, the term does 
not include the preparation, compounding, packaging, or labeling of a controlled 
substance:
(A) by a practitioner as an incident to his administering or dispensing of a 
controlled substance in the course of professional practice; or
(B) by a practitioner, or by an authorized agent under the supervision of the 
practitioner, for or as an incident to research, teaching, or chemical analysis 
and not for delivery.
<nl>(25)<ol>[(24)] Medical purpose -The use of a controlled substance for 
relieving or curing a mental or physical disease or infirmity.
<nl>(26)<ol>[(25)] Medication order-An order from a practitioner to dispense a 
drug to a patient in a hospital for immediate administration while the patient 
is in the hospital or for emergency use on the patient's release from the 
hospital.
<nl>(27)<ol>[(26)] Official prescription blank-The triplicate prescription form 
supplied to practitioners at cost by the department for prescribing, 
administering, dispensing, or delivering Schedule II controlled substances.
<nl>(28)<ol>[(27)] Patient-A human for whom or an animal for which a drug is 
administered, dispensed, delivered, or prescribed by a practitioner.
<nl>(29)<ol>[(28)] Person-An individual, corporation, government business trust, 
estate, trust, partnership, association, or any other legal entity.
<nl>(30)<ol>[(29)] Pharmacist-A person licensed by the Texas State Board of 
Pharmacy to practice pharmacy and who acts as an agent for a pharmacy.
<nl>(31)<ol>[(30)] Pharmacist-in-charge -The pharmacist designated on a pharmacy 
license as the pharmacist who has the authority or responsibility for the 
pharmacy's compliance with the Act and other laws relating to pharmacy.
<nl>(32)<ol>[(31)] Pharmacist intern-An undergraduate student enrolled in the 
professional sequence of a college of pharmacy approved by the Texas State Board 
of Pharmacy and participating in a school-based, board-approved internship 
program or a graduate of a college of pharmacy who is participating in a board-
approved internship.
<nl>(33)<ol>[(32)] Pharmacy-A facility licensed by the Texas State Board of 
Pharmacy where a prescription for a controlled substance is received or 
processed in accordance with state or federal law.
<nl>(34)<ol>[(33)] Physician assistant, assistant, or P.A.-Refer specifically to 
a person who is a graduate of a physician assistant training program approved by 
the Council on Allied Health Education Accreditation of the American Medical 
Association or a person who has passed the examination given by the national 
commission on the certification of physician's assistants.
<nl>(35)<ol>[(34)] Possession-Actual care, custody, control, or management.
<nl>(36)<ol>[(35)] Practitioner-
(A) a physician, dentist, veterinarian, podiatrist, scientific investigator, or 
other person licensed, registered, or otherwise permitted to distribute, 
dispense, analyze, conduct research with respect to, or administer a controlled 
substance in the course of professional practice or research in this state;
(B) a pharmacy, hospital, or other institution licensed, registered, or 
otherwise permitted to distribute, dispense, conduct research with respect to, 
or administer a controlled substance in the course of professional practice or 
research in this state; or
(C) a person practicing in and licensed by another state as a physician, 
dentist, veterinarian, or podiatrist, having a current Drug Enforcement 
Administration registration number, who may legally prescribe Schedule II, III, 
IV, or V controlled substances in that state.
<nl>(37)<ol>[(36)] Prescribe-The act of a practitioner to authorize a controlled 
substance to be dispensed to an ultimate user.
<nl>(38)<ol>[(37)] Prescription-An order by a practitioner to a pharmacist for a 
controlled substance for a particular patient that specifies:
(A) the date of issue;
(B) the name and address of the patient or, if the controlled substance is 
prescribed for an animal, the species of the animal and the name and address of 
its owner;
(C) the name and quantity of the controlled substance prescribed with the 
quantity shown numerically followed by the number written as a word if the order 
is written or, if the order is communicated orally or telephonically, with the 
quantity given by the practitioner and transcribed by the pharmacist 
numerically; and
(D)  directions for the use of the drug.
<nl>(39)<ol>[(38)] Principal place of business-A location where a person 
manufactures, distributes, dispenses, analyzes, or possesses a controlled 
substance. The term does not include a location where a practitioner dispenses a 
controlled substance on an outpatient basis unless the controlled substance is 
stored at that location.
<nl>(40)<ol>[(39)] Processing fee-The fee charged each applicant for 
registration or reregistration for the costs necessary for processing the 
application and administration of the Act.
<nl>(41)<ol>[(40)] Production-Includes the manufacturing, planting, cultivating, 
growing, or harvesting of a controlled substance.
<nl>(42)<ol>[(41)] Provider pharmacy -A pharmacy that has a signed agreement 
with a long-term care facility (LTCF) to provide controlled substances and be 
responsible for obtaining controlled substances registration for an emergency 
medical kit in the LTCF.
<nl>(43)<ol>[(42)] Readily retrievable -The maintenance of records required to 
be kept by the Act or these rules by automatic data processing or mechanized 
record-keeping systems in such a manner that they can be separated from all 
records in a reasonable time or records maintained in a manner on which certain 
items are asterisked, redlined, or in some other manner visually identifiable 
apart from other items appearing on the records.
<nl>(44)<ol>[(43)] Registrant-A person who <nl>holds a current valid 
registration  <ol>[is registered under the Act, sec.481.063].
<nl>(45) Registration-The certificate issued by both the department under the 
Act or by the Drug Enforcement Administration under the Federal Controlled 
Substance Act authorizing a registrant to distribute, dispense, analyze, conduct 
research with respect to, or administer a controlled substance in the course of 
professional practice or research in this state unless the context clearly 
indicates only the registration of the department or the registration of the 
Drug Enforcement Administration.
<nl>(46)<ol>[(44)] Registration fee-The processing fee.
<nl>(47)<ol>[(45)] Substitution-The dispensing of a drug or a brand of drug 
other than that which is ordered or prescribed.
<nl>(48)<ol>[(46)] Supervising physician-A physician licensed by the Texas State 
Board of Medical Examiners either as a doctor of medicine or doctor of 
osteopathic medicine who is assuming responsibility and legal liability for the 
services rendered by the physician assistant and who has been approved by the 
board to supervise a specific physician assistant.
<nl>(49)<ol>[(47)] Triplicate prescription form-An official department 
prescription form used to administer, dispense, prescribe, or deliver a Schedule 
II controlled substance to an ultimate user.
<nl>(50)<ol>[(48)] Ultimate user -A person who has lawfully obtained and 
possesses a controlled substance for the person's own use, for the use of a 
member of the person's household, or for administering to an animal owned by the 
person or by a member of the person's household.
(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 9, 1991.
TRD-9115757
James R. Wilson
Director
Texas Department of Public Safety
Earliest possible date of adoption: January 20, 1992
For further information, please call: (512) 465-2000
       
Subchapter B. Registration
37 TAC sec.13.15, sec.13.29
The Texas Department of Public Safety proposes an amendment to sec.13.15, and 
new sec.13.29, concerning registration. Paragraph (1) of sec.13.15 is amended to 
include designated agent as a person not needing to register and can lawfully 
possess controlled substances under the Texas Controlled Substances Act. New 
sec.13.29, entitled "Agent or Designated Agent" is proposed to specify the 
qualifications that a person so designated is required to meet. Also, a 
designating practitioner shall maintain and disseminate a current list of 
designated agents.
Melvin C. Peeples, assistant chief of fiscal affairs, 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.
B. C. Lyon, captain, narcotics service, 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 ensure the public 
that only authorized persons by statute may transmit a practitioner's 
instructions to a pharmacist to dispense a controlled substance. 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 John C. West, Jr., Texas Department 
of Public Safety, Box 4087, Austin, Texas 78773-0001, (512) 465-2000.
The amendment and new section are proposed under the Health and Safety Code, 
sec.481.064, which provides the Texas Department of Public Safety with authority 
to promulgate rules and regulations to administer the provisions of this Act.
sec.13.15. Persons Exempt from Registration. The following persons need not 
register and may lawfully possess controlled substances under the Texas 
Controlled Substances Act (the Act):
(1) an agent<nl>, designated agent,<ol> or employee of any registered 
manufacturer, distributor, analyzer, or dispenser of any controlled substance if 
he is acting in the usual course of his business or employment;
(2)-(9) (No change.)
sec.13.29. Agent or Designated Agent.
(a) A practitioner may not designate as an agent another practitioner who is not 
a registrant.
(b)  A designated agent must be:
(1) a registered nurse licensed in this state;
(2) a vocational nurse licensed in this state;
(3) a physician assistant licensed in this state; or
(4) an employee located in the designating practitioners office who is a member 
of the health care staff of the office.
(c) A designating practitioner shall maintain in the practitioner's usual place 
of business a current written list of persons designated as agents.
(d) Each time a person is added to or deleted from the list, a practitioner 
shall provide the current list to all pharmacists who have requested such a 
list.
(e) Upon request of an investigation listed in the Health and Safety Code, 
sec.481.073(a), a practitioner shall make the current designated agent list 
available to the investigator.
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-9115756
James R. Wilson
Director
Texas Department of Public Safety
Earliest date of adoption: January 20, 1992
For further information, please call: (512) 465-2000
       
Subchapter C. Security
37 TAC sec.13.43
The Texas Department of Public Safety proposes an amendment to sec.13.43, 
concerning minimum security controls for all other registrants. Subsection (d) 
is added, which refers to the penalty for failure to maintain strict security 
and proper accountability of all controlled substances.
Melvin C. Peeples, assistant chief of fiscal affairs, 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.
B. C. Lyon, captain, narcotics service, has determined that for each year of the 
first five years the section is in effect the public benefit anticipated as a 
result of enforcing the section will be to ensure controlled substances are not 
diverted into the illicit market. There will be no effect on small businesses. 
There is no anticipated economic cost to persons who are required to comply with 
the section as proposed.
Comments on the proposal may be submitted to John C. West, Jr., Texas Department 
of Public Safety, Box 4087, Austin, Texas 78773-0001, (512) 465-2000.
The amendment is proposed under the Health and Safety Code, which provides the 
Texas Department of Public Safety with authority to promulgate rules and 
regulations to administer the provisions of this Act.
sec.13.43. Minimum Security Controls for All Other Registrants.
(a) -(c) (No change.)
<nl>(d) Failure to maintain strict security and proper accountability of all 
controlled substances may be considered a record-keeping violation as provided 
in the Act, sec.481.128, as well as a security requirement violation.
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-9115755
James R. Wilson
Director
Texas Department of Public Safety
Earliest date of adoption: January 20, 1992
For further information, please call: (512) 465-2000
       
Subchapter D. Record Keeping
37 TAC sec.13.66
The Texas Department of Public Safety proposes an amendment to sec.13.66, 
concerning written and oral prescriptions. Subsection (g)(3) is amended by 
revising the time period from the second to the seventh day after the date of 
issuance of a prescription for which a Schedule II controlled substance may be 
obtained. Amendment to subsection (j)(1) corrects a previous typographical 
error.
Melvin C. Peeples, assistant chief of fiscal affairs, 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.
B. C. Lyon, Captain, narcotics service, 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 an increased time limit up to seven 
days in which to get a Schedule II controlled substance prescription filled. 
There will be no effect on small businesses. There is no anticipated economic 
cost to persons who are required to comply with the section as proposed.
Comments on the proposal may be submitted to John C. West, Jr., Texas Department 
of Public Safety, Box 4087, Austin, Texas 78773-0001, (512) 465-2000.
The amendment is proposed under the Health and Safety Code, sec.481.064, which 
provides the Texas Department of Public Safety with authority to promulgate 
rules and regulations to administer the provisions of this Act.
sec.13.66. Written and Oral Prescriptions.
(a)-(f) (No change.)
(g) All prescriptions for Schedule II controlled substances must be on the 
triplicate prescription form and contain all information required in the Act, 
sec.481.075(d) and (e).
(1)-(2) (No change.)
(3) No prescription for Schedule II controlled substances shall be filled after 
the end of the <nl>seventh <ol> [second] day <nl>after <ol> [following] the 
<nl>date <ol> [day] on which the prescription <nl>is<ol> [was] issued.
(h)-(i) (No change.)
(j) A practitioner violates the Act, sec.481.074 or sec.481.075, if such 
practitioner:
(1) issues prescriptions for or dispenses controlled substances to a person 
known to be <nl>a<ol> [an] habitual user of controlled substances, or to a 
person who the practitioner should have known was a habitual user of controlled 
substances. A practitioner administering or dispensing (but not prescribing) 
narcotic drugs listed in any schedule of the Act to a narcotic-dependent person 
may do so only as authorized under the provisions of the Code of Federal 
Regulations, Title 21, Chapter 2, sec.1306.7;
(2)-(3)  (No change.)
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on December 9, 1991.
TRD-9115754
James R. Wilson
Director
Texas Department of Public Safety
Earliest date of adoption: January 20, 1992
For further information, please call: (512) 465-2000
       
TITLE 40. SOCIAL SERVICES AND ASSISTANCE
Part I. Texas Department of Human Services
Chapter 29. Purchased Health Services
Subchapter L. General Administration
40 TAC sec.29.1101, sec.29.1104
The Texas Department of Human Services proposes an amendment to sec.29.1102, 
concerning payments for laboratory and x-ray services, radiation therapy, 
physical therapists' services, physician services, podiatry services, 
chiropractic services, optometric services, ambulance services, dentists' 
services, and psychologists' services in its Purchased Health Services chapter. 
The department is also proposing the repeal of sec.29.1104, concerning 
reasonable charge in its Purchased Health Services chapter. In addition, a new 
sec.29.1104, regarding Texas Medicaid reimbursement methodology, is being 
proposed. The purpose of the amendment, repeal, and new section is to implement 
a reimbursement methodology which is based upon historical payments adjusted to 
account for the adequacy of access to health care services, or the resources 
required by the economically efficient provider to produce such services.
The new reimbursement methodology will replace the existing Medicare profiling 
system in which reimbursement fees are based upon a reasonable charge 
methodology. Medicare will no longer maintain this system but will instead adopt 
a resource-based relative value system. Implementation is projected to be 
January 1, 1992. With the exception of the access-based reimbursement, the Texas 
Medicaid Reimbursement Methodology will be based upon the Medicare initiative.
The amended and proposed sections specify the providers and services covered by 
the methodology, the methodology for reimbursement, the policy that there will 
be no geographic or specialty differential, and the timing of and requirements 
for the fee review process.
Reimbursement for ambulance services will continue to be in accordance with a 
reasonable charge methodology. Reimbursement for clinical diagnostic laboratory 
services will continue to be based upon the Medicare-established fee schedule.
Burton F. Raiford, interim commissioner, 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 proposal. The effect on state 
government for the first five-year period the proposal will be in effect is an 
estimated additional cost of $6,017,760 for fiscal year 1992; $10,312,400 for 
fiscal year 1993; $12,497,938 for fiscal year 1994; $14,778,267 for fiscal year 
1995; and $17,334,914 for fiscal year 1996. There will be no fiscal implications 
for local government as a result of enforcing or administering the proposal.
Mr. Raiford 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 enhanced reimbursement to primary care providers assuring 
continued provider participation in the Medicaid program and accessability of 
services to clients. There will be no effect on small businesses. There is no 
anticipated economic cost to persons who are required to comply with the 
proposed sections.
Questions about the content of this proposal may be directed to Joseph B. 
Branton, Jr. at (512) 338-6505 in DHS's Purchased Health Services. Comments on 
the proposal may be submitted to Nancy Murphy, Agency Liaison, Policy and 
Document Support-347, Texas Department of Human Services E-503, P.O. Box 149030, 
Austin, Texas 78714-9030, within 30 days of publication in the Texas Register.
DHS has scheduled a public hearing concerning this proposal. The hearing will 
begin at 9 a.m. on January 9, 1992, in the public hearing room on the first 
floor of the John H. Winters Building, 701 West 51st Street, Austin. A copy of 
this proposal is being sent to each DHS field office, where it will be available 
for public review.
The amendment and new section are proposed under the Human Resources Code, Title 
2, Chapters 22 and 32, which provides the department with the authority to 
administer public and medical assistance programs.
sec.29.1102. Payments for Laboratory and X-ray Services, Radiation Therapy, 
Physical Therapists' Services, Physician Services, Podiatry Services, 
Chiropractic Services, Optometric Services, Ambulance Services, Dentists' 
Services, and Psychologists' Services. Subject to qualifications, limitations, 
and exclusions as provided in this chapter, payment to eligible providers [for 
laboratory and X-ray services, radiation therapy, physical therapists' services, 
physician services, podiatry services, chiropractic services, optometric 
services, ambulance services, dentists' services, and psychologists' services, 
other than inpatient or outpatient services of a Title XIX hospital,] must not 
exceed <nl>the lesser of the provider's billed amount or the amount derived from 
the methodology described  <ol>[the reasonable charge for a specific service as 
provided] in sec.29.1104 of this title (relating to <nl>Texas Medicaid 
Reimbursement Methodology <ol>[Reasonable Charges]).
sec.29.1104. Texas Medicaid Reimbursement Methodology (TMRM).
(a)  Reimbursement for physicians and certain other practitioners.
(1)  Introduction. Except as otherwise specified, the TMRM for covered services 
provided by physicians and certain other practitioners employs a prospective 
payment system which is based upon the Texas Department of Human Services' 
(DHSs') determination of adequacy of access to health care services as described 
in this section, or the actual resources required by an economically efficient 
provider to produce each individual service.
(A) There shall be no geographical or specialty reimbursement differential for 
individual services.
(B) The fees for individual services will be reviewed at least every two years 
and will be based upon either:
(i) historical payments, with adjustments, to ensure adequate access to 
appropriate health care services; or
(ii) actual resources required by an economically efficient provider to produce 
each individual service.
(2) Definitions. The following words and terms, when used in this section, shall 
have the following meanings, unless the context clearly indicates otherwise.
(A) Access-based reimbursement fees (ABRF)-Fees for individual services based 
upon historical payments adjusted, where the department deems necessary, to 
account for deficiencies relating to the adequacy of access to health care 
services as defined in subparagraph (B) of this paragraph.
(B) Adequacy of access-Measures of adequacy of access to health care services 
include, but are not limited to, the following determinations:
(i) adequate participation in the Medicaid program by physicians and other 
practitioners; and/or
(ii) the ability of the eligible Medicaid population to receive adequate health 
care services in an appropriate setting.
(C)  Resource-based reimbursement fees (RBRF)-Fees for individual services based 
upon DHS's determination of the resources required by an economically efficient 
provider to produce individual services. An RBRF is defined mathematically by 
the following formula: RBRF1 = (RVUw-1 + RVUo-1 + RVUm-1) * CF where, RBRF1 = 
Resource-Based Reimbursement Fee for Service 1 RVUw-1 = Relative Value Unit for 
Work for Service 1 RVUo-1 = Relative Value Unit for Overhead for Service 1 RVUm-
1 = Relative Value Unit for Malpractice for Service 1 CF = Conversion Factor
(D) Conversion factor-The dollar amount by which the sum of the three cost 
component RVUs is multiplied in order to obtain a reimbursement fee for each 
individual service. The initial value of the conversion factor is $26,873. The 
conversion factor will be updated based on the adjustments described in 
subparagraph (E) of this paragraph at the beginning of each state fiscal year 
biennium. DHS may, at its discretion, develop and apply multiple conversion 
factors for various classes of service such as obstetrics, pediatrics, general 
surgeries, and/or primary care services.
(E)  Conversion factor adjustments-The biennium adjustment of the conversion 
factor is composed of the following two components.
(i) Inflation adjustment-To account for general inflation, the conversion factor 
is adjusted by one-half of the forecasted rate of change of the implicit price 
deflator-personal consumption expenditures (IPD-PCE). To inflate the conversion 
factor for the prospective period, DHS uses the lowest feasible IPD-PCE forecast 
consistent with the forecasts of nationally recognized sources available to DHS 
at the time of preparation of the conversion factor(s).
(ii) Access-based adjustment -Adjustments to the conversion factor may also be 
made to ensure adequacy of access as defined in subparagraph (B) of this 
paragraph.
(F) Relative value units (RVUs)-The relative value assigned to each of the three 
individual components which comprise the cost of providing individual Medicaid 
services. The three cost components of each reimbursement fee are intended to 
reflect the work, overhead, and professional liability expense required to 
produce each individual service. The RVUs that are employed in the TMRM must, 
except as otherwise specified, be based upon the RVUs of the individual services 
as specified in the Medicare fee schedule. DHS will review any changes to or 
revisions of the various Medicare RVUs and, if applicable, DHS adopts the 
changes as part of the TMRM.
(3) Calculating the payment amounts. The fee schedule that results from the TMRM 
must be composed of two separate components:
(A) the access-based fees; and
(B) the resource-based fees which must be composed of RVUs for the work, 
overhead, and malpractice components. The sum of these components must then be 
multiplied by the conversion factor to produce a reimbursement fee for each 
individual service.
(b) Reimbursement for ambulance services. Ambulance services are reimbursed in 
accordance with a reasonable charge methodology. DHS or its designee defines and 
determines reasonable charges and payments based on reasonable charges as 
follows.
(1) A reasonable charge is a charge for a specific service which is the lowest 
of:
(A) the provider's customary charge for that service;
(B) the prevailing charges made for similar services in the geographic locality; 
or
(C) the actual charge of the eligible provider.
(2) DHS or its designee uses a statistical base for making reasonable charge 
determinations. The statistical base is comprised of individual charges gathered 
from available sources, including Medicare (Title XVIII) and Medicaid (Title 
XIX).
(3) Determination of reasonable charges, as set forth in this section and 
established by the Texas Board of Human Services, is made in accordance with 
applicable federal requirements. Payments for services provided must not exceed 
the Medicare allowable charges.
(c) Reimbursement for clinical diagnostic laboratory services. Clinical 
diagnostic laboratory tests performed in a physician's office, by an independent 
laboratory, or by a hospital laboratory for its outpatients are reimbursed on 
the basis of the Medicare-established fee schedule.
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 13, 1991.
TRD-9115875
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
       
40 TAC sec.29.1104
(Editor's note: The text of the following section proposed for repeal will not 
be published. The section may be examined in the offices of the Texas Department 
of Human Services or in the Texas Register office, Room 245, James Earl Rudder 
Building, 1019 Brazos Street, Austin.)
The repeal is proposed under the Human Resources Code, Title 2, Chapters 22 and 
32, which provides the department with the authority to administer public and 
medical assistance programs.
sec.29.1004. Reasonable Charges.
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 13, 1991.
TRD-9115876
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