Adopted Sections An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 16. ECONOMIC REGULATION Part I. Railroad Commission of Texas Chapter 5. Transportation Division Subchapter W. Registration of Commercial Carriers 16 TAC sec.5.502 The Railroad Commission of Texas adopts an amendment to sec.5.502 concerning applications for registration of commercial motor vehicles, without changes to the proposed text as published in the February 18, 1992, issue of the Texas Register (17 TexReg 1375). The amendment, which implements a fee increase in accordance with legislative action taken by the 72nd Legislature, sets the commercial motor vehicle registration fee at $10 per vehicle when a supplemental equipment report is required to be filed. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Motor Carrier Act, Texas Civil Statutes, Article 911b, sec.4(a)(13, which requires all commercial motor vehicles to be registered with the commission, and which requires a registration fee of $10 per vehicle. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 30, 1992. TRD-9204469 Lena Guerrero Chairman Railroad Commission of Texas Effective date: April 21, 1992 Proposal publication date: February 18, 1992 For further information, please call: (512) 463-7095 TITLE 25. HEALTH SERVICES Part II. Texas Department of Mental Health and Mental Retardation Chapter 404. Protection of Clients and Staff Subchapter E. Rights of Persons Receiving Mental Health Services 25 TAC sec.sec.404.151-404.166 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts new sec.sec.404.151-404.166. Sections 404.153-404.155, 404.157-404.163, and 404.165 are adopted with changes to the proposed text as published in the February 11, 1992, issue of the Texas Register (16 TexReg 1185). Sections 404.151, 404.152, 404.156, 404.164, and 404.166 are adopted without changes and will not be republished. Exhibit A, "Patient's Bill of Rights," is also adopted with changes. The new sections are adopted contemporaneously with the adoption of the repeal of the subchapter they would replace, known as Chapter 405, Subchapter L, governing client rights-mental health services. The purpose of the new subchapter is to update and delineate rights of persons receiving mental health services, and to extend those rights to persons receiving mental health services at private psychiatric facilities licensed by TXMHMR. Section 404.153 is changed on adoption to add definitions of "intrusive searches," the "Office of Standards and Quality Assurance," and "unusual medications." Section 404.154 is revised to include the right to be free from intrusive searches of person or possessions, unless clinically justified and ordered by a physician. The term "handicap" is replaced with "disability" in (a)(1) and (24). Section 404.155 is revised to include the right of each adult individual admitted to an inpatient program to have the department facility, community center, or private psychiatric center to be provided information about the right to make health care decisions and execute advance directives as allowed by state law. Section 404.155(c)(1)(C) is revised to require that when an order is obtained authorizing the opening of an individual's mail suspected to contain contraband, the individual shall open the mail in the presence of two members of the treatment team. It is clarified that any cash or articles placed in appropriate safekeeping for an individual must be accessible to the individual. Section 404.157(b)(1) is clarified to indicate that an individual may orally withdraw a request for release. Any staff member receiving such a request must put it in writing. The section is revised to include the right of all individuals voluntarily admitted to inpatient services to be informed of their rights in a way the individual can understand prior to admission to services. The term "additional" is deleted from sec.404.158(a)(2) and sec.404.159(a)(2). In sec.404.160, it is clarified that the rights handbook will be distributed to persons receiving services in private psychiatric hospitals operated by community centers. In sec.404.161, it is clarified that the Patient's Bill of Rights must be provided to persons receiving services in private psychiatric facilities not operated by community centers. Section 404.162 is revised to require that individuals be notified of how complaints may be filed within 24 hours of admission into services. It is clarified that department facilities and community centers shall use the "Receipt of Information Record" (MHRS 9-1 Form) to document that the individual received an oral explanation of his or her rights. Section 404.163 is revised on adoption to clarify the rights protection officer is responsible for receiving complaints of alleged inadequate provision of services. References have been updated in sec.404.165. Exhibit A, "Patient's Bill of Rights," is revised as follows: The addresses of the Office of Standards and Quality Assurance, the Office of Consumer Services and Rights Protection, and Advocacy, Inc., are added. Right 21 is revised to include behavior therapy. A section on the special rights of persons receiving court-ordered services is added. Rights have been added addressing searches and transportation. A public hearing to accept oral testimony on the proposed sections was held March 19, 1992, in Austin. Ten individuals presented testimony, including representatives of three professional organizations (Texas Psychological Association, National Association of Social Workers, and Texas Society of Psychiatric Physicians), three advocacy organizations (TEXAMI, Advocacy, Inc., and the Texas Mental Health Consumers), and two others. In addition, written comments were received from three individuals, the Texas Psychological Association; Villa Rosa Hospital in San Antonio; the Mental Health and Mental Retardation Authority in Harris County; Deep East Texas Mental Health and Mental Retardation Services; Wichita Falls Community Mental Health and Mental Retardation Center; and Tri-County Mental Health and Mental Retardation Services. All commenters expressed support of the proposed sections, although all offered recommendations for changes. With regard to sec.404.154(15), a commenter noted that a statement about exceptions to the right to refuse treatment included in Chapter 405, Subchapter FF (relating to Consent to Treatment with Psychoactive Medication) seemed to encourage exceptions to the individual's right to refuse treatment. Another commenter noted that it did not seem constitutional, except in severe emergencies where a person presented imminent risk of harm to self or others, to base the right to refuse medication on an individual's commitment status. The department responds that exceptions to the right to refuse medication as outlined in Chapter 405, Subchapter FF are found in the Texas Health and Safety Code, and must be noted in this rule in order to ensure a full disclosure of fact to individuals receiving services. Several commenters recommended that the term "treating professional" replace "treating physician" in sec.404.155(a)(1)(C), (a)(6), and (b), as well as sec.404. 157(b). The commenters also recommended adding a definition of "treating professional" in sec.404.153. The commenters noted that the sections as proposed would restrict the psychologist's ability to appropriately treat his/her patient, and suggested that language in Chapter 401, Subchapter J (relating to Licensure of Private Psychiatric Hospitals) indicates that "treating professionals" are responsible for the individual's care. Many of the same commenters also recommended that psychologists be permitted to write orders with regard to opening a patient's mail in sec.404.155(a)(1)(C). Several commenters suggested that the proposed rules were exclusionary to psychologists with regard to treatment of individuals. The department responds that although "treating professionals" are indeed responsible for patient evaluation and treatment planning and implementation, the treating physician maintains the final authority for care and treatment. Although the special limitations on rights may be imposed on the recommendation of a treating professional, the treating physician, as the final authority, must write the order. A commenter noted that transportation to inpatient mental health facilities is sometimes accomplished in ways that deny the individual's right to be treated in a way that protects the individual's dignity and safety, such as in shackles in marked sheriff's vehicles, or in the same vans transporting criminals to prison facilities. The commenter noted that the Texas Health and Safety Code, sec.574.045(d) reads, "The patient may not be transported in a marked police or sheriff's car or accompanied by a uniformed officer unless other means are not available." The commenter further noted that the Health and Safety Code, sec.571. 002 reads, "The purpose of this subtitle is to provide to each person having severe mental illness access to humane care and treatment by...enabling the person to obtain necessary evaluation, care, treatment, and rehabilitation with the least possible trouble, expense, and embarrassment to the person and the person's family." The commenter noted that the definition of mental health services includes, "all services necessary to treat, care for, supervise, and rehabilitate mentally disordered and disabled persons," and suggested that failure to provide safe and dignified transportation to mental health facilities violated the department's responsibility to the individual. The commenter requested that the department take steps to protect the individual during transportation to, from, and between facilities providing mental health services. The department responds that language has been added in sec.404.154(28) which gives individuals the right to be transported to services in a way that protects the dignity and safety of the individual. A commenter requested clarification of whether or not a person could orally request to withdraw a request for release from inpatient services in sec.404. 157(b). The department responds that the intent is that an individual could file such an oral request, and clarifying language has been added. A commenter requested the deletion of language in sec.404.155(2) which notes that there may be limitations found in several department rules to the individual's right to the presumption of mental competency. The commenter noted that the right to a presumption of competency is guaranteed by law and cannot be overridden by departmental policy. The department responds that, in the absence of a judicial determination to the contrary, the person always maintains the right to the presumption of mental competency. However, there may be some situations, outlined in department rules specified in sec.404.155(2), in which the department must impose limitations on the right to insure the protection of the individual. Despite these limitations, the presumption of competency is not removed. A number of commenters requested that sec.404.158(f) be amended to allow up to 24 hours before an individual delivered to a facility, community center, or private psychiatric hospital be examined by a physician. Two commenters requested that public psychiatric facilities such as inpatient and crisis stabilization units operated by community mental health centers be allowed to temporarily accept persons into the unit for the purpose of conducting a preliminary examination on the verbal orders of the physician, and to conduct the examination as soon as possible within 24 hours of the time of apprehension. The department responds that the purpose of requiring an immediate examination is to avoid unnecessary incarceration of individuals. The requirement for an immediate examination upon arrival at the facility was implemented in Chapter 401, Subchapter J (relating to Licensure of Private Psychiatric Hospitals), and must apply to public facilities in order to ensure the same protection of civil rights and the same standard of care. A commenter suggested revising sec.404.158(1)(D) and sec.404.159(1)(D) to read, "the right to be released if the head of the department facility, community center, or private psychiatric hospital determines that none of the criteria for emergency detention no longer applies." The department responds that according to the Texas Health and Safety Code, sec.573.022, an individual must meet all three criteria for emergency detention if the individual is to be detained; therefore the language in the rule, which states that an individual must be released if one of the criteria does not apply, is correct. With regard to sec.404.163(b), a commenter suggested that public postings focus on the existence of the entire rights protection office, as opposed to including the name of the rights protection officer. The commenter noted that there may be several rights protection monitors in addition to the rights protection officer, and noted that calls directed only to the rights protection officer by name may not be responded to in a timely fashion in the event the rights protection officer is not available. The department responds that it is necessary that the rights protection officer be named in public postings to ensure that there is an individual functioning in that capacity and to ensure that individuals are aware of this individual. However, the rule does not preclude the listing of other staff members in the rights protection office in addition to the rights protection officer. With regard to sec.404.164(3), a commenter suggested that the requirement that supervisory personnel ensure that each employee receive training on the subject of rights of persons receiving mental health services at least once each calendar year represented an unfair burden on supervisory personnel. The commenter suggested that staff development officers were more appropriate to carry this task. The department responds that staff development is responsible for providing the training; however, the supervisor must ensure that the employee is scheduled for the training and receives any new rights material from staff development during the interim between annual trainings. A commenter from a community center noted that the estimated financial implications of complying with the sections as proposed was $3,600 per month or $42,000 annually. The department responds that no statewide financial implications could be identified. Operators of community centers have the option through the contract process to renegotiate contracts when there is an added financial burden as the result of policy. Two commenters expressed support of a version of a "Mental Health Miranda" which could be read to individuals immediately upon apprehension for emergency detention, and which would inform these individuals of their rights in their current situation. Several "Mental Health Mirandas" could be devised for use at appropriate times throughout the commitment process to ensure that individuals were made aware of their rights at all times. The department agrees such a process would be a useful tool; however, such a recommendation would require the cooperation of a number of agencies and organizations. Although the department will continue to pursue such a system, it is impossible to include such a requirement in the current sections. A commenter noted that the Patient's Bill of Rights does not address the special rights of an individual who has been involuntarily committed. The department responds that language has been added. The new sections are adopted under the Texas Health and Safety Code, sec.532. 015 (Texas Civil Statutes, Article 5547-202, sec.2.11), which provides the Texas Department of Mental Health and Mental Retardation with broad rulemaking powers; and under the Texas Health and Safety Code, sec.577.010 (Texas Mental Health Code, Article 5547-95), which provides the Texas Department of Mental Health and Mental Retardation with rulemaking powers specific to private psychiatric hospitals. sec.404.153. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Community center -A community mental health and mental retardation center organized pursuant to the Texas Mental Health and Mental Retardation Act, sec.3.01, as amended, Texas Civil Statutes, Articles 5547-201-5547-204, which provides mental health services. Department-The Texas Department of Mental Health and Mental Retardation. Department facilities -The state hospitals and state centers which provide mental health services, and their respective community-based programs. Emergency-A situation in which, in the opinion of the treating physician, the immediate use of medication, or, in the opinion of the treating physician or other appropriate professional, the immediate use of restrictive techniques is essential to interrupt imminent physical danger to self or others. Grounds privileges -Access, with or without supervision, to areas of the department facility or private psychiatric hospital away from an individual's living unit. Inpatient services -Residential services provided in a department facility, a licensed hospital unit, a licensed crisis stabilization unit, or a private psychiatric hospital. Intrusive searches -The tactile and/or visual examination of an individual's partially or fully unclothed body, personal belongings, or space designated for the storage of the individual's personal belongings. Intrusive searches do not include: (A) routine searches of belongings for contraband at the time of admission, return from pass, or transfer; (B) superficial external pat-downs by staff of the same sex; (C) daily room checks for housekeeping and chore completion; and (D) physical assessments by nurses and physicians. Mental health services-Includes all services concerned with research, prevention, and detection of mental disorders and disabilities and all services necessary to treat, care for, supervise, and rehabilitate mentally disordered and disabled persons, including persons mentally disordered and disabled from alcoholism and drug addiction. Office of Consumer Services and Rights Protection -The office located within the department's Central Office which maintains the toll-free telephone line 1 (800) 252-8154 to receive rights-related complaints and which is responsible for assisting persons receiving mental health services with needed services and rights protection. Office of Standards and Quality Assurance-The office located within the department's Central Office which is responsible for the department's standards and quality assurance function. Private psychiatric hospital-An establishment offering inpatient services, including treatment, facilities, and beds for use beyond 24 hours, for the primary purpose of providing psychiatric assessment and diagnostic services and psychiatric inpatient care and treatment for mental illness. Such services must be more intensive than room, board, personal services, and general medical and nursing care. Although substance abuse services may be offered, a majority of beds must be dedicated to the treatment of mental illness in adults and/or children. Services other than those of an inpatient nature are not licensed or regulated by the department and are considered only to the extent that they affect the stated resources for the inpatient components. Residential services -Twenty-four hour services provided and/or contracted by the department or a community center (e.g., structured group residential programs, halfway houses, hospital units providing mental health services, crisis stabilization units, etc.) or a private psychiatric hospital. Rights protection by the head of a department facility or community center to protect and advocate for the rights of persons receiving mental health services. Unusual medications -Medication that has not been approved by the Food and Drug Administration for use in the United States, or medication that is being used to treat conditions for which its use has not been demonstrated through rational scientific theory and evidence in biomedical literature, controlled clinical trials, or expert medical opinion. sec.404.154. Rights of All Persons Receiving Mental Health Services. Persons receiving mental health services from department facilities, community centers, and private psychiatric hospitals have the following rights. (1) The rights, benefits, responsibilities, and privileges guaranteed by the constitution and laws of the United States and the State of Texas unless they have been restricted by specific provisions of law. These rights include, but are not limited to, the right to impartial access to treatment, regardless of race, nationality, religion, sex, ethnicity, sexual orientation, age, or disability; the right to petition for habeas corpus; the right to register and vote at elections; the right to acquire, use, and dispose of property including contractual rights; the right to sue and be sued; all rights relating to the granting, use, and revocation of licenses, permits, privileges, and benefits under law; the right to religious freedom; and rights concerning domestic relations. (2) The right to presumption of mental competency in the absence of a judicial determination to the contrary. There may be limitations to this right found in department rules, including Chapter 404, Subchapter A of this title (relating to Abuse and Neglect of Persons Served by TXMHMR Facilities), Chapter 404, Subchapter B of this title (relating to Client Abuse and Neglect in Community Mental Health and Mental Retardation Centers), and Chapter 404, Subchapter C of this title (relating to Patient Abuse in Private Psychiatric Facilities). Department facilities and community centers should also reference Chapter 405, Subchapter FF of this title (relating to Consent to Treatment with Psychoactive Medication). Any questions regarding applicability of this right or a limitation on it should be referred for appropriate legal advice. (3) The right to a humane treatment environment that ensures protection from harm, provides privacy to as great a degree as possible with regard to personal needs, and promotes respect and dignity for each individual. (4) The right to appropriate treatment in the least restrictive appropriate setting available consistent with the protection of the individual and the protection of the community. (5) The right to be informed of all rules and regulations of the department facility, community center, or private psychiatric hospital relating to expectations of the individual's conduct. Staff must document in the medical record that this information was provided. (6) The right to communication in a language and format understandable to the individual for all services provided. (7) The right to participate actively in the development and periodic review of an individualized treatment plan (extending to a parent or conservator of a minor, and the legal guardian of the person, when applicable); and the right to a timely consideration of any request for the participation of any other person in this process, with the right to be informed of the reasons for any denial of such a request. Staff must document in the medical record that the parent, guardian, conservator, or other person was notified to participate. (8) The right to explanations of the care, procedures, and treatment to be provided; the risks, side effects, and benefits of all medications and treatment procedures to be used, including those that are unusual or experimental; the alternative treatment procedures that are available; and the possible consequences of refusing the treatment or procedure. This right extends to the parent or conservator of a minor, the legal guardian of the person, when applicable, and to any other person authorized by the individual served. (9) The right to refuse particular treatments without prejudice to participation in other programs, or without compromising access to other treatments or services solely because of the refusal. (10) The right to meet with the professional staff members responsible for the individual's care and to be informed of their professional discipline, job title, and responsibilities. In addition, the individual has the right to an explanation of the justification involving any proposed change in the appointment of staff members responsible for the individual's care. (11) The right to request the opinion of a consultant at the individual's own expense and to be granted an in-house review of the individual treatment plan or specific procedure upon reasonable request as provided for in the written procedures of the department facility, community center, or private psychiatric hospital. (12) The right to an explanation of the justification of any transfer of the individual to any program within or outside of the department facility, community center, or private psychiatric hospital. (13) The right to participate actively in the development of a discharge plan addressing aftercare issues which include the individual's mental health, physical health, and social needs. This right extends to a parent or conservator of a minor, or the legal guardian of the person, when applicable. The individual also has the right to a timely consideration of any request for the participation of any other person in this discharge planning, with the right to be informed of the reasons for any denial of such a request. Staff must document in the medical record that the parent, guardian, conservator, or other person was notified to participate. (14) The right to information, upon request, pertaining to the cost of services rendered (itemized when possible), the sources of the program's reimbursement, and any limitations placed upon the duration of services. At department facilities and community centers, no person will be denied services due to an inability to pay for them. (15) The right to be free from unnecessary or excessive medication, which includes the right to give or withhold informed consent to treatment with psychoactive medication, unless the right has been limited by court order or in an emergency. In department facilities and community centers this right may only be limited in accordance with the provisions of Chapter 405, Subchapter FF of this title. (16) The right to give or withhold informed consent to participate in research programs without compromising access to services to which the individual is otherwise entitled. (17) The right to give or withhold informed consent for the use or performance of any of the following (exceptions to this right must be in accordance with applicable laws, standards, or, for department facilities and community centers, department rules, and must be fully explained to the individual and the person authorized to give consent, if applicable): (A) surgical procedures; (B) electroconvulsive therapy; (C) unusual medications; (D) behavior therapy; (D) hazardous assessment procedures; (E) audiovisual equipment; and (F) other procedures for which consent is required by law. (18) The right to withdraw consent at any time in any matter in which the person receiving services has previously granted consent, without limiting or compromising access to services or other treatment(s). (19) The right to be informed of the current and future use and disposition of products of special observation and audiovisual techniques, such as one-way vision mirrors, tape recorders, television, movies, or photographs. (20) The right to confidentiality of records and the right to be informed of the conditions under which information can be disclosed without the individual's consent. At department facilities and community centers, client-identifying information shall be disclosed in accordance with Chapter 403, Subchapter K of this title (relating to Client-Identifying Information). At private psychiatric hospitals, client-identifying information shall be disclosed in accordance with the provisions of the Texas Health and Safety Code, sec.sec.611. 001-611.005 and 42 Code of Federal Regulations, Part 2. (21) The right to have access to information contained in one's own record, including the right to an independent review of any denial of access in accordance with Public Law 99-319 (Protection and Advocacy Act for Mentally Ill Individuals). The right extends to the parent or conservator of a minor (unless the minor has admitted himself/herself for chemical dependency services) and to the legal guardian of a person declared to be legally incompetent. Department facilities and community centers should also reference Chapter 403, Subchapter K of this title regarding this right. (22) The right to be free from mistreatment, abuse, neglect, and exploitation. See Chapter 404, Subchapter A of this title, Chapter 404, Subchapter B of this title, and Chapter 404, Subchapter C of this title. (23) The right to the provision of services in a way that does not discriminate on the basis of race, religion, sex, ethnicity, nationality, age, sexual orientation, or disability. (24) The right to protection of personal property from theft or loss. At department facilities, the head of the facility must institute procedures to protect and adequately secure the personal property of persons served, including clothing. Should theft or loss occur, the head of the facility must ensure prompt initiation of a claim against the state for reimbursement through the department's Office of Legal Services and may also seek reimbursement from other sources. Community centers and private psychiatric hospitals should develop and post procedures regarding protection and security of personal property of persons served. (25) The right not to be secluded or have physical restraint applied to the individual unless it has been prescribed by a physician, except in emergency situations. If physical restraint or seclusion is utilized, the reason for the prescription, the length of time restraint or seclusion has been ordered, and the behaviors necessary for the individual to be removed from restraint or seclusion shall be explained to the individual, and the restraint or seclusion shall be discontinued as soon as possible. Department facilities and community centers should reference Chapter 405, Subchapter F of this title (relating to Restraint and Seclusion in Mental Health Facilities) for more information regarding this right. (26) The right to fair compensation for labor performed for the department facility, community center, or private psychiatric hospital in accordance with the Fair Labor Standards Act. Persons receiving services at department facilities and community centers have the right to be informed of the availability of employment opportunities at the department facility or in the community which may lead to competitive employment, as outlined in the Texas Health and Safety Code, sec.533.008 (the Texas Mental Health and Mental Retardation Act, sec.2.17A). (27) The right to be free from intrusive searches of person or possessions unless justified by clinical necessity, ordered by a physician, and witnessed. Any searches involving removal of any item of clothing shall be witnessed by an individual of the same sex as the person being searched and shall be conducted in a private area. Only physicians will perform body orifice searches. (28) The right to be transported to, from, and between department facilities, community centers, and private psychiatric facilities in a way that protects the dignity and safety of the individual. This includes: (A) the right of females to be transported by a female attendant unless the individual is accompanied by her father, husband, adult brother, or son; and (B) the right of all individuals not to be transported in a marked police or sheriff's car or accompanied by a uniformed officer unless other means are not available. (29) The right to initiate a complaint. At department facilities and community centers, this includes the right to be informed of how to contact the facility or center rights protection officer, the facility or center public responsibility committee, and the Office of Consumer Services and Rights Protection in Central Office (toll free telephone number 1-800-252-8154). At private psychiatric hospitals, this includes the right to be informed of how to contact the Office of Standards and Quality Assurance in Central Office (toll free number 1-800-LET-MHMR). (30) The right of any individual to make a complaint regarding denial of rights without any form of retaliation. (31) The right to have these rights and any additional rights explained aloud in a way the person served can understand within 24 hours of admission to services (refer to sec.404.163 of this title (relating to Communication of Rights to Individuals Receiving Mental Health Services)) and upon request. Persons admitted voluntarily have the right to have these rights and any additional rights explained aloud in a way the person served can understand prior to admission to services and upon request. sec.404.155. Rights of Persons Receiving Residential Mental Health Services. (a) The following rights shall be provided to all persons receiving residential mental health services. (1) The right to communicate with persons outside the department facility, community center, or private psychiatric hospital, including: (A) receiving visitors at reasonable times and places, allowing for as much privacy as possible; (B) making phone calls at reasonable times, allowing for as much privacy as possible; and (C) communicating by uncensored and sealed mail with others, including, but not limited to, legal counsel, the department, the courts, and the attorney general of the state, except in the following situations. (i) When there is reason to suspect that the mail contains items such as illicit drugs or weapons which may present imminent risk of harm to the individual or others, the treating physician may authorize observing the opening of the mail by writing a specific order into the individual's chart explaining the potential harm, the reason for suspicion, and what mail is to be opened. The mail may then be opened by the individual in the presence of two members of the individual's treatment team. After inspecting the mail and removing any items which might present imminent risk of harm to the individual or others, the mail shall be given to the individual; those observing the opening of the mail may not read it. (ii) If the individual is unable to open personal mail because of a physical limitation, a staff member may assist if documentation of the need for assistance is provided in the individual's record and if the individual requests or agrees to such assistance. An order authorizing this assistance must be signed by the treating physician and must be reviewed every seven days, except in the case of an individual with a chronic physical limitation, when the order may remain in effect until there is an improvement in the individual's condition. Other orders may be renewed as long as the condition exists. Any cash or articles received shall be recorded in the individual's record and placed in appropriate safekeeping. Staff members may offer to read mail to individuals unable to read because of illiteracy, blindness, or other reason, but staff members may not read the mail if the individual declines the offer. (iii) Employees may observe the opening of packages received by individuals deemed not capable of protecting personal property. An order authorizing this limitation must be signed by the treating physician and must be reviewed every seven days, except in the case of an individual with a chronic physical limitation, when the order may remain in effect until there is an improvement in the individual's condition. Other orders may be renewed as long as the condition exists. Any cash or articles received shall be recorded in the individual's record and placed in appropriate safekeeping accessible to the individual. (iv) Under no circumstances may mail from the attorney of the person served or from a court be censored (withheld in part or in whole from the person served). (2) The right to have unrestricted visits from attorneys, internal advocates, representatives of Advocacy, Inc. with the consent of the person served, private physicians, or other mental health professionals at reasonable times and places. At department facilities, this right shall also include unrestricted visits from public responsibility committee members at reasonable times and places. There shall be no limitation on communication between an individual and an attorney. (3) The right to be informed in writing and by any other means necessary for communication, at the time of admission to and discharge from inpatient services and upon request, of the existence and purpose of the protection and advocacy system in this state under the federal Protection and Advocacy for Mentally Ill Individuals Act of 1986 (Public Law 99-319). The notice must include the protection and advocacy system's telephone number and address. In Texas, the system is called Advocacy, Inc. (4) The right to keep and use personal possessions. This includes the right to wear one's own clothing and religious or other symbolic items. This right may be limited only if the use of the possession is determined by the treatment team to present imminent risk of harm, to present a security risk, or to prevent the individual from participating in the treatment plan. This includes the right to be free from searches of belongings except those searches based on reasonable belief that failure to search may present imminent risk of harm to the individual or others. A clinical justification must exist and be documented in the individual's record if access to or the use of any personal possession is limited or if a search of the individual's belongings is conducted. (5) The right to wear suitable clothing which is neat, clean, and well fitting. At department facilities and community centers, clothing will be obtained and provided for individuals not having such clothing. (6) The right to have an opportunity for physical exercise and for going outdoors with or without supervision at least daily. A physician's order limiting this right must be reviewed and renewed, if necessary, at intervals no longer than every three days and the findings of the review must be documented in the individual's record. (7) The right to have grounds privileges, with or without supervision, at frequent and regular intervals. (8) The right to religious freedom. No person shall be forced to attend or engage in any religious activity. (9) The right to have opportunities for suitable interactions with individuals of the opposite sex, with or without supervision, as appropriate for the individual. (10) The right to a timely consideration of a request for transfer to another room if another person in the room is unreasonably disturbing the individual, with the right to be informed of any reasons for any denial of such a request. (11) The right to receive appropriate treatment of any physical ailments essential to the treatment of a mental disorder and for a physical disorder arising in the course of an individual's inpatient psychiatric care. The manner in which these physical disorders are treated is the decision of the physician, consistent with good professional judgment. If the physician determines the procedures required for treatment to be elective rather than essential, the individual has the right to consult with a provider outside the facility for treatment at the individual's own expense. (12) The right of each adult individual admitted to an inpatient program to have the department facility, community center, or private psychiatric hospital notify a person chosen by the individual of the admission if the individual grants permission. Documentation of the individual's granting or denial of that permission must be entered into the individual's clinical record. If such notification is refused upon admission, the individual served shall be reinformed of this right as the individual's condition changes. (13) The right of each adult individual admitted to an inpatient program to have the department facility, community center, or private psychiatric hospital notify the individual's family prior to discharge or release if the individual grants permission. Documentation of the individual's granting or denial of that permission must be entered into the individual's clinical record. (14) The right of each adult individual admitted to an inpatient program to have the department facility, community center, or private psychiatric hospital provide information about the right to make health care decisions and execute advance directives as allowed by state law. (b) For persons receiving inpatient services, and unless otherwise noted, these rights may be limited by the treating physician, acting as the agent of the head of the facility, community center, or private psychiatric hospital, when the exercise of the right endangers the physical and/or emotional condition of the individual or other individuals, in which case the reasons for the limitation shall be made a part of the clinical record of the individual and fully explained to the individual. The treating physician may write an order imposing special limitations on the recommendation of the treatment team when the limitations are justified by psychiatric necessity or security. The written order must be reviewed at least every seven days, and if renewed, it must be renewed at least every seven days in writing. The treatment team should consider strategies to help the individual regain or resume the practice of the right. (c) Except for the general rules of the program, there is no provision for limiting these rights for persons voluntarily admitted to a residential program other than an inpatient unit. sec.404.157. Rights of Persons Voluntarily Admitted to Inpatient Services. (a) All persons voluntarily admitted to inpatient services for treatment of mental illness or chemical dependency or the person who requested admission on the individual's behalf have the right to request discharge. Any such person expressing a request for release shall be given an explanation of the process for requesting release and afforded the opportunity to request release in writing. When a written request for release is signed or presented to any direct care staff of the department facility, community center, or private psychiatric hospital, it should be witnessed and dated and timed. Oral statements of the desire to be discharged shall be treated as written requests for release and shall be reduced to writing by staff. Without regard to whether the individual agrees to sign paperwork requesting discharge from services, the request will be documented and processed by staff. The refusal or inability of the individual to sign the request for discharge will be documented on the unsigned written request. All written or prepared requests for discharge will be timed, dated, and signed by two staff, who shall provide information to the individual that pursuant to law, during the ensuing period of up to 24 hours, the individual will be observed and evaluated to determine the clinical appropriateness of seeking an involuntary commitment to services. The form and format for requesting release and the information to be provided may be prescribed by the department. (b) All persons voluntarily admitted to inpatient services for treatment of mental illness or chemical dependency have the right to be examined in person by a physician and assessed for discharge readiness within 24 hours of the filing of a request for release, with results of the assessment and recommendation resulting documented in the medical record and disclosed to the individual. All such persons have the right not to be detained unless: (1) the person who filed the request for release files a written withdrawal of the request or asks a staff member to withdraw the request (the staff member must put the request in writing); (2) the person served, in the physician's clinical judgment, meets the criteria for involuntary commitment outlined in the Texas Health and Safety Code, sec.573.022, and an application for court-ordered mental health services, chemical-dependency services, or emergency detention will be filed within 96 hours of the filing of the request for release and the individual is detained under the provisions of the relevant statute; or (3) the person receiving inpatient treatment for chemical dependency is a minor admitted with the consent of the parent, guardian, or conservator, and the individual who gave that consent objects in writing to the release of the minor after consultation with personnel of the department facility, community center, or private psychiatric hospital. (c) Each of these persons has the right not to have an application for court- ordered mental health or chemical dependency services filed while a voluntary patient unless, in the opinion of the head of the department facility, community center, or private psychiatric hospital, the voluntary patient meets the criteria for court-ordered services as outlined in the Texas Health and Safety Code, sec.573.022 and either: (1) is absent without authorization; or (2) refuses or is unable to consent to appropriate and necessary psychiatric or chemical dependency treatment. (d) Prior to voluntary admission to inpatient services, an individual has the right to have all rights explained in a way the individual can understand. sec.404.158. Rights of Persons Apprehended for Emergency Detention for Inpatient Mental Health Services (Other Than for Chemical Dependency). The rights of each person apprehended for emergency detention for inpatient mental health services at a department facility, community center, or private psychiatric hospital are granted under the relevant sections of the Texas Mental Health Code (Texas Civil Statutes, Article 5547-1 et seq). (1) Each person apprehended or detained, but not yet admitted, has the following rights. (A) The right to be advised of the location of detention, the reasons for detention, and that detention could result in a longer period of involuntary commitment. (B) The right to contact an attorney of the person's own choosing with opportunities to contact that attorney. (C) The right to be transferred back to the location of apprehension, or other suitable place, if not admitted for emergency detention, unless the person is arrested or objects to the return. (D) The right to be released if the head of the department facility, community center, or private psychiatric hospital determines that any one of the criteria for emergency detention no longer applies. (E) The right to be informed that anything the person says to the personnel of the department facility, community center, or private psychiatric hospital may be used in the proceeding for further detention. (F) The right to a preliminary examination by a physician conducted immediately upon arrival at the department facility, community center, or private psychiatric hospital following apprehension to determine whether the person meets the criteria for admission for emergency detention. (2) If the person is accepted for treatment on an emergency detention, the personnel of the department facility, community center, or private psychiatric hospital shall immediately advise the person of the following rights. (A) The right not to be detained for more than 24 hours after the hour of initial detention unless an order for further detention is obtained, except that if the 24-hour period ends on a Saturday or Sunday or a legal holiday or before 4 p.m. on the first business day succeeding the Saturday, Sunday, or legal holiday, the period of detention shall end no later than 4 p.m. of the first succeeding business day. (B) The right to be released if the head of the department facility, community center, or private psychiatric hospital determines that any one of the criteria for emergency detention, as outlined in the Texas Health and Safety Code, sec.573.022, no longer applies. (C) The right to be returned to the location of apprehension, place of residence, or other suitable place if released from emergency detention, unless the person is arrested or objects to the return. (D) The right to be informed that if a petition for court-ordered treatment is filed, the person is entitled to a judicial probable cause hearing no later than the 72nd hour after the hour of which detention begins under an order of protective custody. (E) The right to have an attorney appointed if the person does not have an attorney when application for court-ordered services is filed. (F) The right to communicate with the attorney at any reasonable time and to have assistance in contacting the attorney. (G) The right to present evidence and to cross-examine witnesses who testify on behalf of the petitioner at a hearing. sec.404.159. Rights of Persons Apprehended for Emergency Detention for Inpatient Chemical Dependency Services. The rights of each person apprehended for emergency detention for inpatient chemical dependency services at a department facility, community center, or private psychiatric hospital are granted under the relevant sections of the Texas Alcohol and Drug Abuse Services Act (Texas Civil Statutes, Article 5561c-2). (1) Each person apprehended or detained, but not yet admitted, for emergency detention has the following rights. (A) The right to be advised of the location of detention, the reasons for detention, and that detention could result in a longer period of involuntary commitment. (B) The right to contact an attorney of the person's own choosing with opportunities to contact that attorney. (C) The right to be transported back to the location of apprehension, or other suitable place, if not admitted for emergency detention, unless the person is arrested or objects to the return. (D) The right to be released if the head of the department facility, community center, or private psychiatric hospital determines that any one of the criteria for emergency detention, as outlined in the Texas Health and Safety Code, sec.573.022, no longer applies. (E) The right to be informed that anything the person says to the personnel of the department facility, community center, or private psychiatric hospital may be used in proceedings for further detention. (F) The right to have a preliminary examination by a physician conducted immediately upon arrival at the department facility, community center, or private psychiatric hospital following apprehension to determine whether the person meets the criteria for admission for emergency detention. (2) If a person is accepted for treatment on an emergency detention, the personnel of the department facility, community center, or private psychiatric hospital shall immediately advise the person of the following rights. (A) The right not to be detained for more than 24 hours after the hour of initial detention unless an order for further detention is obtained, except that if the 24-hour period ends on a Saturday or a Sunday or legal holiday or before 4 p.m. on the first business day succeeding the Saturday, Sunday, or legal holiday, the period of detention shall end no later than 4 p.m. of the first succeeding business day. (B) The right to be released if the head of the department facility, community center, or private psychiatric hospital determines that the criteria for emergency detention, as outlined in the Texas Health and Safety Code, sec.573. 022, no longer applies. (C) The right to be transferred back to the location of apprehension, or other suitable place, if released from emergency detention, unless the person is arrested or objects to the return. (D) The right to be informed that no later than the 24th hour after the hour of initial detention, the head of the department facility, community center, or private psychiatric hospital may file a petition for court-ordered treatment. (E) The right to be informed that if a petition for court-ordered treatment is filed, the person is entitled to a judicial probable cause hearing no later than the 72nd hour after the hour on which detention begins under an order of protective custody to determine whether the person should remain detained in the department facility, community center, or private psychiatric hospital. (F) The right to have an attorney appointed if the person does not have an attorney, when application for court-ordered services is filed. (G) The right to communicate with the attorney at any reasonable time and to have assistance in contacting the attorney. (H) The right to be informed that anything the person says to the personnel of the department facility, community center, or private psychiatric hospital may be used in making a determination relating to detention, may result in the filing of a petition for court-ordered treatment, and may be used at a court hearing. (I) The right to present evidence and to cross-examine witnesses who testify on behalf of the petitioner at a hearing. (J) The right to refuse medication unless there is an imminent likelihood of serious physical injury to the person or others if the medication is refused. (K) The right to be informed that beginning on the 24th hour before a hearing for court-ordered treatment, the person may refuse to take medication unless the medication is necessary to save the person's life. (L) The right to request that a hearing be held in the county of which the person is a resident, if within the state. sec.404.160. Rights Handbooks for Persons Receiving Mental Health Services at Department Facilities, Community Centers, and Private Psychiatric Hospitals Operated by Community Centers. (a) The department will publish a rights handbook which will contain interpretations written in simple and non-technical language of the various rights afforded individuals receiving mental health services, an explanation of the circumstances under which those rights may be limited, and an explanation of the appeals process. This handbook will be revised by the Office of Consumer Services and Rights Protection as necessary. (b) Only the handbook published by the department will be distributed to individuals admitted to department facilities, their community programs, and private psychiatric hospitals operated by community centers. Community centers may distribute the handbook published by the department or may choose to publish their own version. Handbooks published by community centers must contain all rights outlined in the handbook published by the department and must be approved by the Office of Consumer Services and Rights Protection prior to their distribution. (c) Each handbook distributed must include the toll free number of the Office of Consumer Services and Rights Protection in Central Office 1 (800) 252-8154, the toll free number of Advocacy, Inc. 1 (800) 223-4206, the name, telephone number, and mailing address of the rights protection officer, and the mailing address of the public responsibility committee for the facility or community center which distributes it. (d) Immediately upon admission into services, each individual and the parent or conservator of a minor and the legal guardian of the person, when applicable, must be given the appropriate rights handbook. All handbooks must be printed in English and Spanish, and must be made available in any other language used by a significant percentage of the service area's population. Copies of the rights handbook must be displayed prominently at all times in all areas frequented by persons receiving services (e.g., dayrooms, recreational rooms, waiting rooms, lobby areas). A sufficient number of copies will be kept on hand in each of these areas in order that a copy may be made readily available to anyone requesting one. The head of each department facility and community center shall appoint an individual responsible for ensuring that these requirements are met. (e) Nothing in this section shall preclude the distribution of additional brochures prepared by advocacy organizations. sec.404.161. Patient's Bill of Rights for Individuals Receiving Mental Health Services at Private Psychiatric Hospitals Not Operated by a Community Center. (a) The department will publish a Patient's Bill of Rights, which is herein adopted by reference as Exhibit A of this subchapter, with copies available from the Texas Department of Mental Health and Mental Retardation, P.O. Box 12668, Austin, Texas 78711-2668, which will contain interpretations written in simple and non-technical language of the various rights afforded individuals receiving mental health services at private psychiatric hospitals, an explanation of the circumstances under which those rights may be limited, and organizations individuals may contact in the event of rights violations. The Patient's Bill of Rights will be revised as necessary. (b) Only the Patient's Bill of Rights published by the department will be distributed to individuals admitted to private psychiatric hospitals which are not operated by community centers. At private psychiatric hospitals operated by community centers, individuals admitted for services will receive the rights handbook as outlined in sec.404.160 of this title (relating to Rights Handbooks for Persons Receiving Mental Health Services at Department Facilities, Community Centers, and Private Psychiatric Hospitals operated by Community Centers). (c) The Patient's Bill of Rights must be printed in English and Spanish, and must be made available in other languages of primary use by individuals admitted to each private psychiatric hospital. (d) Immediately upon admission into services, each individual must be given the Patient's Bill of Rights. A copy must also be given to the individual's parent or conservator of a minor and the legal guardian of the person, when applicable, and to any other person requested by the individual. (e) Copies of the Patient's Bill of Rights must be displayed prominently at all times in all areas frequented by persons receiving services (e.g., dayrooms, recreational rooms, waiting rooms, lobby areas). A sufficient number of copies will be kept on hand in each of these areas in order that a copy may be made readily available to anyone requesting one. (f) Nothing in this section shall preclude the distribution of additional brochures prepared by advocacy organizations. sec.404.162. Communication of Rights to Individuals Receiving Mental Health Services. (a) In addition to receiving a rights handbook, each newly admitted individual, the parent or conservator of a minor, and the guardian of the person, shall be informed orally of all rights in his or her primary language using plain and simple terms within 24 hours of admission into services. Persons admitted for voluntary services shall be given this information prior to admission to services. The notification will also include an explanation of the circumstances under which those rights may be limited, and an explanation of how a complaint may be filed. This notification also must occur at least annually and upon any changes to this information. The method used to communicate the information should be designed for effective communication, tailored to meet each person's ability to comprehend, and responsive to any visual or hearing impairment. (b) Oral communication of rights shall be documented on a form bearing the date and signatures of the individual and/or the parent, conservator, or guardian, and the staff member who explained the rights. The form should be filed in the individual's chart. Private psychiatric hospitals should use the form provided on the Patient's Bill of Rights. Department facilities and community centers should use the Receipt of Information Record (MHRS 9-1 form). (c) When the individual receiving services is unable or unwilling to sign the document which confirms that rights have been orally communicated, a brief explanation of the reason should be entered onto that document along with the signatures of the person who explained the rights and a third-party witness. (d) If the individual does not appear to understand the rights explanation, staff will attempt to provide another explanation periodically until understanding is reached or until discharge. The necessity for repeating the rights communication process will be documented, signed, and dated by staff. sec.404.163. Rights Protection Officer at Department Facilities and Community Centers. (a) The head of each department facility and each community center shall appoint a rights protection officer for the facility or center. (b) The name, telephone number, and mailing address of the rights protection officer must be prominently posted in every program or residential area frequented by service recipients, including community outreach or contract programs. Individuals desiring to contact the rights protection officer must be allowed access to facility or center telephones to do so. (c) Duties required of the rights protection officer are specified at the discretion of the head of the facility or center, but must include the following: (1) receiving complaints of violations of rights, allegations of inadequate provision of services, and requests for advocacy from service recipients, their families, their friends, service providers, other facility or center personnel, other agencies, the general public, and the Office of Consumer Services and Rights Protection; (2) thoroughly investigating each such complaint received; (3) representing the expressed desires of the individuals served and advocating for the resolution of their grievances; (4) reporting the results of investigations and advocacy to service recipients and the complainants, consistent with the protection of the service recipients' right to have any identifying information remain confidential; (5) ensuring that the rights of individuals receiving services have been thoroughly explained to facility and center personnel through periodic training. The rights protection officer may provide the training directly or by consulting with facility or center training personnel; and (6) reviewing all policies, procedures, behavior therapy programs, and rules which affect the rights of persons receiving services. sec.404.165. References. Reference is made to the following Texas laws, federal laws, departmental rules, and other standards: (1) Texas Department of Mental Health and Mental Retardation (Texas Health and Safety Code, Chapters 531-535); (2) Texas Mental Health Code (Texas Health and Safety Code, sec.sec.572.003, 573.022, 573.025, 576.001-576.024, 611.002); (3) Treatment of Chemically Dependent Persons (Texas Health and Safety Code, Chapters 461 and 462); (4) 42 Code of Federal Regulations, Part 2; (5) Public Law 99-319, The Protection and Advocacy Act for Mentally Ill Individuals (42 United States Code, sec. sec.10802, et seq); (6) Chapter 403, Subchapter K of this title (relating to Client-Identifying Information); (7) Chapter 404, Subchapter A of this title (relating to Abuse and Neglect of Persons Served by TXMHMR Facilities); (8) Chapter 404, Subchapter B of this title (relating to Client Abuse and Neglect in Community Mental Health and Mental Retardation Centers); (9) Chapter 404, Subchapter C of this title (relating to Patient Abuse in Private Psychiatric Hospitals); (10) Chapter 405, Subchapter F of this title (relating to Restraint and Seclusion in TDMHMR Facilities); (11) Chapter 405, Subchapter FF of this title (relating to Consent to Treatment With Psychoactive Medication); (12) Fair Labor Standards Act; (13) Joint Commission on the Accreditation of Healthcare Organizations, Consolidated Standards Manual (1991); (14) Joint Commission on the Accreditation of Healthcare Organizations, Accreditation Manual for Hospitals (1991); (15) TDMHMR Mental Health Community Services Standards (1991), Chapter 3; and (16) RAJ v. Jones settlement agreement. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 30, 1992. TRD-9204353 Anne K. Utley Chairman Texas Board of Mental Health and Mental Retardation Effective date: April 20, 1992 Proposal publication date: February 11, 1992 For further information, please call: (512) 465-4670 Chapter 405. Client (Patient) Care Subchapter L. Client Rights-Mental Health Services 25 TAC sec.sec.405.281-405.291 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts the repeal of sec.sec.405.281-405.291, concerning client rights-mental health services, without changes to the proposed text as published in the October 25, 1991, issue of the Texas Register (16 TexReg 6032). The repeals are adopted contemporaneously with the adoption of the sections which replace them with new sec.sec.404.151-404.166, also in this issue of the Texas Register. The purpose of the repeals is to allow the adoption of a new subchapter that updates the rights of persons receiving mental health services and extends those rights to persons receiving services at private psychiatric hospitals in Texas. To the extent possible, the same standard of care and methods for protecting patients rights are established for all Texans receiving mental health services, without regard to location of service, i.e., whether receiving services at state hospitals or private psychiatric hospitals. No comments were received regarding adoption of the repeals. The repeals are adopted under Texas Civil Statutes, Article 5547-202, sec.211, which provide the Texas Board of Mental Health and Mental Retardation with rulemaking powers. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 30, 1992. TRD-9204354 Anne K. Utley Chairman Texas Board of Mental Health and Mental Retardation Effective date: April 20, 1992 Proposal publication date: October 25, 1991 For further information, please call: (512) 465-4670 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part I. General Land Office Chapter 17. Hearing Procedures for Administrative Penalties and Removal of Unauthorized or Dangerous Structures on State Land 31 TAC sec.sec.17.1-17.50 The General Land Office adopts new sec.sec.17.1-17.50, concerning hearing procedures for administrative penalties and removal of unauthorized or dangerous structures on state land. Sections 17.2, 17.7, 17.8, 17.9, and 17.20 are adopted with changes to the proposed text as published in the October 1, 1991, issue of the Texas Register (16 TexReg 5368). Sections 17.1, 17.3-17.6, 17.10-17. 19, and 17.21-17.50 are adopted without changes and will not be republished. Section 17.2 was changed to clarify the definitions listed and to add definitions that were necessary for interpretation of the rules. Section 17.7 was changed to clarify the role of the commissioner and the deputy commissioners in the notice and hearing process required by the Texas Natural Resources Code, sec.51.3021. Section 17.7 was also changed to include the penalty provision provided in the Texas Natural Resources Code, sec.51.302(b), and to clarify the type of instruments required by the Code for structures on state land. Section 17.8 and sec.17.9 were changed to more accurately describe the contents of the violation notice under sec.17.7 of this title (relating to Initiation of General Land Office Action) and to maintain consistency with the Texas Natural Resources Code, sec.51.3021(e). Section 17.20 was changed by replacing the word commissioner, which was used incorrectly, with the word hearing examiner. The new sections will bring the agency into compliance with the Act of June 11, 1991, House Bill 478, Chapter 465, 72nd Legislature, (codified at Texas Natural Resource Code, sec.51.302 and sec.51.3021), relating to the removal of certain unauthorized or imminently dangerous structures from state land. The new sections provide procedures for applicants to appeal administrative penalties and the proposed removal of unauthorized facilities or structures on state land pursuant to amended sec.51.302 and new sec.51.3021 of the Texas Natural Resources relating to the assessment of administrative penalties and the removal of certain unauthorized or imminently dangerous structures from state land. No comments were received regarding adoption of the new sections. The new sections are adopted under House Bill 478, Chapter 465, 72nd Legislature, (codified at Texas Natural Resource Code, sec.51.302 and sec.51.3021), which authorizes the commissioner to promulgate rules necessary and convenient to the administration of hearings under House Bill 478. sec.17.2. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Agency-The General Land Office of the State of Texas. Chief clerk-The chief clerk of the General Land Office. Commissioner-The commissioner of the General Land Office. Deputy commissioner -The deputy commissioner of the Asset Management Division or Resource Management Division, as applicable, of the General Land Office. Interested party -Person having a vested property interest in an unauthorized structure or facility. Lienholder-Person having a security interest in an unauthorized structure or facility and whose interest is recorded in the county in which the property is located. Owner or operator -Any person owning, operating, constructing, possessing, or exercising control over an unauthorized structure or facility. Permanent or permanently-Left in place for 21 days or longer. Persons-Any individual, partnership, corporation, association, governmental subdivision, or public or private organization of any character. Petitioner-In a contested case, the person or persons filing a statement of grounds contesting an agency action or assessment. Proceeding-Any hearing, investigation, injury, or other fact-finding or decision-making procedure, including the denial of relief or the dismissal of a complaint. State land-Any land set apart to the permanent school fund under the constitution and laws of this state. Structure or facility-Includes, without limitation, any structure, work, or improvement constructed on or affixed to or worked on state land, including fixed or floating piers, wharves, docks, ramps, weirs, jetties, groins, backwaters, bulkheads, artificial reefs or islands, permanent booms or mooring structures, retaining walls, levies, pilings, permanently moored vessels, cabins, houses, shelters, power transmission lines, pipelines, equipment for production, storage or treatment of oil, gas, or other minerals, roads, fences, or posts. A work or improvement includes, without limitation, any dredging or disposal of dredged material, excavation, filling, land canals, channels, or propwashing. Unauthorized structure or facility-Any structure or facility on state land not authorized by a proper easement, lease, permit or other instrument from the state as required by Chapter 33 or 51 of the Texas Natural Resources Code. Uncontested proceeding or case-Any proceeding other than a contested case. sec.17.7. Initiation of General Land Office Action. (a) The commissioner may recover a penalty of not less than $50 or more than $1,000, for each day that a person constructs, owns, operates, possesses or exercises control over an unauthorized structure or facility on state land. (b) The commissioner may remove and dispose of a facility or structure on state land if the commissioner finds the facility or structure to be: (1) not authorized by a proper easement, lease, permit or other instrument from the state required by Chapter 33 or 51 of the Texas Natural Resource Code; or (2) an imminent and unreasonable threat to public health, safety, or welfare. (c) An owner or operator of an abandoned facility or structure includes, for purposes of this chapter, the person who last owned, possessed, constructed, operated, or exercised control over the facility or structure. (d) Before the commissioner imposes a penalty and/or removes a structure under the Texas Natural Resources Code, sec.51.302 and sec.51.3021, the deputy commissioner shall give written notice to the owner or operator of the structure or facility and any lienholders stating: (1) the specific facility or structure that is not authorized by a proper easement, lease, permit, or other instrument from the state required by the Texas Natural Resource Code or that threatens public health, safety, or welfare; (2) the nature of the threat, if alleged, to public health, safety, or welfare; (3) that the owner or operator of the facility or structure shall remove the facility or structure: (A) not later than the 3Oth day after the date on which the notice is served, if the facility or structure is on state land and not authorized by a proper lease, easement, permit or other instrument required by the Texas Natural Resource Code; or (B) within a reasonable time specified by the deputy commissioner if the facility or structure is an imminent and unreasonable threat to public health, safety, or welfare; (4) the penalty owed to the state for the unauthorized use of state property under the Code, sec.51.302(b) if any; (5) that failure to remove the facility or structure may result in further liability for a penalty under the Code, sec.51. 302(b) in an amount specified, removal by the commissioner, and liability for the costs of removal, or both; and (6) that the owner or operator, lienholder, or interested party of the facility or structure may submit, not later than the 3Oth day after the date on which the notice is served, written request for a hearing. (e) The notice required by subsection (d) of this section must be given: (1) to the owner or operator: (A) by service in person or by registered or certified mail, return receipt requested; or (B) if personal service cannot be obtained or the address of the owner or operator responsible is unknown, by posting a copy of the notice on the facility or structure and by publishing notice in a newspaper with general circulation in the county in which the facility or structure is located two times within 10 consecutive days; (2) to the lienholders by registered or certified mail, return receipt requested. sec.17.8. Request for Hearing. (a) An owner or operator, lienholder, or interested party who disagrees with the findings or requirements of the notice or any penalty, and who wishes to request a hearing for reconsideration or redetermination by the agency of the findings, requirements, or penalty, shall file with the agency a request for hearing and a statement of grounds as described in sec.17.3 of this title (relating to filing of documents) and sec.17.9 of this title (relating to statement of grounds). (b) If the owner or operator charged consents to the deputy commissioner's recommendation, or if the owner or operator, lienholder, or interested party fails to request a hearing within 30 days after receipt of notice of the findings, requirements, and/or penalty, the commissioner shall issue an order consistent with the provisions in the notice required by sec.17.7 of this title (relating to initiation of General Land Office action). The commissioner shall serve written notice of the final order to the owner or operator and lienholders. The owner or operator charged must comply with the order and pay any penalty assessed. (c) A request for hearing must be filed in a timely manner regardless of any extension of time granted for the filing of a statement of grounds. sec.17.9. Statement of Grounds. (a) A statement of grounds must set out in detail the reasons for disagreement with the findings or requirements of the notice and/or penalty assessed and shall include the factual and legal basis for the dispute. (b) To the extent practicable, a statement of grounds shall be accompanied by the following documents: (1) documentary evidence, if any, in support of petitioner's claim; (2) a list of all other parties whom petitioner claims are liable under the charges of the notice as described by sec.17.7 of this title (relating to Initiation of General Land Office Action). (c) A statement of grounds or a letter requesting an extension of time to file a statement of grounds must be filed within 20 days after receipt of the notice of the findings, requirements, and/or penalty. (d) Upon a showing of good cause by petitioner, the hearing examiner may extend the time for submission of a statement of grounds. (e) The time for submission of a statement of grounds will be automatically extended 15 days if the petitioner, having requested a hearing, requests an informal conference with the hearing examiner prior to the original date set for submission of the statement of grounds. In order to receive the automatic 15-day extension, the petitioner must file a letter with the administrative hearing clerk before the original date the statement of grounds is due which sets out the date and place of the informal conference, as agreed upon by the petitioner and the hearing examiner. sec.17.20. Time and Place of Hearings. (a) A hearing shall be held, unless otherwise provided by the hearing examiner, within 30 days of receipt of the request for hearing. (b) All administrative proceedings shall be conducted in Austin. unless for good cause the examiner designates another place for the hearing. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 1, 1992. TRD-9204488 Garry Mauro Chairman General Land Office Effective date: April 22, 1992 Proposal publication date: October 1, 1991 For further information, please call: (512) 463-5394 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part VI. Texas Department of Criminal Justice Chapter 165. State Aid Distribution and Monitoring Subchapter E. Performance Reward Program 37 TAC sec.sec.165.60-165.68 The Texas Board of Criminal Justice (TBCJ) of the Texas Department of Criminal Justice (TDCJ) adopts new sec.sec.165.60-165.68. Sections 165.60-165.64 are adopted with changes to the proposed text as published in the December 17, 1991, issue of the Texas Register (16 TexReg 7324). Sections 165.65-165.68 are adopted without changes and will not be republished. The TBCJ adopts the new sections for the purpose of establishing rules and eligibility criteria for performance rewards funding for counties which successfully divert offenders from confinement. Proposed sec.165.60, as published in the December 17, 1991, issue of the Texas Register, was amended to include all reporting requirements of all divisions of the Texas Department of Criminal Justice (TDCJ). Proposed sec.165.61 was amended to better define the admissions per index crimes rate and reflect available source data. Proposed sec.165.62 was amended to clarify and refine the formula for calculating eligibility as well as the formula for determining levels of performance rewards funding made available to eligible counties. Repetitious references were also deleted. Proposed sec.165.63 was amended to delete all references to actual dates. Proposed sec.165.64 was amended to delete all references to actual dates. The program rules adopted by the TBCJ allows for the implementation of the Texas Code of Criminal Procedure, Article 42.13, new sec.13, as promulgated at Chapter 10, sec.11.06, pages 197-198, Sessions Laws, 72nd Legislative Session, Second Called Session. The following represents a summation of the comments submitted on the proposed rules for the Performance Rewards Program as published in the December 17, 1991, issue of the Texas Register: Various definitions of the mandatory performance rewards factors need to be redefined or clarified. Additional factors should be included in the performance ranking process designed to measure the probable long-term effectiveness of a county's criminal justice program in diverting offenders away from confinement. Statewide mean scores for each factor should be used as opposed to median scores. Index crimes data should not be used for any statistical calculations regarding the formula for computing performance reward rankings. There should not be a maximum amount of funding based upon a county's population. Repetitious references should be deleted. Numbers used for statistics should be consistent for all calculations. Program evaluation standards and eligibility monitoring should be linked only to the requirements indicated in the law. Performance rewards funds should be able to be used to divert at-risk youth and juvenile offenders away from criminal activity. All counties should be awarded at least a minimum grant. Regulations should not encourage bond programs or hybrid pre-trial diversion programs to replace the surety programs already in place. Several editing changes were also suggested. The previously summarized comments against different proposed sections were submitted by the following: Community Supervision and Corrections Department serving Potter, Randall, & Armstrong Counties; County Judges and Commissioners Association of Texas; Harris County Community Justice Council; Professional Bailbondsmen of Texas and Five individuals. Comments submitted on the proposed rules and the agency's comments in response, as submitted to the TBCJ, are as follows. "Change definitions for the factors." The Texas Code of Criminal Procedure, Article 42.13, sec.13, includes a statutory list of all of the factors adopted by the TBCJ, but the determination as to what data should be used to compute those factors was made by staff. After reviewing the data returned by the counties in response to TDCJ's requests for information, staff have determined that some of the data elements requested are difficult to quantify and believe that the definitions used for this round of funding may need to be changed in the future. Staff, who are now preparing for next year's funding cycle, will work with the counties to further improve the factor definitions and more accurately identify data that will assist in the review of the program. TDCJ did not have the turn-around time to change definitions for this year's funding because it would have delayed the funding cycle for a substantial period of time if additional data gathering and submissions were required from every county. Therefore, these comments were not adopted as part of this year's regulations. "Performance evaluation standards exceed the statutory requirements." the Texas Code of Criminal Procedure, Article 42.13, sec.13(b) gives the TDCJ the discretion to require from participating counties enough information to permit the TDCJ to evaluate the success of the various programs being funded. The TDCJ has a duty to perform this evaluation under the Texas Code of Criminal Procedure, Article 42.13, sec.13(e). Therefore, these comments were rejected by staff. "The list of performance evaluation factors should be expanded to include other factors that were not expressly mandated by the legislature." Some of the suggested additional factors may indeed have merit, but it was not possible to gather additional data concerning the suggested changes and still get this year's money out expeditiously. As TDCJ begins the data gathering process for next year's funding, staff will further review the suggested options for consideration in next year's "Surety bond programs should not be included in the factors used to determine funding levels." The county data used for computation of awards was based on the information submitted on the data collection forms distributed by TDCJ. Staff recommended that we use available data as supplied by the counties for this funding cycle. "The methods of calculating rates and the funding formula should be changed." The funding formula as proposed and adopted is based on data elements that staff believed could be quickly assembled. TDCJ staff recognize that the rates could be calculated many different ways and will be open to consideration of changes in next year's formula. Staff recommended against changing the method of calculating this year's rates to avoid the delay in funding that would occur if new data had to be gathered and rates recalculated. "All counties that submit resolutions should be given the minimum $50,000 funding." TDCJ rejected this comment because staff believed it was the intent of the Legislature that funding under the program was intended to reward successful diversion, as measured by performance. Mere submission of a resolution is not the level of "performance" required to receive the "reward" under the program. "The program should be amended to permit funding of juvenile services." No amendment of the program is required; juvenile services may be funded under the program as it is structured, without amendments. The new sections are adopted under the authority of the Texas Code Criminal Procedure, Article 42.13, sec.13(a), which requires the TBCJ to develop and implement a performance reward program to reward each county which successfully diverts offenders from confinement. sec.165.60. Performance Reward Program-General. Pursuant to the Texas Code of Criminal Procedure, Article 42.13, sec.13, the Community Justice Assistance Division (CJAD) of the Texas Department of Criminal Justice (TDCJ) establishes a performance reward program for counties which successfully divert offenders from confinement. As is set forward in detail following, to be eligible for participation, a county must conform to all of the following requirements: (1) achieve the state-wide performance ranking score required by the Texas Board of Criminal Justice (board) on the legislatively mandated performance reward factors described in sec.165.61 of this title (relating to Performance Ranking Process); and (2) submit a Performance Reward Program Plan and Budget Schedule which conforms to statutory and departmental standards, as set forward in sec.sec.165.63-165.66 of this title (relating to Data Collection; County Plan Submission Requirements; Rules Governing Program Accountability and Audits; and Program Evaluation Standards); and (3) cooperate fully with the Institutional Division (ID) employees who are evaluating inmates for release on parole from county jails, as set forward in sec.165.67 of this title (relating to Required Cooperation With Institutional Division Employees); and (4) comply with the audit, program, and fiscal reporting requirements of the TDCJ Divisions responsible for administering the program, as set forward following; and (5) provide a resolution formally adopted by the county commissioner's court which authorizes the county to participate in the Performance Reward Program, subject to rules promulgated by the board. sec.165.61. Performance Ranking Process. In conformity with the mandate of the Texas Code of Criminal Procedure, Article 42.13, sec.13(a), the board adopts the following mandatory performance reward factors, which are to be computed as indicated following: (1) the personal bond utilization rate in the county, which shall be computed by dividing the total number of bonds (including both personal recognizance bonds and other bonds) issued in the county by the total number of persons arrested during the most recently completed state fiscal year; (2) the pretrial diversion rate in the county, which shall be computed by dividing the total number of persons accused of either a felony or a misdemeanor who were placed under some form of pretrial supervision (including programmatic placements) by the total number of persons arrested for a misdemeanor or felony in the county during the most recently completed state fiscal year; (3) the deferred adjudication rate in the county, which shall be computed by dividing the total number of persons charged with either a felony or a misdemeanor who were placed on deferred adjudication status in the county, divided by the sum of the total number of persons convicted in the county plus the total number of deferred adjudications in the county during the most recently completed state fiscal year; (4) the probation rate in the county, which shall be computed by dividing the total number of persons placed on felony and misdemeanor probation in the county by the total number of felony and misdemeanor convictions in the county during the most recently completed state fiscal year; (5) the probation revocation rates. (A) The technical probation revocation rate shall be determined by dividing the total number of felony and misdemeanor probationers whose probation was revoked for any reason other than conviction of a subsequent offense during the prior state fiscal year by the average probation population for the county. The average probation population for the county shall be determined by dividing the total number of persons on felony and misdemeanor probation for the prior state fiscal year by 12. (B) The non-technical probation revocation rate for the county shall be determined by dividing the total number of felony and misdemeanor probationers whose probation was revoked for the conviction of a subsequent offense during the prior state fiscal year by the average probation population for the county. The average probation population shall be determined as set forth under subparagraph (A) of this paragraph. (C) The total probation revocation rate for the county shall be determined by dividing the total number of technical and non-technical probation revocations in the county by the average probation population, which shall be determined as set forth under subparagraph (A) of this paragraph. (6) the utilization rate of residential and nonresidential diversion programs in the county which shall be computed by dividing the total number of county felony or misdemeanor probationers who were placed in either a residential or nonresidential diversion program (i.e., an intensive supervision probation program, a specialized caseloads program, a surveillance program, an electronic monitoring program, or a restitution center program) by the county's average probation population during the prior state fiscal year. Average probation population shall be defined as set forward under paragraph (5)(A) of this section; (7) the ID commitment rate for the county which shall be computed by dividing the total number of felons sentenced directly to the ID from the county by the total number of felons convicted in the county; (8) the admissions per index crimes rate which shall be computed by dividing the total number of admissions into the ID during the last state fiscal year by the total number of index crimes reported in the county during the last calendar year for which data is available, as reflected on the uniform index crime reports; (9) use of ID admissions. (A) The frequency with which admissions are not used shall be measured by the number of occasions on which a county did not use its weekly admissions divided by 52, or by dividing the number of occasions on which a county did not use its cyclical admissions by 13. The relevant computation shall be made using data from the most recently completed state fiscal year. (B) The extent to which a county did not use its allocated admissions shall be measured by dividing its total number of allocated annual admissions by the total number of its actual admissions during the most recently completed state fiscal year. sec.165.62. Formula For Computation of Performance Reward Rankings. (a) It was the intent of the legislature in establishing the performance reward program to provide financial incentives to those counties with programs for diverting offenders from the Institutional Division of the Texas Department of Criminal Justice. In conformity with that intent, the board hereby adopts the following formula for computation of performance reward rankings. (1) State-wide median scores will be ascertained for each factor. (2) The rate distribution for each factor will be divided into deciles with five equal groups above the median and five equal groups below the median except where counties with equal rates for a factor prevent the division of the counties into 10 equal groups. Counties with equal rates for a given factor will all be assigned to the highest group in which the tied rates are encountered. (3) Decile groupings and performance award points for the probation revocation rates, the ID commitment rate, and the admissions per index crimes factors. Counties with rates below the statewide median for probation revocation rates, the ID commitment rate, and the admissions per index crimes factor will receive positive scores, and counties with rates above the statewide median for those factors will receive negative scores. The first group below the median will receive one positive point, the next group will receive two positive points, and so forth, with the counties in the lowest group receiving plus five points. Negative points will be assigned in a similar fashion to counties ranking above the median on these factors. (4) Decile groupings and performance award points for all factors other than the probation revocation rates, the ID commitment rate, and the admissions per index crimes factors. Counties with rates above the statewide median for factors other than the probation revocation rates, the ID commitment rate, and the admissions per index crimes factors will receive positive scores, and counties with rates below the state-wide median for those factors will receive negative scores. The first group above the median will receive one positive point, the next group will receive two positive points, and so forth, with the counties in the highest group receiving plus five points. Negative points will be assigned in a similar fashion to counties ranking below the median on these factors. (5) All positive and negative performance award points shall then be totaled for each county to determine the overall performance award score for the county. (6) Each county which obtains an overall performance award score greater than zero shall be eligible to receive the statutory minimum $50,000 grant award, provided that the county complies with all of the other eligibility criteria set forth in the other provisions of these regulations. (7) The Community Justice Assistance Division will then multiply the number of counties eligible for minimum grant funding times $50,000 to determine what dollar amount of the annual appropriation for this program must be utilized to pay for the statutory minimum grant awards, and what dollar amount is available for distribution as performance ranking award funding. (8) Performance ranking award funding shall be determined by the following computations. (A) All funds in excess of the amount which must be disbursed to counties eligible for the minimum $50,000 award will be divided by the total number of positive performance award points earned by those counties eligible for the minimum award to determine the dollar value for each point. (B) Subject to the performance reward funding limit set forward in subsection (b) of this section, each county's actual dollar award shall be determined by multiplying the county's positive performance award points by the dollar value per point. If through this process the total annual appropriation for this program has not been completely allocated, the remaining funds shall be divided by the total number of positive performance award points earned by those eligible counties that have not reached the funding limit set forward in subsection (b) of this section to determine additional performance reward funding for each point. These counties shall receive additional funding equal to the product of the positive performance award points and the additional performance reward funding per point. This process of allocating unutilized appropriations shall be repeated until all annually appropriated funds are expended or until the total dollar value per point reaches 10 times the initially calculated dollar value per point as set forward in subparagraph (A) of this paragraph. (b) Performance reward funding limit. The maximum amount of performance ranking award funding above the $50,000 base referenced in subsection (a)(7) of this section that a county may receive shall be $2.00 per capita, based on the total population of the county as recorded in the most recent census. sec.165.63. Data Collection. Each Community Supervision and Corrections Department (CSCD) shall provide to the Community Justice Assistance Division (CJAD) data relating to the performance factors on each county within the CSCD's jurisdiction. The data is to be reported to CJAD by CSCD in a format determined by CJAD, using definitions for the data elements provided by CJAD. The data reported is to be on the most recent state fiscal year. The CSCD shall report the data for the performance factors to CJAD within timelines determined by CJAD. sec.165.64. County Plan Submission Requirements. (a) Documentation that funds will be used for permissible and required purposes. Each county participating in the performance rewards program is required to submit a plan, including a budget schedule, to the Community Justice Assistance Division (CJAD) indicating that program funding will be used in conformity with statutory mandates. The Texas Code of Criminal Procedure (TCCP), Article 42.13, sec.13, requires that at least 25% of all performance reward funding be spent on payment for substance abuse prevention and treatment programs. The statute also provides that performance reward funding may also be used for the following: (1) any purpose for which state aid may be used under TCCP, Article 42. 13, sec.11(b); (2) implementation of the community justice plan for that county; or (3) any program serving the criminal justice needs of the county, including certified programs for youthful offenders. An "eligible program" must be in compliance with all of the terms and conditions of these Performance Reward Program regulations. (b) Requirements as to plan preparation and submission. To be eligible for funding, a county plan must be prepared and submitted in conformity with the following requirements. (1) The commissioners court of the county must submit to CJAD annually a resolution adopted by the commissioners court which states the county's agreement to participate in the performance reward program under the rules of the performance reward program as adopted by the board, and must name a person designated as the chief fiscal officer for the county to oversee the financial records of the county with respect to the performance reward program. The resolution must be received by CJAD within the timelines determined by CJAD. (2) The county judge or his designee shall prepare the county plan and budget schedule, using formats provided by CJAD, which indicate the manner in which performance rewards shall be used. The county judge shall be the individual, on behalf of the county, to submit the county plan and budget schedule and any reports to CJAD. County plans shall be received by CJAD within the timelines determined by CJAD. (3) Participating counties must comply with TCCP, Article 60.14 (as promulgated in House Bill 93, during the Second Called Session of the 72nd Legislature), which requires that the county "take all action necessary to provide the Texas Department of Criminal Justice and the Department of Public Safety any criminal history records maintained by the county in the manner specified for purposes of those departments." This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 31, 1992. TRD-9204490 Jackee Cox General Counsel Texas Department of Criminal Justice Effective date: April 22, 1992 Proposal publication date: December 17, 1991 For further information, please call: (512) 463-9988 TITLE 43. TRANSPORTATION Part I. Texas Department of Transportation Chapter 15. Division of Transportation Planning Research and Planning Contracts 43 TAC sec.15.13 The Texas Department of Transportation adopts new sec.15.13, concerning new product evaluations, without changes to the proposed text as published in the January 17, 1992, issue of the Texas Register (17 TexReg 397). New sec.15.13 provides procedures for the evaluation of new products and processes which may be of benefit to the department. The new section allows the department to investigate new products and techniques which will result in the most durable and cost-effective transportation system. The new section outlines the purpose, application procedures, evaluation procedures, vendor notification, restrictions, and department responsibilities. No comments were received regarding adoption of the new section. The new section is adopted under Texas Civil Statutes, Article 6666, which provide the Texas Transportation Commission with the authority to promulgate rules and regulations for the conduct of the work of the Texas Department of Transportation. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 31, 1992. TRD-9204451 Diane L. Northam Legal Administrative Assistant Texas Department of Transportation Effective date: April 21, 1992 Proposal publication date: January 17, 1992 For further information, please call: (512) 463-8630 Texas Department of Insurance Exempt Filing Notification Pursuant to the Insurance Code, Chapter 5, Subchapter L (Editor's note: As required by the Insurance Code, Article 5.96 and Article 5.97, the Register publishes notices of actions taken by the State Board of Insurance pursuant to Chapter 5, Subchapter L, of the Code. Board action taken under these articles is not subject to the Administrative Procedure and Texas Register Act. These actions become effective 15 days after the date of publication or on a later specified date. The text of the material being adopted will not be published, but may be examined in the offices of the State Board of Insurance, 333 Guadalupe, Austin.) For consideration, on March 25, 1992, a filing by PMI Mortgage Insurance Company of new grid classifications for mortgage guaranty insurance which would be added to the grid classifications previously approved by Board Order Number 48217 dated January 29, 1986. The new coverages for primary insurance are 5.0%, 7.0%, 10%, 15%, and 27%, and are intended as additional coverage options for financial institutions. They do not replace any currently approved grid classifications in effect. Also, new grid classifications for coverages on owner occupied-down to 80%-fixed payment mortgages and normal amortization. These new primary coverages will provide assistance to lenders in meeting the financial requirements recently enacted under the Financial Institutions Reform Recovery and Enforcement Act (FIRREA). In response to FIRREA and its more stringent capital requirements, some lenders are looking to mortgage guaranty insurance to reduce the amount of risk, thereby lowering the capital reserves needed to meet risk-based capital requirements. A copy of the filing is attached hereto and incorporated into this notification. The Insurance Code, Article 21.50, requires that the State Board of Insurance approve all classifications prior to use. After careful review and consideration, the State Board of Insurance approved the filing by PMI Mortgage Insurance Company. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 1, 1992. TRD-9204484 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance Effective date: April 22, 1992 For further information, please call: (512) 463-6327