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 II. Public Utility Commission of Texas
Chapter 21. Practice and Procedure
Ancillary Proceedings and Proceedings Beyond the Order
16 TAC sec.21.164
The Public Utility Commission of Texas adopts new sec.21.164, concerning appeals 
of administrative penalties, with changes to the proposed text as published in 
the November 29, 1991, issue of the Texas Register (16 TexReg 6893).
The purpose of the new section is to develop a procedure by which those assessed 
an administrative penalty by the commission may appeal such penalty.
During the 30-day comment period specified in the November 29, 1991, issue of 
the Texas Register , comments were received from the City of Austin recommending 
two changes to the proposed rule.
First, the City of Austin recommends that the proposed rule be specifically 
limited to the payment of penalties by persons owning and/or operating an ADAD. 
However, this rule does not address the payment of the administrative penalties 
by ADAD operators. The rule provides a mechanism by which those assessed an 
administrative penalty may appeal the penalty. The commission finds that this 
comment does not warrant a change.
Second, the City of Austin recommends that the proposed rule be modified to 
eliminate the foreclosure of the right to appeal for failure to pay the penalty 
or post bond. The section as adopted incorporates this change.
The amendment is adopted under Texas Civil Statutes, Article 1446c, sec.16(a), 
which provide the Public Utility Commission of Texas with the authority to make 
and enforce the rules reasonably required in the exercise of its powers and 
jurisdiction.
sec.21.164. Appeals of Administrative Penalties.
(a) Within the 30-day period immediately following the day on which the 
commission's order is final, the person charged with a penalty shall pay the 
penalty in full.
(b) The person assessed a penalty by the commission may suspend enforcement of 
the penalty while seeking judicial review by forwarding the amount of the 
penalty to the commission for placement in an escrow account or posting with the 
commission a supersedeas bond payable to the Public Utility Commission for the 
amount of the penalty, within the 30-day period immediately following the day on 
which the commission's order is final.
(c) In the event the person assessed fails to take any of the actions in 
subsections (a) and (b) of this section, the general counsel, upon approval of 
the commission, may forward the matter to the attorney general for enforcement.
(d) In the event that the final appellate determination is against the person 
assessed a penalty, he or she shall pay the commission the full amount of the 
penalty, and the commission shall deposit the amount of the penalty in the state 
treasury to the credit of the general revenue fund.
(e) In the event that the final appellate determination is in favor of the 
person assessed, he or she shall be absolved of all liability for payment of the 
amount of the penalty, and the commission shall return the amount of the penalty 
assessed with a certificate of its return.
(f) Any supersedeas bond or escrow account filed with the commission for the 
purpose of appeal of the final decision of the commission shall be drawn 
according to a form on file in the office of the secretary of the commission. 
Upon request, the secretary of the commission shall certify the receipt of the 
amount of any penalty received by the commission for the purpose of appeal.
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 May 1, 1992.
TRD-9206057
Mary Ross McDonald
Secretary
Public Utility Commission of Texas
Effective date: May 22, 1992
Proposal publication date: November 29, 1991
For further information, please call: (512) 458-0100
       
Chapter 23. Substantive Rules
Certification
The Public Utility Commission of Texas adopts the repeal of sec.23.32 and adopts 
new sec.23.32, concerning certification. The new section is adopted with changes 
to the proposed text as published in the November 29, 1991, issue of the Texas 
Register (16 TexReg 6894). The repeal is adopted without changes and will not be 
republished.
The new section is adopted to implement the provisions of Texas Civil Statutes, 
Article 1446C, Article XV, sec.sec.111-118, which took effect September 1, 1991.
During the 30-day comment period specified in the November 29, 1991, issue of 
the Texas Register , comments in support of the proposed section were received 
from the Texas Telephone Association (TTA). Southwestern Bell Telephone Company, 
TTA, and the Texas Statewide Telephone Cooperative, Inc., requested 
modifications to the proposed section. No comments in opposition to the repeal 
or the new section were received.
Two commenters suggested that the rule should specify that the commission will 
issue an order requiring an LEC to disconnect service to an ADAD which is in 
violation of Article XV of PURA. This suggestion has been incorporated into the 
rule as adopted.
In response to three comments, the rule has been amended to extend the length of 
time for a LEC to forward to the commission a consumer complaint regarding an 
ADAD from one to three business days.
One commenter proposed that LECs be required to forward written complaints along 
with complaint forms. Another comment proposed that a written complaint be 
forwarded in lieu of a complaint form. The rule was amended to require the 
forwarding of a written complaint along with a complaint form.
One party commented that the rule's requirement that LECs forward to the 
commission complaints regarding ADADs imposes economic costs on the LECs. While 
the commission staff agrees that compliance with this rule may impose some 
economic cost on LECs, these costs are attributable to statutory requirements 
found in PURA, sec.115(e), which requires an LEC to send to the commission a 
complaint relating to the use of an ADAD.
The section as adopted specifies that a person holding a permit which was issued 
prior to September 1, 1991 must apply for renewal within 60 days of the 
effective date of this rule. Otherwise, the expiration date of each individual 
permit will determine when an application for renewal must be made.
The title of the new section was changed to agree with the content of the 
section. Typographical and technical mistakes in the published section were 
corrected.
16 TAC sec.23.32
repeal is adopted under Texas Civil Statutes, Article 1446c, sec.16, which 
provide the Public Utility Commission of Texas with the authority to make and 
enforce rules reasonably required in the exercise of its powers and 
jurisdiction; sec.115(e), which requires the commission to prescribe by rule the 
procedures and requirements for an LEC to send to the commission a complaint 
relating to the use of an ADAD; and sec.118 which states that the commission may 
adopt any rules necessary to carry out its powers and duties under Article XV of 
Article 1446c.
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 May 1, 1992.
TRD-9206055
Mary Ross McDonald
Secretary
Public Utility Commission of Texas
Effective date: May 22, 1992
Proposal publication date: November 29, 1991
For further information, please call: (512) 458-0100
       
The new section is adopted under Texas Civil Statutes, Article 1446c, sec.16, 
which provides the Public Utility Commission of Texas with the authority to make 
and enforce rules reasonably required in the exercise of its powers and 
jurisdiction; sec.115(e), which requires the commission to prescribe by rule the 
procedures and requirements for an LEC to send to the commission a complaint 
relating to the use of an ADAD; and sec.118 which states that the commission may 
adopt any rules necessary to carry out its powers and duties under Article XV of 
Article 1446c.
sec.23.32. Automatic Dial Announcing Devices.
(a) Purpose. The purpose of this section is to regulate the use of automatic 
dial announcing devices.
(b) Definitions. The following words and terms, when used in this section, shall 
have the following meanings, unless the context clearly indicates otherwise.
(1) Automatic dial announcing device (ADAD)-Any automated equipment used for 
telephone solicitation or collection that:
(A) is capable of storing numbers to be called, or has a random or sequential 
number generator capable of producing numbers to be called; and
(B) alone or in conjunction with other equipment, can convey a prerecorded or 
synthesized voice message to the number called without the use of a live 
operator.
(2)  Pay-per-call information service-A service that allows a caller to dial a 
specified "900" or "976" number to call a service that routinely delivers, for a 
predetermined and sometimes time-sensitive fee, a prerecorded or live message or 
interactive program.
(3) Telephone solicitation-An unsolicited telephone call.
(c) Requirements for use of an automatic dial announcing device. A person who 
operates an ADAD to make a telephone call in which the device plays a recorded 
message when a connection is completed to a telephone number must comply with 
the following requirements.
(1) An ADAD operator must obtain a permit from the commission and give written 
notice specifying the type of device to be connected to each telecommunications 
utility over whose system the device is to be used.
(2) The device must not be used for random number dialing or to dial numbers by 
successively increasing or decreasing integers.
(3) The message must state during the first 30 seconds of the call the nature of 
the call, the identity of the person, company, or organization making the call, 
and the telephone number from which the call was made.
(4) The device must disconnect from the called person's line no later than 30 
seconds after the call is terminated by either party or, if the device cannot 
disconnect within that period, a live operator must introduce the call and 
receive the oral consent of the called person before beginning the message.
(5) For calls terminating in this state, the device must not be used to make a 
call:
(A) for solicitation before noon or after 9 p.m. on a Sunday or before 9 a.m. or 
after 9 p.m. on a weekday or a Saturday; or
(B) for collection purposes at an hour at which collection calls would be 
prohibited under the federal Fair Debt Collection Practices Act (15 United 
States Code Section 1692 et seq).
(6) Calls may not be made to emergency telephone numbers of hospitals, fire 
departments, law enforcement offices, or other entities providing emergency 
service.
(7) If during a call a cross-promotion or reference to a pay-per-call 
information service is made, the call must include:
(A) a statement that a charge will be incurred by a caller who makes a call to a 
pay-per-call information services telephone number;
(B) the amount of the flat-rate or cost-per-minute charge that will be incurred 
or the amount of both if both charges will be incurred; and
(C) the estimated amount of time required to receive the entire information 
offered by the service during a call.
(d) Permit to operate an ADAD.
(1) An application for a permit to use one or more ADADs must be made using a 
form prescribed by the commission and must be accompanied by a fee of $500. A 
permit is valid for one year after its date of issuance. A person holding a 
permit which was issued prior to September sec.91 must apply for renewal within 
60 days of the effective date of this rule. Subsequent renewals must be applied 
for no later than 90 days prior to the expiration date of the current permit. 
Subject to paragraph (3) of this subsection, a permit may be renewed annually by 
making the filing required by this section and paying a renewal fee of $100.
(2) Each application for the issuance or renewal of a permit under this section 
must contain the telephone number of each ADAD that will be used and the 
physical address from which the ADAD will operate. If the telephone number of an 
ADAD or the physical address from which the ADAD operates changes, the owner or 
operator of the ADAD shall notify the commission by certified mail of each new 
number or address not later than the 48th hour before the hour at which the ADAD 
will begin operating with the new telephone number or at the new address. If the 
owner or operator of an ADAD fails to notify the commission as required by this 
subsection within the period prescribed by this subsection, the permit is 
automatically invalid.
(3) In determining if a permit should be issued or renewed, the commission will 
consider the compliance record of the owner or operator of the ADAD. The 
commission may deny an application for the issuance or renewal of a permit 
because of the applicant's compliance record.
(4)  An LEC may obtain on request to the commission a copy of a permit issued 
under this section and of any changes relating to the permit.
(5) The commission may revoke a permit to operate an ADAD for failure to comply 
with this section.
(e) Exceptions. This section does not apply to the use of an ADAD to make a 
telephone call:
(1) relating to an emergency or a public service under a program developed or 
approved by the emergency management coordinator of the county in which the call 
was received; or
(2) made by a public or private primary or secondary school system to locate or 
account for a truant student.
(f) Complaints, investigation, and enforcement.
(1) If the commission determines that a person has violated the requirements of 
this section, the telecommunications utility providing service to the user of 
the ADAD shall comply with a commission order to disconnect service to the 
person. The telecommunications utility may reconnect service to the person only 
on a determination by the commission that the person will comply with this 
section. The utility shall give notice to the person using the device of the 
utility's intent to disconnect service not later than the third day before the 
date of the disconnection, except that if the device is causing network 
congestion or blockage, the notice may be given on the day before the date of 
disconnection.
(2) A telecommunications utility may, without an order by the commission or a 
court, disconnect or refuse to connect service to a person using or intending to 
use an ADAD if the utility determines that the device would cause or is causing 
network harm.
(3)  An LEC that receives a complaint relating to the use of an ADAD shall send 
the complaint to the commission according to the following guidelines.
(A) The complaint shall be recorded on a form prescribed by the commission.
(B) The LEC shall inform the complainant that the complaint, including the 
identity of the complainant and other information relevant to the complaint, 
will be forwarded to the commission.
(C) The complaint form and any written complaint shall be forwarded to the 
commission within three business days of its receipt by the LEC.
(g)  Penalties. A person who operates an ADAD without a valid permit or with an 
expired permit or who otherwise operates the ADAD in violation of this section 
or a commission order is subject to an administrative penalty of not more than 
$1,000 for each day or portion of a day during which the ADAD was operating in 
violation of this section.
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 May 1, 1992.
TRD-9206054
Mary Ross McDonald
Secretary
Public Utility Commission of Texas
Effective date: May 22, 1992
Proposal publication date: November 29, 1991
For further information, please call: (512) 458-0100
       
Certification
16 TAC sec.23.33
The Public Utility Commission of Texas adopts new sec.23.33, concerning 
telephone solicitation, with changes to the proposed text as published in the 
November 29, 1991, issue of the  Texas Register (16 TexReg 6895).
The purpose of the new section is to require local exchange carriers (LECs) to 
inform their customers of provisions of the law regarding telephone solicitation 
and to ensure that telephone solicitors implement in-house systems and 
procedures to ensure that they do not repeatedly solicit persons who ask not to 
receive consumer telephone calls.
The new section is adopted to implement the provisions of Texas Civil Statutes, 
Article 1446C, Article XV, sec.sec.119-120, which took effect January 1, 1992.
During the 30-day comment period specified in the November 29, 1991, issue of 
the Texas Register , comments in support of the proposed section were received 
from the Texas Telephone Association (TTA). Southwestern Bell Telephone Company, 
TTA, and the Texas Statewide Telephone Cooperative, Inc., requested 
modifications to the proposed section. No comments in opposition to the new 
section were received.
Two parties who filed comments suggested that the commission give LECs more 
specific guidance with respect to the notice required by sec.23.33(c). The 
section as adopted contains the actual text to be published by LECs.
The section as adopted also adds the requirement that telephone solicitors, upon 
request, provide to the Public Utility Commission a written description of their 
systems and procedures used to prevent calling consumers who have asked not to 
be called again.
Typographical and technical mistakes in the published section were corrected.
The new section is adopted under Texas Civil Statutes, Article 1446c, sec.16, 
which provide the Public Utility Commission of Texas with the authority to make 
and enforce rules reasonably required in the exercise of its powers and 
jurisdiction; sec.119, which places certain requirements on telephone solicitors 
and grants the commission authority to enforce its provisions; and sec.120 which 
requires the commission to require by rule that a LEC inform its customers of 
certain provisions of the law relating to telephone solicitation.
sec.23.33. Telephone Solicitation.
(a) Purpose. The purpose of this section is to require local exchange carriers 
(LECs) to inform their customers of provisions of the law regarding telephone 
solicitation and to require telephone solicitors to implement systems and 
procedures to ensure that they do not repeatedly solicit persons who ask not to 
receive consumer telephone calls.
(b) Definitions. The following words and terms, when used in this section, shall 
have the following meanings, unless the context clearly indicates otherwise.
(1) Consumer telephone call-An unsolicited call made to a residential telephone 
number to:
(A) solicit a sale of a consumer good or service;
(B) solicit an extension of credit for a consumer good or service; or
(C) obtain information that will or may be used to directly solicit a sale of a 
consumer good or service or to extend credit for the sale.
(2)  Consumer good or service-
(A) real property or tangible or intangible personal property that is normally 
used for personal, family, or household purposes, including personal property 
intended to be attached to or installed in any real property;
(B) a cemetery lot;
(C) a time-share estate; or
(D) a service related to real or personal property.
(3) Telephone solicitor-A person who makes or causes to be made a consumer 
telephone call, including a call made by an automatic dialing/announcing device.
(c) Responsibility of LECs. Each LEC shall inform its customers of the 
provisions of the Business and Commerce Code, Chapter 37, and the Public Utility 
Regulatory Act, sec.119 (Texas Civil Statutes, Article 1446c), by inserting the 
notice prescribed by this subsection annually in the billing statement mailed to 
a customer or publishing the notice in the consumer information pages of its 
local telephone directory. The notice shall read as follows:
"TELEPHONE SOLICITATION
"Texas law provides certain protections for a person who receives a telephone 
solicitation at a residence.
"A telephone solicitor must:
* identify himself or herself by name
* identify the business on whose behalf he or she is calling;
* identify the purpose of the call
"A telephone solicitor may not call a residence before 9 a.m. or after 9 p.m. on 
a weekday or Saturday or before noon or after 9 p.m. on Sunday.
"If a telephone solicitor uses an automatic dialing/announcing device, the 
machine must disconnect from your line within 30 seconds after termination of 
the call.
"Exceptions: The requirements above do not apply to telephone solicitations made 
at your request, or solicitations made in connection with an existing debt or 
contract, or calls from a telephone solicitor with whom you have a prior or 
existing business relationship.
"If you use a credit card to purchase a good or service from a telephone 
solicitor other than a public charity (an organization exempt from federal 
income tax under the Internal Revenue Code, sec.501(c)(3)), the seller must:
* offer a full refund for the return of undamaged and unused goods within seven 
days after you receive the goods or service (the seller must process the refund 
within 30 days after you return the merchandise or cancel your order for 
undelivered goods or services); or
* provide you with a written contract fully describing the goods or services 
being offered, the total price charged, the name, address, and business phone of 
the seller, and any terms and conditions affecting the sale.
"Complaints. The Texas Attorney General investigates complaints relating to a 
violation of this law, which is found at the Business and Commerce Code, Chapter 
37. If you have a complaint about a telephone solicitor whom you believe has 
violated this law, contact:
Consumer Protection Division, Office of the Attorney General of Texas, P.O. Box 
12548, Austin, Texas 78711, (512) 463-2070."
"Another law, found at Texas Civil Statutes Article 1446c, sec.119 and sec.120, 
requires a telephone solicitor to make every effort not to call a consumer who 
asks not to be called again. Complaints relating to a violation of this law are 
investigated by the Public Utility Commission of Texas. If you have a complaint 
about repeated solicitation from a telephone solicitor you have asked not to 
call you again, contact:
Public Information Office Public, Utility Commission of Texas, 7800 Shoal Creek 
Boulevard, Suite 400N, Austin, Texas 78757 (512) 458-0256 or (512) 458-0221 
teletypewriter for the deaf."
(d) Responsibilities of telephone solicitors. Each telephone solicitor operating 
in this state who makes consumer telephone calls shall implement systems and 
procedures so that every effort is made not to call consumers who ask not to be 
called again. Upon request, a telephone solicitor shall provide a written 
description of such systems and procedures to the Public Utility Commission.
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 May 1, 1992.
TRD-9206056
Mary Ross McDonald
Secretary
Public Utility Commission of Texas
Effective date: May 22, 1992
Proposal publication date: November 29, 1991
For further information, please call: (512) 458-0100
       
TITLE 22. EXAMINING BOARDS
Part XV. Texas State Board of Pharmacy
Chapter 291. Pharmacies
22 TAC sec.291.39
The Texas State Board of Pharmacy adopts the repeal of  sec.291.39, concerning 
Class A Pharmacies Located in a State Other than Texas. The 72nd Legislature 
passed Senate Bill 1497 which gives the Board the authority to license out-of-
state pharmacies as Class E (Non-resident) Pharmacies. Since this legislation 
was passed, the rules, which classify out-of-state pharmacies as Class A 
pharmacies are no longer applicable. Out-of-state (Non-resident) pharmacies will 
be licensed as specified in Senate Bill 1497 and rules for Class E Pharmacies 
will be promulgated in the near future.
No comments were received on the proposed repeal of this rule.
The repeal is proposed under the Texas Pharmacy Act (Texas Civil Statutes, 
Article 4542a-1) Section 16 which gives the Texas State Board of Pharmacy the 
authority to adopt rules for the proper administration and enforcement of the 
Act.
sec.291.39. Pharmacies Located in a State Other than Texas.
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 May 1, 1992.
TRD-9206051
Fred S. Brinkley, Jr., R.Ph., M.B.A.
Executive Director/Secretary
Texas State Board of Pharmacy
Effective date: May 22, 1992
Proposal publication date: November 8, 1991
For further information, please call: (512) ?
       
TITLE 28. INSURANCE
Part I. Texas Department of Insurance
Chapter 1. General Administration
Subchapter D. Effect of Criminal Conduct on Licenses
28 TAC sec.1.501, sec.1.502
The State Board of Insurance of the Texas Department of Insurance adopts 
amendments to sec.1.501 and sec.1.502, concerning the effect of criminal conduct 
on licensing of all persons licensed or seeking to be licensed by the Texas 
Department of Insurance. Section 1.502 is adopted with one change to the 
proposed text as published in the December 27, 1991, issue of the Texas Register 
(16 TexReg 7700). Section 1.501 is adopted without changes and will not be 
republished.
The amended sections are necessary to implement legislation enacted by the 72nd 
Legislature, codified as Texas Insurance Code, Article 21.07, sec.10A and 
Article 1.14A, relating to ineligibility for an agent's license based on a 
felony conviction and to ineligibility for a certificate of authority based on a 
felony conviction, respectively. These sections also implement the provisions of 
Texas Civil Statutes, Article 6252-13d,  sec.4, and are intended to give effect 
to and harmonize Texas Civil Statutes, Article 6252-13d, sec.4, relating to the 
suspension, revocation, or denial of license to persons with criminal 
backgrounds, and the Insurance Code, Article 21.07, sec.10A and Article 1.14A. 
The change to sec.1.502(a)(3)(D) replaces the word "shall" with the word "may" 
in the first statement of subparagraph (D).
Section 1.501 describes the purpose and scope of these rules and sec.1.502 
describes the effect on licensure of criminal conduct of licensees, applicants, 
and corporate officials. The new sections are intended to give effect to and 
harmonize Texas Civil Statutes, Article 6252-13d, sec.4 and the Insurance Code, 
Articles 21.07, sec.10A and 1.14A.
Northwestern Mutual Life Insurance Company commented against adoption of the 
amendments.
One individual commented on behalf of an insurance company regarding the 
amendment proposed in sec.1.502(a)(3)(D) wherein the Texas Department of 
Insurance shall, after notice and hearing, revoke the certificate of authority 
of an insurance company if a corporate official of the company is convicted of a 
felony involving moral turpitude or breach of a fiduciary duty. This individual 
commented that the rule would place an insurer in an untenable position of 
choosing between terminating any indicted official prior to conviction or 
subjecting itself to a mandatory hearing in which its certificate of authority 
might be revoked. This individual recommended that the rule apply only to 
executive officers of an insurance company and that the conviction should be 
considered only when a license is being renewed. Pursuant to the provisions of 
the Insurance Code, Article 1.14, sec.1, a certificate of authority is in full 
force and effect until it is revoked, canceled, or suspended according to law, 
without an annual renewal.
The board agrees with part of the comment regarding the effect of the rule would 
have on an insurance company which has a company official who has been indicted. 
However, if a conviction is appealed, it is not a final conviction upon which 
the department would set a hearing until there is a decision on the appeal. The 
board argees with the comment about a mandatory hearing and has changed "shall" 
to "may" to reflect the statutory language and has reworded the dependent clause 
in the first sentence. The board is unable to relieve the commenter of other 
stated concerns. The legislature of necessity must enact statutes with broad 
coverage in order to afford protection for policyholders. The language in the 
sections is intended to give effect to the statute and not in any way narrow the 
protection afforded by the statute by limiting the persons or times affected.
The amendments are adopted under the Insurance Code, Articles 21.07, 1.14A and 
1.04, and Texas Civil Statutes, Article 6252-13a, sec.4 and sec.5, and Article 
6252-13d. The Insurance Code, Article 21.07, sec.10A, provides for ineligibility 
for an agent's license based on a felony conviction. Article 1.14A provides for 
ineligibility of an insurance company for a certificate of authority based on a 
felony conviction. Article 1.04(b) authorizes the board to determine rules in 
accordance with the laws of this state for uniform application. Texas Civil 
Statutes, Article 6252-13a, sec.4 and sec.5 authorize and require each state 
agency to adopt rules of practice setting forth the nature and requirements of 
available procedures and prescribe procedures for adoption of rules by a state 
administrative agency. Article 6252-13d, sec.4, requires each licensing 
authority to file with the Secretary of State for publication in the Texas 
Register guidelines pertaining to the suspension, revocation or denial of 
licenses to persons with criminal backgrounds.
sec.1.502. Effect of Criminal Conduct of Applicants, Licensees, and Corporate 
Officials on Licensure.
(a) The Texas Department of Insurance considers it very important that 
licensees, all corporate officials, including corporate officers and members of 
boards of directors of insurance companies (referred to as corporate officials 
in these rules), and license applicants and all corporate officials of license 
applicants be honest, trustworthy, and reliable. Accordingly, crimes involving 
moral turpitude, including, but not limited to, fraud, dishonesty, and the 
mishandling of funds are generally of prime importance in determining fitness 
for licensure.
(1) The special nature of the relationship between agents, insurance companies, 
other insurance-related entities, the corporate officials of such entities, and 
the public with respect to insurance and related businesses regulated by the 
Texas Department of Insurance, requires trust in and reliance upon such persons 
because of the complex and varied nature of insurance and insurance-related 
products which require citizens to place reliance on insurance and insurance-
related licensees. In light of this special relationship, the matters specified 
in Texas Civil Statutes, Article 6252-13(c), sec.4(b) and (c), and described in 
subsection (b) of this section, will be considered by the Texas Department of 
Insurance in determining whether to grant, deny, suspend, or revoke any license 
under its jurisdiction.
(2) Where the legislature has set out specific criteria for any license, such 
specific criteria shall be considered by the Texas Department of Insurance in 
considering whether to grant, deny, suspend, or revoke such licenses. In the 
event of any conflict with these rules, those specific statutory criteria shall 
govern licensure under such statutes.
(3) The department, in considering the matters described in subsection (b) of 
this section, has determined that the serious nature of felony convictions 
involving crimes of moral turpitude or breach of fiduciary duty, bear such a 
strong relationship to the occupations which are licensed by the department, 
that special rules should apply to licensure of persons convicted of such 
crimes. The following rules, therefore, apply to persons convicted of felonies 
involving crimes of moral turpitude or breach of fiduciary duty.
(A) The department shall not issue a license to any applicant for a license as 
an insurance agent subject to Article 21.07, sec.10A, if the applicant has been 
convicted of a felony involving moral turpitude or breach of a fiduciary duty, 
except as provided in subparagraph (F) of this paragraph.
(B) The department shall not issue a certificate of authority to any applicant 
for a certificate of authority as an insurance company if a corporate official 
of the company has been convicted of a felony involving moral turpitude or 
breach of a fiduciary duty, except as provided in subparagraph (F) of this 
paragraph.
(C) The department shall not issue a license to any applicant for any license 
regulated by the department, other than a license as an insurance agent subject 
to Article 21.07, sec.10A, or a certificate of authority as an insurance 
company, if the applicant has been convicted of a felony involving moral 
turpitude or breach of a fiduciary duty, unless the commissioner of insurance 
finds that the other matters set out in subsection (b) of this section outweigh 
the serious nature of a felony conviction involving moral turpitude or breach of 
fiduciary duty when viewed in light of the occupation being licensed, except as 
provided in subparagraph (F) of this paragraph.
(D) The department may, after notice and hearing, revoke the certificate of 
authority of an insurance company if a corporate official of the company is 
convicted of a felony involving moral turpitude or breach of a fiduciary duty. 
In determining whether to revoke the certificate of authority of the insurance 
company, the department shall consider the factors set forth in subsection (b) 
of this section and whether the insurance company has terminated the corporate 
official with the felony conviction. The certificate of authority may not be 
reinstated except as provided in subparagraph (F) of this paragraph.
(E) The department shall, after notice and hearing, revoke the license of any 
licensee if the licensee is convicted of a felony involving moral turpitude or 
breach of a fiduciary duty, unless the other factors set forth in subsection (b) 
of this section outweigh the serious nature of the crimes involved when viewed 
in light of the special relationship between the licensee and the public. The 
license may not be reinstated except as provided in subparagraph (F) of this 
paragraph.
(F) A licensee or applicant whose application for issuance of a license has been 
denied or whose license has been revoked under subparagraph (D) or subparagraph 
(E) of this paragraph, may petition the commissioner of insurance for issuance 
or reinstatement of the license under the following conditions.
(i) The licensee or applicant may not make a petition for issuance or 
reinstatement of a license before a date five years after the date of final 
conviction or, if the licensee, applicant, or corporate official of the licensee 
or applicant has been sentenced to prison or probation, five years after the 
date the sentence or probation terminates.
(ii) A petition for issuance or reinstatement of a certificate of authority may 
be made at any time after the convicted corporate official is no longer a 
corporate official of the company.
(iii) The petition for issuance or reinstatement of a license must set forth the 
following information:
(I) the date of final conviction and/or the date the sentence or probation 
terminated; and
(II) the reasons why the petitioner believes the license should be issued or 
reinstated.
(iv) The petition should be filed with the associate commissioner for license 
and investigations.
(v) The office of the associate commissioner for license and investigations may 
order an investigation of the facts surrounding the initial failure to issue the 
license or revocation of the license or any other matters deemed relevant to the 
petition.
(vi) After notice and hearing, the commissioner of insurance (referred to in 
these rules as the commissioner) shall grant the petition if the petitioner 
demonstrates that it would be in the public interest and that justice would be 
served if the license was issued or reinstated.
(vii) In determining whether it would be in the public interest and that justice 
would be best served if the license were to be issued or reinstated, the 
commissioner shall consider:
(I) those factors set forth in subsection (b) of this section;
(II) any other matters the commissioner deems relevant to the issuance or 
reinstatement of the license.
(4) (No change.)
(b) The matters specified in Texas Civil Statutes, Article 6252-13c, sec.4(b) 
and (c), will be considered by the Texas Department of Insurance in determining 
whether to grant or deny, or suspend or revoke any person's license under its 
jurisdiction, as well as any and all other matters which constitute proper 
evidence under other law, including matters contained in any other valid rule or 
statute. The matters specified in Texas Civil Statutes, Article 6252-13c, 
sec.4(b) and (c), recodified as sec.1 of Article 6252-13d, sec.1 are listed 
following.
(1) In determining whether a criminal conviction directly relates to the duties 
and responsibilities of the licensed occupation, the following matters shall be 
considered:
(A) the nature and seriousness of the crime;
(B) the relationship of the crime to the purposes for requiring a license to 
engage in the occupation;
(C) the extent to which a license might offer an opportunity to engage in 
further criminal activity of the same type as that in which the person 
previously had been involved; and
(D) the relationship of the crime to the ability, capacity, or fitness required 
to perform the duties and discharge the responsibilities of the licensed 
occupation.
(2) In addition to the factors listed in paragraph (1) of this subsection, the 
following evidence shall be considered in determining the present fitness of a 
person who has been convicted of a crime:
(A) the extent and nature of the person's past criminal activity;
(B) the age of the person at the time of the commission of the crime;
(C) the amount of time that has elapsed since the person's last criminal 
activity;
(D) the conduct and work activity of the person prior to and following the 
criminal activity;
(E) evidence of the person's rehabilitation or rehabilitative effort while 
incarcerated or following release; and
(F) other evidence of the person's present fitness, including letters of 
recommendation from: prosecution, law enforcement, and correctional officers who 
prosecuted, arrested, or had custodial responsibility for the person; the 
sheriff and chief of police in the community where the person resides; and any 
other persons in contact with the convicted person.
(3) Article 6252-13d, sec.1 also provides that it shall be the responsibility of 
the licensee or applicant to the extent possible to secure and provide to the 
commissioner the information referred to in paragraph (2)(F) of this subsection. 
The licensee or applicant shall also furnish proof that the licensee or 
applicant has maintained a record of steady employment and has supported the 
licensee's or applicant's dependents where applicable, and has otherwise 
maintained a record of good conduct, and has paid all outstanding court costs, 
supervision fees, fines, and restitution as may have been ordered in all 
criminal cases in which licensee or applicant has been convicted.
(c) ( No change.)
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 29, 1992.
TRD-9205921
Linda K. von Quintus-Dorn
Chief Clerk
Texas Department of Insurance
Effective date: May 20, 1992
Proposal publication date: December 27, 1991
For further information, please call: (512) 463-6327
       
Chapter 5. Property and Casualty Insurance
Subchapter E. Texas Catastrophe Property Insurance Association Inspection for 
Windstorm and Hail Insurance
28 TAC sec.5.4603
The State Board of Insurance of the Texas Department of Insurance adopts an 
amendment to sec.5.4603, concerning forms for windstorm inspections, without 
changes to the proposed text as published in the January 28, 1992, issue of the 
Texas Register (17 TexReg 614).
Section 5.4603 adopts by reference a mobile home tie-down survey, Form WPI-MH-1, 
which is amended to simplify the format of the form and to add additional 
inspection information to allow a more efficient and comprehensive inspection 
process. The amendments are adopted in furtherance of the legislative direction 
in the Insurance Code, Article 21.49, sec.6A(e), that the board promulgate rules 
and forms to effect provisions of sec.6A, relating to Inspection for Windstorm 
and Hail Insurance.
The amendment changes the formatting of the form to simplify the inspection 
process allowing an inspector to use a check block system for responding to 
specific information. In addition, additional information is included on the 
form for determining the tie-down requirements necessary for mobile homes for 
determining the insurability of a mobile home through the Texas Catastrophe 
Property Insurance Association. The amendment also makes a non-substantive 
conforming change to the original text relating to the new name for the agency 
and the change to its mailing address.
No comments were received regarding adoption of the amendment.
The amendment is adopted under the Insurance Code, Article 21.49, sec.6A, and 
Article 1.04(b), and Texas Civil Statutes, Article 6252-13a, sec.4 and sec.5. 
The Insurance Code, Article 21.49 sec.6A(e) authorizes the State Board of 
Insurance to approve forms for windstorm inspections for windstorm and hail 
insurance and to determine insurability for coverage by the Texas Catastrophe 
Property Insurance Association. Article 1.04(b) authorizes the board to 
determine rules. Texas Civil Statutes, Article 6252-13a, sec.4, authorize and 
require each state agency to adopt rules of practicing setting forth the nature 
and requirement of available procedures; sec.5 prescribes the procedures for 
adoption of rules by a state administrative agency.
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 29, 1992.
TRD-9205925
Linda K. von Quintus-Dorn
Chief Clerk
Texas Department of Insurance
Effective date: May 20, 1992
Proposal publication date: January 28, 1992
For further information, please call: (512) 463-6327
       
Subchapter F. Inland Marine Insurance Definition and Classification of Inland 
marine Insurance
28 TAC sec.5.5001
The State Board of Insurance of the Texas Department of Insurance, adopts an 
amendment to 28 TAC sec.5.5001 concerning the classification procedure for risks 
defined by the State Board of Insurance as inland marine insurance, without 
changes to the proposed text as published in the January 17, 1992, issue of the 
Texas Register (17 TexReg 379).
Section 5.5001 adopts by reference the definition and classification of inland 
marine insurance, which is amended by this rule to delete reference to the 
regulatory status designated as "fire and e.c." The amendment is necessary 
because the Texas Insurance Code, Article 5.13-2, which was added by the 72nd 
Legislature, regular session, implements a new file and use rating system for 
commercial property insurance, thereby eliminating maximum fire and extended 
coverage rates promulgated by the State Board of Insurance. In the absence of 
promulgated maximum fire and extended coverage rates, insurers cannot comply 
with the Texas definition of inland marine insurance for those classes or 
subclasses subject to the regulatory status of "fire and e.c.".
The amendment eliminates the reference to "fire and e.c." as a regulatory status 
from the classification procedures contained in the in the rule and subject to 
being written in excess of promulgated rates, since the designation is no longer 
necessary for application to any classification of inland marine insurance.
No comments were received regarding adoption of the amendment.
The amendment is adopted under the Texas Insurance Code, Article 5.53, which 
authorizes the State Board of Insurance to adopt a definition and classification 
of inland marine insurance.
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 29, 1992.
TRD-9205924
Linda K. von Quintus-Dorn
Chief Clerk
Texas Department of Insurance
Effective date: May 20, 1992
Proposal publication date: January 17, 1992
For further information, please call: (512) 463-6327
       
Subchapter F. Inland Marine Insurance Definitions and Classifications of Inland 
Marine Insurance
28 TAC sec.5.5002
The State Board of Insurance of the Texas Department of Insurance, adopts an 
amendment to 28 TAC sec.5.5002, concerning the definitions and classifications 
for risks set out in the Texas Definition of Inland Marine Insurance, without 
change to the proposed text as published in the January 17, 1992, issue of the 
Texas Register (17 TexReg 380).
Section 5.5002 defines and classifies for rate-setting and regulation purposes 
inland marine insurance. The amendment eliminates the reference to the 
regulatory status of "fire and e.c.". The regulatory status of "fire and e.c." 
is no longer applicable since, pursuant to Texas Insurance Code, Article 5.13-2, 
as added by the 72nd Legislature, Regular Sessions, the State Board of Insurance 
will not promulgate maximum fire and extended coverage rates. In the absence of 
promulgated fire and extended coverage rates, insurers cannot comply with the 
rule's prior provisions that the classes or subclasses of bailee customers, cold 
storage locker plant, fine arts dealers, installation risks or builders risks, 
stamp and coin commercial, and self service storage customer be subject to a 
premium charge in excess of State Board of Insurance promulgated fire and 
extended coverage rates.
The amendment eliminates the reference to "fire and e.c.", and a regulatory 
status of "non-regulated" is assigned to the classes or subclasses of bailee 
customers, cold storage locker plants, fine arts dealers, installation risks or 
builders' risks, stamp and coin commercial and self service storage customer. 
Such amendment indicates that rules, rates and forms are not required to be 
filed for these classes or subclasses (with the exception of self service 
storage customer class, which would indicate only rates to be "non regulated" 
since form and rules are required to be filed).
The amendment also corrects errors made to the jeweler's block and musical 
instrument class contained in the previous Texas Register publication.
No comments were received regarding adoption of the amendment.
The amendment is adopted under the Insurance Code, Article 5.53, which 
authorizes the State Board of Insurance to adopt a definition and classification 
of inland marine insurance.
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 29, 1992.
TRD-9205923
Linda K. von Quintus-Dorn
Chief Clerk
Texas Department of Insurance
Effective date: May 20, 1992
Proposal publication date: January 17, 1992
For further information, please call: (512) 463-6327
       
Subchapter G. Workers' Compensation Insurance Plan of Operation of the Texas 
Market Assistance Program (MAP)
28 TAC sec.sec.5.6601-5.6603,5.6605-5.6615
The State Board of Insurance of the Texas Department of Insurance adopts the 
repeal of sec.sec.5.6601-5.6603, and sec. sec.5.6605-5.6615, without changes to 
the proposed text as published in the January 17, 1992, issue of the Texas 
Register (17 TexReg 381).
The repeal of these sections is adopted pursuant to the Texas Insurance Code, 
Article 5.76-2, which gives the State Board of Insurance authority to establish 
a voluntary market assistance program to reduce the number of risks insured by 
the employer's rejected risk fund; and in response to House Bill 62, sec.18.16, 
which amends the Texas Insurance Code, Article 5.76-2, to provide that any fees 
established and collected for market assistance review are dedicated to the 
Texas Workers Compensation Insurance Facility (TWCIF).
The repeal eliminates obsolete requirements as a result of the transfer of the 
MAP from the Texas Department of Insurance to the TWCIF. The Texas Workers' 
Compensation Insurance Facility has proposed an amended plan of operation, 
through its rulemaking procedures, for the Market Assistance Program to the 
Texas Department of Insurance. This plan of operation was adopted by the board 
and became effective March 1, 1992.
No comments were received regarding adoption of the repeals.
The repeal is adopted under the Insurance Code, Articles 5.76-2, 5.62, and 1. 
04, and Texas Civil Statutes, Article 6252-13a, sec.4 and sec.5. Article 5.76-2 
provides that the board shall adopt rules as necessary to implement the market 
assistance program. Article 5.62 provides the Texas Department of Insurance with 
the authority to adopt necessary rules and regulations to carry out the 
provisions of workers' compensation insurance. Article 1.04 authorizes the board 
to determine rules. Texas Civil Statutes, Article 6252-13a, sec.4, authorize and 
require each state agency to adopt rules of practice setting forth the nature 
and requirement of available procedures; sec.5 prescribes the procedures for 
adoption of rules by a state administrative agency.
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 29, 1992.
TRD-9205922
Linda K. von Quintus-Dorn
Chief Clerk
Texas Department of Insurance
Effective date: May 20, 1992
Proposal publication date: January 17, 1992
For further information, please call: (512) 463-6327
       
TITLE 31. NATURAL RESOURCES AND CONSERVATION
Part X. Texas Water Development Board
Chapter 355. Research and Planning Fund
Subchapter A. General Research and Planning
31 TAC sec.355.10
The Texas Water Development Board (the board) adopts an amendment to sec.355. 
10, concerning funding limitations for grants for regional and flood control 
planning under the research and planning fund, without changes to the proposed 
text as published in the December 27, 1991, issue of the Texas Register  (16 
TexReg 7703).
Section 355.10 is amended by adding subsections (e) and (f). Section 355.10(e) 
allows the board to implement regional planning financing of projects in areas 
outside incorporated municipalities where residents are not connected to 
centralized water or wastewater systems, where the Texas Department of Health 
(the department) or its successor has determined that the drinking water supply 
fails to meet department criteria for a community water system, and that a 
nuisance dangerous to the public health and safety exists resulting from water 
supply or sanitation problems in the area. The board was appropriated funds in 
Rider Number 8, of the board's General Appropriations Bill (House Bill 1, 72nd 
Legislature, 1991, First Called Session) to finance water and wastewater 
projects in these areas.
Section 355.10(f) allows the board to develop and implement a basin-wide flood 
control program for the Sabine River Basin and a study of a flood control 
program for the Salt Creek portion of the Trinity River Basin. The board was 
appropriated funds in Rider Number 11, of the board's General Appropriations 
Bill (House Bill 1, 72nd Legislature, 1991, First Called Session) to provide a 
100% grant for required studies to be done in conjunction with the Sabine River 
Authority, the Trinity River Authority, and recognized regional or county 
associations.
The amendment is adopted under the Texas Water Code, sec.6.101 and the Texas 
Water Code, Chapter 15, Subchapter F, sec.15.403, which requires the board to 
adopt rules necessary to carry out the powers and duties of the board and of 
various programs of the research and planning fund.
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 28, 1992.
TRD-9205978
Suzanne Schwartz
General Counsel
Texas Water Development Board
Effective date: May 21, 1992
Proposal publication date: December 27, 1991
For further information, please call: (512) 463-7981
       
TITLE 37. PUBLIC SAFETY AND CORRECTIONS
Part III. Texas Youth Commission
Chapter 87. Treatment
Education Program
37 TAC sec.87.37
The Texas Youth Commission (TYC) adopts sec.87.37, concerning college/technical 
institute financial assistance, with changes to the proposed text as published 
in the March 31, 1992, issue of the Texas Register (17 TexReg 2332).
The new section concerns financial assistance for youth in TYC custody to attend 
college or technical institute. The new section will bring about increased 
opportunity for juvenile rehabilitation in an effort to decrease recidivism.
Through the new section, qualified youth financially unable to attend are 
afforded an opportunity to apply for TYC college or technical institute 
financial assistance.
No comments were received regarding adoption of the new section.
The new section is adopted under the Human Resources Code, sec.61.034, which 
provides the Texas Youth Commission with the authority to make rules appropriate 
to the proper accomplishment of its functions.
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 May 1, 1992.
TRD-9206086
Ron Jackson
Executive Director
Texas Youth Commission
Effective date: May 25, 1992
Proposal publication date: March 31, 1992
For further information, please call: (512) 483-5244
       
Chapter 91. Discipline and Control
Due Process Hearing Procedures
37 TAC sec.91.31
The Texas Youth Commission (TYC) adopts an amendment to  sec.91.31, concerning 
Level I hearing procedure, with changes to the proposed text as published in the 
March 31, 1992, issue of the Texas Register (17 TexReg 2333). The changes 
require that Level I hearings and dispositions are reviewed by the director of 
legal services. Youth are to be given a copy of the hearing report form 
immediately following the close of a hearing. Also, the primary service worker 
is instructed to call the legal department to schedule the hearing.
The amendment to the section will bring about more efficient administrative 
procedures in the scheduling and reviewing of the hearings.
The amendment provides instruction for the director of legal to review hearings, 
the primary service worker to schedule hearings, and for the youth to receive a 
copy of the hearing.
No comments were received regarding adoption of the amendment.
The amendment is adopted under the Human Resources Code,  sec.61.034, which 
provides the Texas Youth Commission with the authority to make rules appropriate 
to the proper accomplishment of its functions.
sec.91.31. Level I Hearing Procedure.
(a) Policy. The Level I hearing procedure is appropriate due process in the 
following instances: parole revocation and reclassification. See General 
Operating Policy (GOP) 65.02,  sec.91. 32 of this title (relating to Level I 
Hearing by Telephone) for circumstances in which the hearing may be conducted by 
telephone.
(b) Rules.
(l)  The hearing shall be conducted by a hearings examiner appointed by the 
Texas Youth Commission (TYC) director of legal services. The hearings examiner 
shall be one who has not previously participated in a hearing for the youth.
(2)  The hearing shall be conducted in two parts: fact-finding and disposition.
(A) The purpose of the fact-finding shall be to establish whether the youth's 
behavior and/or circumstances require that action be taken.
(B)  The purpose of the disposition shall be to determine whether the action 
proposed by TYC staff is appropriate under TYC policy.
(3) The person requesting a hearing shall appoint a staff representative to 
appear at the hearing and present the reasons for the proposed action. The staff 
representative shall also be responsible for making relevant information 
available to all parties to the hearing.
(4) The youth shall be assisted by legal counsel at the hearing. Counsel for 
indigent youth will be provided through the counsel for indigent parolees 
program of the State Bar of Texas.
(5) The primary service worker shall call the legal services department to 
schedule the hearing as soon as practicable but no later than seven days, 
excluding weekends and holidays, after the alleged violation.
(6) The date and time for the hearing shall be determined by the hearings 
examiner.
(7) The hearing shall be held in the community in which the youth resides 
unless, for good cause, the hearings examiner directs that it be held in another 
locale.
(8) All necessary parties shall be present at the hearing site unless it is 
conducted pursuant to GOP.65.02, sec.91. 32 of this title (relating to Level I 
Hearing by Telephone).
(9) The staff representative shall provide the youth with written notice of the 
date and time of the hearing not less than three working days before the 
scheduled date. This notice shall include:
(A) the reason(s) for the hearing;
(B) the proposed action to be taken; and
(C) the youth's rights in connection with the hearing.
(10) The staff representative shall make reasonable efforts to inform the 
youth's parent(s) of the date, time, and place of the hearing not less than 
three working days prior to the scheduled hearing date.
(11) The staff representative shall provide counsel for the youth with written 
notice of the date, time, and place of the hearing not less than three working 
days prior to the scheduled hearing date. The notice to counsel shall also 
include:
(A) the name, address, and telephone number of the staff representative and the 
hearings examiner;
(B) a list of all witnesses the staff representative intends to call;
(C) an indication of the expected testimony of each witness;
(D) copies of any statements made by the youth;
(E) copies of any statements, affidavits, reports, or other documentation relied 
upon as grounds for the proposed action; and
(F)  copies of any reports or summaries which will be relied upon at 
disposition.
(12) Requests for continuance or postponement shall be directed to the hearings 
examiner.
(13) If requested by counsel, the hearings examiner shall postpone the hearing 
for not more than 10 days following the date upon which counsel received notice 
of the hearing. The hearings examiner may grant a postponement for good cause at 
the request of any party.
(14) As soon as possible following receipt of the notice of hearing, and no 
later than the commencement of the hearing, counsel shall inform the staff 
representative of any witnesses he wishes to call on behalf of the youth. The 
staff representative will, if necessary, assist counsel in contacting those 
witnesses and securing their attendance at the hearing.
(15) The staff representative shall provide counsel for the youth with 
reasonable access to all information concerning the youth which is held by TYC. 
Counsel for the youth will respect the confidential nature of such information 
and will comply with reasonable requests to withhold sensitive information from 
the youth or his family.
(16) Prior to the hearing, the hearings examiner may review copies of any 
documentation previously provided to counsel except for those documents which 
relate solely to dispositional criteria. Such information shall be made 
available to the hearings examiner only if the hearing proceeds to disposition.
(17) If necessary, the hearings examiner may direct that a subpoena be issued to 
compel the attendance of a witness at the hearing or the production of books, 
records, papers, or other objects.
(A) Motions for subpoenas shall be addressed to the hearings examiner and shall 
state the name and address of the witness or specify the books, records, papers, 
or other objects desired and the material and relevant facts to be proved by 
them. If the matter of testimony sought is relevant, material, and necessary and 
will not result in harassment or undue inconvenience or expense, the hearing 
examiner shall direct the issuance of a subpoena.
(B) Subpoenas shall be issued only after a showing of good cause and deposit of 
sums sufficient to insure payment of expenses incident to the subpoenas. Payment 
of witness fees shall be in the manner prescribed in the Administrative 
Procedure and Texas Register Act, Texas Civil Statutes, Article 6252-13a,  
sec.14.
(18) A victim who appears as a witness should be provided a waiting area which 
eliminates or minimizes contact between the victim and the youth, the youth's 
family, or witnesses on behalf of the youth.
(19) To protect the confidential nature of the hearing, persons other than the 
youth, counsel for the youth, the staff representative, and the youth's 
parent(s) may be excluded from the hearing room at the discretion of the 
hearings examiner.
(A) Observers may be permitted with the consent of the youth.
(B) Any person except the youth and his counsel may be excluded from the hearing 
room if his or her presence causes undue disruption or delay of the hearing.
(20) The hearing shall be tape recorded and the hearings examiner shall retain 
copies of all documents admitted into evidence. Physical evidence may be 
retained at the discretion of the hearings examiner; if not retained, an 
adequate description of the item(s) shall be entered in the record by oral 
stipulation.
(21) Factual issues not in dispute may be stipulated to by the staff 
representative and counsel for the youth. Such stipulations shall be made on the 
record of the hearing.
(22) A youth accused of misconduct shall be given the opportunity to respond 
"true" or "not true" to each allegation of such conduct prior to any evidence 
being heard on such allegations.
(A) The youth shall have a right to respond "not true" to any such allegation 
and require that proof of the allegation be presented at the hearing.
(B) A response of "true" to any such allegation shall be sufficient to establish 
each and every element necessary to proof of that allegation without the 
presentation of any other evidence.
(23) All witnesses shall take an oath to testify truthfully.
(24) With the exception of the youth, any person designated as a witness may be 
excluded from the hearing room during the testimony of other witnesses and may 
be instructed to refrain from discussing his or her testimony with anyone until 
all the witnesses have been dismissed.
(25) The hearings examiner may question each witness at his discretion. Counsel 
for the youth and the staff representative shall be given an opportunity to 
question each witness.
(26) The hearings examiner may permit a witness to testify outside the presence 
of the youth if such appears reasonable and necessary to secure the testimony of 
the witness. If the youth is excluded from the hearing room during testimony, 
counsel for the youth shall be present during the testimony and shall have the 
opportunity to review the testimony with the youth before questioning the 
witness.
(27) The youth shall not be called as a witness unless, after consulting with 
counsel, he or she waives his right to remain silent on the record.
(A) The youth's failure to testify shall not create a presumption against him.
(B) A youth who waives his right to remain silent may only be questioned 
concerning those issues addressed by his testimony.
(28) All factual issues shall be determined by a preponderance of the evidence. 
"Preponderance of the evidence" means the greater weight and degree of credible 
evidence admitted at the hearing.
(29) The hearings examiner shall determine the admissibility of evidence. 
Irrelevant, immaterial, or unduly repetitious evidence shall be excluded.
(30) The rules of evidence will generally be those applicable to civil nonjury 
trials in the district courts of Texas. Unless specifically precluded by 
statute, evidence not admissible under those rules may be admitted if it is of a 
type commonly relied upon by reasonably prudent men in the conduct of their 
affairs.
(31) Copies of due process hearing documents received through the interstate 
compact administrator or document(s) admitted for purposes of classifying a 
youth need not be certified if such document(s) are part of the youth's 
record(s).
(32) Accomplice testimony is sufficient to prove an allegation if it is 
corroborated by other evidence tending to connect the youth with the alleged 
violation. The corroboration is not sufficient if it merely shows the commission 
of the violation alleged. If two accomplices testify, the testimony of each can 
serve to corroborate the other.
(33) Legally recognized privileges of relationships will be given effect.
(34) Evidence otherwise admissible may be received in written form if so doing 
will expedite the hearing and will not significantly prejudice the rights or 
interests of the youth.
(35) A youth's written statement concerning his possible involvement in illegal 
activities is admissible if it is signed by the youth and accompanied by 
evidence indicating that the youth made the statement voluntarily after being 
advised of:
(A) his right to remain silent;
(B) the possible consequences of giving the statement;
(C) his right to consult with an attorney prior to giving the statement; and
(D) his right to have an attorney provided for him if he is indigent.
(36) A youth's oral statement is admissible only if it relates facts which are 
found to be true and which tend to establish the youth's involvement in illegal 
activities.
(37) The hearings examiner shall rule immediately on any motions or objections 
made in the course of the hearing. All such motions, objections, and rulings 
shall be included in the hearings examiner's written report.
(38) The hearings examiner may, for good cause, recess or continue the hearing 
for such period(s) of time as may be necessary to insure an informed and 
accurate fact-finding.
(39) Following the presentation of all evidence pertaining to the factual issues 
raised at the hearing, the hearings examiner shall announce his findings as to 
those issues.
(A) When the fact-finding concerns an allegation of criminal conduct, the 
hearings examiner may find that the evidence suffices to prove an offense other 
than that originally alleged and enter the appropriate allegation in the record 
if the original allegation gave sufficient notice of the offense proved.
(B) Irrespective of the evidence, the hearings examiner may not find a criminal 
offense more serious than that originally alleged unless the original allegation 
has been amended on the record and after notice to counsel for the youth.
(C) If the hearings examiner's findings require that disposition be made, the 
hearing shall proceed to disposition; if not, the hearing shall be adjourned 
with no change in the youth's status.
(40) The hearings examiner may receive additional evidence for purposes of 
disposition or, with the consent of all parties, may make a decision concerning 
disposition based upon the evidence already in the record.
(41) Following announcement of the decision as to disposition, the hearings 
examiner shall inform the youth of his right to appeal any or all findings and 
decision made at the hearing
(42) Immediately following the close of a hearing, the hearings examiner shall 
give youth a copy of the Hearing Examiner's Report of a Level I Hearing (CCF-
160).
(43) A notice of appeal or request for a rehearing shall not suspend 
implementation of the hearings examiner's decision(s), which shall be effective 
when announced at the hearing.
(44) As soon as possible following the conclusion of the hearing, the hearings 
examiner shall prepare a written report which shall include:
(A) a summary of the evidence presented;
(B) findings of fact, including the reliability of the evidence and the 
credibility of the witnesses, and the reasons for those findings;
(C) conclusions of law;
(D)  an explanation of the dispositional decision; and
(E) rulings made on motions and objections and the reasons therefor.
(45) Copies of the hearings examiner's report shall be provided to counsel for 
the youth and the staff representative.
(46) An edited copy of the hearings examiner's report is given to the youth.
(47) A copy of the hearings examiner's report is placed in the masterfile only 
if the allegations are found. If allegations are not found, all references to 
the disciplinary actions are removed from the youth's masterfile.
(48) All Level I hearings and dispositions are reviewed by the director of legal 
services to assure conformity with policy and procedures.
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 May 1, 1992.
TRD-9206087
Ron Jackson
Executive Director
Texas Youth Commission
Effective date: May 25, 1992
Proposal publication date: March 31, 1992
For further information, please call: (512) 483-5244
       
TITLE 40. SOCIAL SERVICES AND ASSISTANCE
Part I. Texas Department of Human Services
Chapter 49. Child Protective Services
Subchapter P. Preparation for Adult Living
40 TAC sec.49. 1601
The Texas Department of Human Services adopts an amendment to sec.49.1601 
,concerning required services, without changes to the proposed text as published 
in the March 17, 1992, issue of the Texas Register (17 TexReg 2004).
This amendment is justified because it ensures that older teenagers in 
substitute care will receive appropriate services to prepare them for adulthood 
by requiring staff to conduct timely assessments of their readiness to live 
independently.
The amendment will function by ensuring that staff have enough time to conduct 
initial assessments of the readiness of Preparation for Adult Living Program 
participants to live independently. The amendment allows eight weeks to complete 
the assessment after a participant turns 16 years old.
No comments were received regarding adoption of the amendment.
The amendment is adopted under the Human Resources Code, Title 2, Chapter 22, 
which authorizes the department to administer public assistance programs. The 
amendment is also adopted under the Texas Family Code, Title 2, Chapter 34, 
which authorizes the department to provide services to alleviate the effects of 
child abuse and neglect.
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 May 1, 1992.
TRD-9206066
Nancy Murphy
Agency liaison, Policy and Document Support
Texas Department of Human Services
Effective date: June 1, 1992
Proposal publication date: March 17, 1992
For further information, please call: (512) 450-3765
       
Chapter 85. General Licensing Procedures
Subchapter U. Day Care Licensing Procedures
40 TAC sec.85. 2033
The Texas Department of Human Services adopts an amendment to sec.85.2033, 
concerning registration, without changes to the proposed text as published in 
the March 20, 1992, issue of the Texas Register (17 TexReg 2118).
The amendment is justified because parents who use child care will be able to 
place their children in legally operated family homes that are registered and 
therefore in compliance with the law.
The amendment will function by permitting the issuance of temporary registration 
of the family day care home. The issuance of the temporary registration allows 
extra time to correct minor deficiencies while the day care home continues to 
care for children within the law.
No comments were received regarding adoption of the amendment.
The amendment is adopted under the Human Resources Code, Title 2, Chapter 22, 
which authorizes the department to administer public assistance programs, and 
Chapter 42, which authorizes the department to administer general child care and 
child-placing licensing programs.
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 May 1, 1992.
TRD-9206067
Nancy Murphy
Agency liaison, Policy and Document Support
Texas Department of Human Services
Effective date: June 15, 1992
Proposal publication date: March 20, 1992
For further information, please call: (512) 450-3765
       
Part III. Texas Commission on Alcohol and Drug Abuse
Chapter 151. Licensure
General Provisions
40 TAC sec.151.19
The Texas Commission on Alcohol and Drug Abuse adopts an amendment to 
sec.151.19, concerning general provisions, without changes to the proposed text 
as published in the January 3, 1992, issue of the Texas Register (17 TexReg 39).
The amendment is adopted to further define areas relating to client rights as 
addressed under the definition of informed consent and to address definitions 
affected by changes in law regarding licensed chemical dependency counselors as 
indicated under qualified credentialed professional.
The amendment is adopted as a result of the commission's commitment to protect 
the health, safety, and welfare of clients. The amendment strengthens and 
clarifies provisions that protect the rights of clients receiving chemical 
dependency treatment in facilities licensed by the commission.
No comments were received regarding adoption of the amendment.
The amendment is adopted under the Texas Health and Safety Code, Title 6, 
Subtitle B, Chapter 464, which provides the Texas Commission on Alcohol and Drug 
Abuse with the authority to establish procedures and standards for the licensure 
of chemical dependency treatment facilities.
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 May 1, 1992.
TRD-9206058
Bob Dickson
Executive Director
Texas Commission on Alcohol and Drug Abuse
Effective date: May 22, 1992
Proposal publication date: January 3, 1992
For further information, please call: (512) 867-8720
       
Licensure Standards
40 TAC sec.sec.151.61, 151.64, 151.65, 151.68, 151.69, 151.72, 151. 73
The Texas Commission on Alcohol and Drug Abuse adopts amendments to sec.sec.151. 
61, 151.64, 151.65, 151.68, 151.69, 151.72, and 151.73. Sections 151.61, 151.64, 
151.65, 151.68, 151.69, and 151.72 are adopted with changes to the proposed text 
as published in the January 3, 1992, issue of the Texas Register (17 TexReg 40). 
Sections 151.65 and 151.73 are adopted without changes and will not be 
republished.
These amendments are adopted to further clarify sections pertaining to the 
reporting of violations of the law and to clarify provisions that protect the 
rights of clients receiving chemical dependency treatment in facilities licensed 
by the commission. Changes occur in the facility organization section to clarify 
process for reporting violations of the law and to set time frames. The 
personnel and staff development section was revised to further clarify 
verification procedures for personnel file documentation. Clarification was also 
provided in the client abuse, neglect, and exploitation section to expand on 
procedures for reporting abuse of persons who are not clients. The client rights 
section was also amended to insure clients are appropriately provided client 
rights documentation on various occasions if circumstances are not conducive to 
an understanding. The admission and discharge section was amended to expand the 
information required to be included in agreements between facilities and other 
entities to further ensure no payment for referrals occur. Also in this section, 
changes were made to insure qualified staff make clinical assessments and 
clients are not forcibly restrained and procedures to follow if a client refuses 
to provide a written request for discharge.
These amendments are adopted as a result of the commission's commitment to 
protect the health, safety, and welfare of clients. These amendments strengthen 
and clarify provisions that protect the rights of clients receiving chemical 
dependency treatment in facilities licensed by the commission.
Comments accepted and incorporated into these standards include comments 
received regarding facility organization suggesting further clarification on 
process and time frame for reporting of violations of law. A suggestion was made 
regarding the section on admission and discharge addressing payment for referral 
to include charges for services and to include all services rather than similar 
services related to the referral and admission process. Numerous staff comments 
were received as a result of input from the field which affected 
sec.151.64(c)(2) by clarifying procedures for verifying staff credentials for 
personnel files, sec.151.68(3) regarding procedures for reporting abuse of 
individuals who are not clients, and sec.151.69(a)-(c) to ensure clients have a 
thorough understanding of client rights.
Two comments received regarding the client abuse, neglect, and exploitation 
section and the client rights section were declined.
The names of groups and ascociations making comments for and against the section 
are as follows. For: The Center For Health Care Services; Ocford Counseling; 
Cenikor Foundation. Against: The Center for Health Care Services; The Bridge; 
Texas Chemical Dependency Association Inc.
The suggestion to define elderly or disabled in sec.151.68 was declined because 
these terms are defined in the Human Resources Code. A second comment declined 
included a concern regarding documentation not provided in client's primary 
language in  sec.151.69 because the standard is designed to ensure essential 
information is available at the time of admission for clients who do not speak 
English as their primary language.
The amendments are adopted under the Texas Health and Safety Code, Title 6, 
Subtitle B, Chapter 464, which provides the Texas Commission on Alcohol and Drug 
Abuse with the authority to establish procedures by which the commission is to 
license chemical dependency treatment facilities.
sec.151.61. Facility Organization.
(a) (No change.)
(b) Facilities shall report all violations of the laws, rules, or standards that 
govern chemical dependency treatment to the commission when such violations pose 
a significant threat to the health, safety, well-being, or rights of chemical 
dependency clients. This includes the provision of chemical dependency treatment 
without a license.
(1) The facility director or designee shall make a verbal report within 24 hours 
of the time the facility becomes aware of the violation. If this occurs on a 
weekend or holiday, the verbal report must be made immediately on the next 
business day.
(2)  Written notification must also be submitted within two working days of the 
time the facility becomes aware of the violation.
(c) The facility has a governing authority that is responsible for and has 
authority over the facility's policies, services, and operations.
(d) The facility has a written program description approved by the governing 
authority that includes:
(1) program purpose or mission statement;
(2) services provided;
(3) general description of individuals to be served.
(e) All policies are approved by the governing authority.
(f)  There are written policies, procedures, or other forms of documentation to 
substantiate compliance with all licensure standards.
(g) There is documentation that the facility informs staff of changes to written 
policies and procedures.
sec.151.64. Personnel and Staff Development.
(a)-(b) (No change. )
(c) All positions are filled by individuals who meet minimum qualifications 
specified in the job description.
(1) The facility shall maintain a personnel file for each employee which 
contains an application or resume that clearly documents required education, 
training, and related work experience.
(2) The personnel file shall contain documentation that the facility has 
verified the current status of all professional credentials required by the job 
description directly with the credentialing authority.
(A) Originals or photocopies of certificates may not be accepted without phone 
verification.
(B) Status must be reverified when a credential expires or requires renewal.
(d)-(p) (No change.)
sec.151.68. Client Abuse, Neglect, and Exploitation.
(a) (No change.)
(b) There is a written procedure that ensures compliance with the following 
standards:
(1) (No change.)
(2) The facility director or designee must make a verbal report to the Texas 
Commission on Alcohol and Drug Abuse within 24 hours. If the incident occurs on 
a weekend or holiday, the report must be made immediately on the next business 
day.
(A)  In accordance with the Texas Human Resources Code, sec.458.36, the report 
shall identify clients who are elderly or disabled.
(B) In accordance with the Texas Family Code, sec.34.01, the report shall 
identify clients who are adolescents.
(3) If the facility has cause to believe that a child who is not a client has 
been abused or neglected, the facility shall make an oral report to the 
Department of Human Services or local law enforcement within 48 hours as 
described in Texas Family Code, sec.34.01. The facility is not required to 
report such incidents to the commission or to follow the procedures for client 
abuse described in this section.
(4)-(9) (No change.)
(10)  Failure to comply with these requirements shall be grounds for revocation 
of a facility's license.
sec.151.69. Client Rights.
(a) (No change.)
(b) If, owing to the client's condition at the time of admission, the client 
does not appear to understand the client rights document or the explanation, 
staff must periodically give the client another written copy and another 
explanation of the client rights when the client has the ability to understand. 
The necessity for repeating the rights communication process shall be documented 
in the client record, signed, and dated by staff. Upon request, staff shall 
provide an explanation of client rights at any time throughout the span of 
treatment.
(c) Client rights are written in clear, simple language, appropriate to the 
client population.
(1) If the facility serves clients who do not speak English as their primary 
language, translations of the client rights policy and the client grievance 
procedure written in the clients' primary language shall be given to each such 
client.
(2) If the facility serves clients who do not speak English as their primary 
language, the client rights policy, the client grievance procedure, and the 
commission's complaint notification form shall be posted both in English and in 
the clients' primary language at each program site.
(d)-(j) (No change.)
sec.151.72. Admission and Discharge.
(a) Payment for a referral is prohibited.
(1)-(2) (No change.)
(3) A facility licensed by the commission shall not refer to or accept referrals 
from any entity or individual who offers or accepts payment for referral.
(4) Any facility having an agreement with another entity or individual to 
provide marketing, screening, intervention, transportation, aftercare, or any 
other service related to the admission, referral, or treatment process shall 
document the agreement in writing and maintain copies at the facility for 
inspection. The agreement must include a specific description of the service to 
be provided and all fees and other forms of compensation to be paid. Payments 
shall be made only for actual services performed.
(b) The facility provides only those categories of service for which it is 
licensed.
(1) A facility shall not advertise or purport to offer any type of chemical 
dependency treatment unless it is licensed to provide the specified category of 
service.
(2) A facility shall not engage in false, misleading, or deceptive advertising.
(c)-(m) (No change.)
(n) If a voluntary client or a voluntary client's legal consenter requests 
discharge, the facility shall explain the process for requesting release and 
give the client or consenter the opportunity to request release in writing. 
Verbal requests shall be treated as written requests and shall be immediately 
reduced to writing by staff. When a request for release is documented, signed, 
or presented to a staff member, the staff member shall sign the request and 
record the date and time. The refusal or inability of the client or the 
consenter to sign, a request for discharge shall be documented on the unsigned 
written request. Whether or not the client or legal consenter signs the request 
for discharge, the facility shall provide a full explanation of the procedures 
involved and shall take action in accordance with these standards. When 
applicable, the facility shall inform the client and the legal consenter that 
pursuant to state law, the facility may require a 24-hour period in which to 
observe the client to evaluate the clinical appropriateness of seeking an 
involuntary commitment to services.
(1) If there is no reason to believe the client poses a substantial risk of harm 
to self or others, the facility shall release the client immediately.
(2) If there is reason to believe the client poses substantial risk of harm to 
self or others, the facility shall take steps to protect the client and other 
individuals at risk.
(A) Facilities that are not approved by the commission to accept emergency 
detentions or court commitments shall contact local law enforcement to initiate 
an emergency detention.
(B) Facilities that are approved by the commission to accept emergency 
detentions or court commitments shall follow the procedures outlined in 
paragraph (3) of this subsection.
(C) A facility shall not use restraint or seclusion to detain a client unless 
the facility has been approved to use them by the commission. A facility using 
restraint or seclusion to detain a client must comply with all standards 
contained in sec.151.66 of this title (relating to Crisis Intervention).
(3)  If a request for release is denied then, as soon as possible, but no more 
than 24 hours after receipt of the request for release, the client shall be 
examined face-to-face by a licensed physician and assessed for discharge 
readiness, with input from other staff participating in the client's treatment.
(A) If, in the physician's clinical judgment, the client does not meet the 
criteria for court-ordered treatment, the facility must discharge the client 
immediately.
(B) If, in the physician's clinical judgment, the client meets the criteria for 
court-ordered treatment, the physician must execute a certificate of medical 
examination within 24 hours of the patient's request for discharge and inform 
the client of the intent to seek an involuntary commitment. The physician must 
also inform the legal consenter of any client under 16 and the family of any an 
adult client who authorizes such notification.
(C) A client must not be detained unless the facility uses the additional time 
to facilitate the commitment process.
(D) A facility must discharge a client immediately when the client no longer 
meets the criteria for court-ordered treatment.
(4) In the case of a minor client who is not authorized to give legal consent, 
the consent of the parent or legal guardian is required to discharge the client.
(5) Statements or actions intended to influence a voluntary client's decision to 
request discharge which are unjustified by the client's condition are 
prohibited. Allegations will be considered and investigated as potential abuse, 
and substantiated allegations will be grounds for licensure review and possible 
revocation.
(6) The following information shall be maintained in the client record:
(A) the written request for discharge;
(B) in the case of a minor not authorized to give consent, the consent or 
refusal of the parent or legal guardian; and
(C) the facility's response to the request, including clinical justification if 
the client is not immediately discharged.
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 May 1, 1992.
TRD-9206059
Bob Dickson
Executive Director
Texas Commission on Alcohol and Drug Abuse
Effective date: May 22, 1992
Proposal publication date: January 3, 1992
For further information, please call: (512) 867-8720