Proposed Sections 
 Before an agency may permanently adopt a new or amended section, or repeal an 
existing section, a proposal detailing the action must be published in the Texas 
Register at least 30 days before any action may be taken. The 30-day time period 
gives interested persons an opportunity to review and make oral or written 
comments on the section. Also, in the case of substantive sections, a public 
hearing must be granted if requested by at least 25 persons, a governmental 
subdivision or agency, or an association having at least 25 members. 
 Symbology in proposed amendments. New language added to an existing section is 
indicated by the use of bold text. [Brackets] indicate deletion of existing 
material within a section. 
 
   
  TITLE 4. AGRICULTURE 
 Part I. Texas Department of Agriculture 
  Chapter 11. Herbicide Regulations 
  
  4 TAC sec.sec.11.3-11.10 
 
  The Texas Department of Agriculture (the department) proposes amendments to 
sec.11.3 and sec.11.6 and new sec.sec.11.4, 11.5 and 11.7-11.10 concerning 
general requirements for application of regulated herbicides. The department, in 
a separate submission, is proposing the repeal of sec.sec.11.4, 11.5 and 11. 7-
11.10 and is replacing those sections with the new sections included in this 
submission. The amendments and new sections are proposed to clarify provisions 
relating to the application of regulated herbicides, licensing requirements for 
dealers of regulated herbicides, and requirements for inspection and licensing 
of application equipment used to apply regulated herbicides. In addition, new 
sec.11.4 provides definitions to be used in Chapter 11; new sec.11. 7 provides 
new recordkeeping requirements for dealers which are consistent with the 
requirements for pesticide dealers and eliminates the monthly reporting 
requirement for dealers; new sec.11.8 changes the permit fee for applying 
regulated herbicides from $.10 per acre to $1.00 per 100 acres; and new sec.11.9 
adds requirements for special county provisions. 
 Steve Bearden, assistant commissioner for pesticide programs, has determined 
that for the first five-year period the sections will be in effect there will be 
fiscal implications to state government as a result of enforcing or 
administering the sections. The effect on state government for the first five-
year period the sections will be in effect will be an estimated reduction in 
cost of $39,000 per year and an estimated loss in revenue of $48,000 per year, 
for a net loss of $9,000 per year. There will be no fiscal implications for 
local government or for local employment as a result of enforcing or 
administering the sections. There will be a reduction in cost of compliance for 
both small and large businesses due to a 90% reduction in the spray permit fee 
and the elimination of the monthly reporting requirement for herbicide dealers. 
 Mr. Bearden also has determined that for each of the first five years the 
sections as proposed are in effect the public benefits anticipated as a result 
of enforcing the sections will be a more effective and efficient use of 
resources to enforce provisions of the sections, and assurance that regulated 
herbicides are distributed and used in a manner to prevent hazards to desirable 
vegetation and the public through uncontrolled use. The anticipated economic 
cost to persons who are required to comply with the sections as proposed will be 
a 90% reduction in the cost of spray permits for the first five years for 
individuals making applications of regulated herbicides. 
 Comments on the proposal may be submitted to Steve Bearden, Assistant 
Commissioner for Pesticide Programs, Texas Department of Agriculture, P.O. Box 
12847, Austin, Texas 78711. Comments must be received no later than 30 days from 
the date of the publication of the proposal in the Texas Register . The 
department plans to hold public hearings to receive public comment on the 
proposal. Notice of these hearings will be published in the  Texas Register. 
 The amendments and new sections are proposed under the Texas Agriculture Code, 
sec.74.004, which provides the department with the authority to set by rule and 
collect a fee for a herbicide dealers license; sec.75.005, which authorizes the 
department to adopt rules prescribing information to be requested of dealers and 
allows the department to request submission of such records by a licensee; 
sec.75.006, which authorizes the department to set the cost of spray permit fees 
and to allow exemptions from the permit requirement and payment of permit fees; 
sec.75.012, which authorizes the department to adopt rules for the application 
of regulated herbicides; sec.75.013, which authorizes the department to adopt 
rules prescribing the information to be kept by applicators; sec.75.014, which 
authorizes the department to require a showing of proof of financial 
responsibility by commercial applicators; sec.75. 016, which authorizes the 
department to collect a fee for inspection and licensing of application 
equipment; sec.75.017, which authorizes the department to regulate the use of 
application equipment; and sec.75.018, which authorizes the department to 
consider requests for the revision of a rule, exemption from a requirement of 
Chapter 75, or prohibition of the spraying of a regulated herbicide in an area, 
and to adopt rules regarding such requests, as appropriate. 
 
 
  sec.11.3. Special Provisions for the Ground Application of Dicamba.  All 
persons must comply with the <nl>Texas Agriculture Code, Chapter 75, as 
amended,<ol> [Herbicide Law] and these regulations in the use and sale of 
dicamba. However, when using boom-type ground spray equipment with nozzle height 
not exceeding 24 inches and maximum pressure not exceeding 20 pounds per square 
inch, applications may be made within the following distances from susceptible 
crops, in lieu of the distances and wind speeds outlined in sec.11. 6 [(e)(5)] 
of this title (relating to General Requirements of These Regulations). 
 
  [graphic] 
     
  
  sec.11.4. Definitions.  The following words and terms, when used in this 
chapter, shall have the following meanings, unless the context clearly indicates 
otherwise. 
   
   Applicator-An applier of regulated herbicides; any person applying regulated 
herbicides in this state by aircraft, ground, or hand spraying equipment who has 
been licensed or certified in accordance with the Texas Agriculture Code, 
Chapter 76, and regulations adopted thereunder. 
   
   Commercial applicator -A custom applier; an applicator of regulated 
herbicides licensed in accordance with the requirements of the Texas Agriculture 
Code, sec.76.108 and sec.7.13 of this title (relating to Commercial Applicator 
License.) 
   
   Commissioner-The commissioner of agriculture of the State of Texas, or his 
designee. 
   
   Dealer-Any person who sells, wholesales, distributes, offers or exposes for 
sale, exchanges, barters or gives away within or into this state any regulated 
herbicides in a container having a net capacity of more than 16 fluid ounces, 
unless such container has a net capacity of less than one gallon, contains a 
substance with a concentration of regulated herbicides not exceeding 10% by 
volume, and bears a label with the statement "for lawn use only". 
   
   Department-Texas Department of Agriculture. 
   
   Equipment-Any type of ground, aquatic, or aerial equipment or device 
employing motorized, mechanical, or pressurized power and used to apply a 
regulated herbicide to land or to anything that may be inhabiting or growing on 
the land. The term does not include a pressurized hand-sized apparatus used to 
apply a regulated herbicide or any equipment or device for which the person 
applying the regulated herbicide is the source of power or energy used in making 
the application. 
   
   Formulation-The mixture of active and inert ingredients for practical use as 
a pesticide, such as wettable powder, granular and emulsifiable concentrate. 
   
   Person-Any individual, firm, partnership, association, corporation, company, 
joint stock association, or body politic, or any organized group of persons 
whether incorporated or not, including any trustee, receiver, assignee, or 
similar representative thereof. 
   
   Pesticide-A substance or mixture of substances intended to prevent, destroy, 
repel, or mitigate any pest, including but not limited to fungicides, 
herbicides, insecticides, nematocides, rodenticides, desiccants, defoliants, or 
plant growth regulators. 
   
   Regulated herbicide -All herbicide products containing the active ingredients 
2,4-dichlorophenoxyacetic acid (2,4-D), 2,4, 5-trichlorophenoxyacetic acid 
(2,4,5-T), 2-methyl-4-chlorophenoxyacetic acid (MCPA), 2-(2,4,5-
trichlorophenoxy) propionic acid (Silvex), polychlorinated benzoic acids, either 
alone or in mixtures, and such other substances used for weed control as the 
commissioner shall from time to time determine after public hearing present a 
hazard to desirable vegetation through drift or other uncontrolled applications. 
   
   Volatility-The tendency of a substance to change from a liquid or solid to a 
gaseous state. It is the movement of a pesticide in a gaseous state in the air 
from surface water, soil, or vegetation. For example, the volatility of 
different types of regulated herbicides under comparable environmental 
conditions is as follows: 
 
  (A) sodium and ammonium salts. These are generally not considered as volatile, 
and are usually water-soluble. The ammonium salts are rarely found on the market 
while the sodium salts are marketed for use by homeowners and on asparagus; 
   
  (B) amine salts. These are generally not considered as volatile. The 
alkylamines include monomethylamine, dimethylamine, isopropylamine, 
triethylamine, and others. The alkylanolamines include diethanolamine, 
triethanolamine, and mixed isopropanolamines; 
   
  (C) highly volatile esters. These include methyl, ethyl, butyl, isopropyl, 
octylamyl, and pentyl esters containing various concentrations expressed in 
pounds of acid equivalent per gallon; and 
   
  (D)  low-volatility esters. These contain esters that suppress volatility. 
Formulations include butoxyenthanl, propylene glycol, tetrahydrofurfuryl, 
propylene gycol butyl ether, butoxy propyl, ethylhexyl, and isooctyl ester. 
These contain various pounds of acid equivalent per gallon. 
     
   Weed-Any plant growing where not wanted. 
 
   
  sec.11.5. General Requirements of the Law. 
 
  (a) It shall be the joint responsibility of the person in control of the crop 
and, if applicable, the commercial applicator to insure that the application of 
regulated herbicides is made in compliance with the rules and regulations issued 
by the department. 
   
  (b) The application of regulated herbicides in dust form is prohibited unless: 
 
  (1) all particles of the herbicide can pass through a United States standard 
10-mesh sieve; and 
   
  (2) not more than 1.0% of the particles can pass through a United States 
standard 60-mesh sieve. 
 
       
  sec.11.6. General Requirements of These Regulations. 
 
  (a)  Checks. All checks for license and permit fees  <nl>required by these 
regulations <ol> shall be made payable to the Texas Department of Agriculture. 
   
  (b) <nl>Regulated<ol> [Hormone-type] herbicides. Applications of  
<nl>regulated<ol> [hormone-type] herbicides by brush, mop, <nl>wick, basal 
treatment, <ol> or injection method are hereby exempt from the requirements of 
obtaining a permit <nl>and fee payment<ol> [,paying a permit fee, and keeping 
records of such application]. 
   
  (c) Expiration of permits and licenses. 
 
  (1) All permits expire when the acreage for which the permit was granted has 
been sprayed, or [after] 180 days  <nl>after issuance,<ol> [or on December 31,] 
whichever occurs first. 
   
  (2) All [herbicide] dealer licenses <nl>issued in accordance with these 
regulations<ol> shall expire on January 1 of each year. 
     
  (d) Specification of equipment. 
 
  (1)  <nl>Equipment must be maintained in a condition capable of applying the 
regulated herbicide as the label specifies in a manner that will provide safe 
and proper application of the regulated herbicide. <ol> [Equipment must be 
equipped with a screen of fine enough mesh to remove all foreign materials from 
the spray solution, provided, however, in lieu of a screen in the equipment all 
spray may be screened through such a screen before being put into the 
equipment.] 
   
  (2) <nl>For commercial applicators, the following shall apply. 
 
  <nl>(A) All application equipment used by commercial applicators must be 
registered with the department. The department shall issue to the licensee a 
decal to be attached in a conspicuous place to each such piece of equipment. The 
decal shall contain the following information: 
 
  <nl>(i)<nl> an identification number; and 
   
  <nl>(ii)<nl> the name of the department. 
     
  <nl>(B) The licensee shall notify the department of any equipment changes and 
remove the decal before giving up possession of the equipment. 
   
  <nl>(C) All application equipment used bY commercial applicators is subject to 
inspection by the department at any reasonable time. Such equipment must be 
maintained in a condition that will provide safe and proper application of the 
regulated herbicide. If the inspector finds that it is not, the inspector shall 
require the needed repairs or adjustments before allowing the use of such 
equipment. <ol> [Hose and hose connections shall be made of such material and so 
constructed as to eliminate all possible leakage.] 
     
  (3) A positive cut-off valve shall be installed between the <nl>herbicide 
holding<ol> tank and the <nl>pump to Permit the person making the application to 
instantly stop the flow of herbicide<ol> [outlets and each outlet shall have a 
positive cut-off valve]. 
     
  (e) Requirements for spray operations. All spraying of <nl>regulated<ol> 
[hormone-type] herbicides must conform to these requirements <nl>in a regulated 
county<ol>regardless of whether or not a permit is required. 
 
  [(1) Wind gauge. An accurate wind gauge shall be at the place of spraying 
during such spraying.] 
   
  <nl>(1)<ol>[(2)]  Maximum velocity. No person shall spray <nl>regulated<ol> 
herbicides when the wind velocity exceeds 10 miles per hour <nl>or as specified 
on the product label, if the label is more restrictive. 
   
  <nl>(2)<ol>[(3)]  Maximum pressure for <nl>aerial <ol> [aircraft] equipment. 
It is unlawful for a person to spray <nl>regulated <ol> [hormone-type] 
herbicides with <nl>aerial<ol> [aircraft] <nl>application<ol> equipment at an 
outlet pressure which exceeds 30 pounds per square inch. [As an alternative to 
the maximum pressure listed in this paragraph, the equipment may be so regulated 
to give not less than a 200-micron-size droplet.] 
   
  <nl>(3)<ol>[(4)]  Maximum pressure for ground equipment. It is unlawful for a 
person to spray <nl>regulated <ol> [hormone-type] herbicides with ground 
equipment <nl>when the equipment<ol> [at an] outlet pressure [which] exceeds 40 
pounds per square inch. As an alternative to the maximum pressure listed in this 
paragraph, a canopy can be installed over the boom so as to keep spray materials 
from drifting. 
   
  <nl>(4)<ol>[(5)] <nl>Distance requirements for application of regulated 
herbicides.<ol> [Type and concentration of herbicide.] Spraying with 
<nl>regulated <ol> [nonvolatile and low volatile] herbicides <nl>other than 
dicamba<ol> shall be done only under requirements of the following chart <nl>or 
as stated on the label, whichever is more restrictive<ol>: 
 
  [graphic] 
   
  <nl>(5)<ol>[(6)] High volatile herbicides. <nl>Spraying<ol> [The Spraying of] 
high volatile herbicides is prohibited when there are susceptible crops within a 
four mile radius <nl>from<ol> [of] every point <nl>of<ol> [from] the land to be 
sprayed. 
   
  <nl>(6)<ol>[(7)] Suspension. The limitations set forth in paragraphs 
<nl>(4)<ol> [(5)] and <nl>(5)<ol> [(6)] of this subsection may be suspended if 
the person spraying or the owner of the land or crop to be sprayed obtains 
written permission <nl>from <ol> [for] all owners of susceptible crops within 
the area protected by such limitations. They must file a copy of such written 
permission with the <nl>department<ol> [State Department of Agriculture] before 
[doing] the spraying  <nl>begins<ol>. 
   
  [(8) Height that spray may be released. All spray shall be released at a 
height not greater than 10 feet above the top of crop, weeds, or brush being 
treated.] 
 
       
  sec.11.7. Dealers. 
 
  (a) Requirements. Sales by retailers, distributors, wholesalers, warehouse 
agents, and manufacturers of regulated herbicides require the dealer to hold a 
valid dealer's license before any such sales are made. 
   
  (b) License. Any dealer distributing or selling regulated herbicides in this 
state, or out-of-state dealers distributing or selling regulated herbicides in 
this state, must have a dealer's license and report all sales, regardless of 
whether or not the regulated herbicides sold or distributed are to be used in a 
regulated or unregulated county. 
   
  (c)  Multiple business locations. In the event a person operates a business at 
more than one location in the state of Texas under the same firm name, a 
separate dealer's license shall be required for each location, unless the 
applicant's principal office keeps and reports satisfactory records for all 
subsidiary offices, in which case, the applicant shall pay one fee. 
   
  (d)  Sales records. All dealers are required to make and retain for a period 
of two years from the date of sale, a record of distribution or sale of 
regulated herbicides. Such records of each sale shall consist of the following 
information: 
 
  (1) the name, address, licensed or certified applicator number, or dealer 
license number of the person to whom the regulated herbicide was sold or 
delivered; 
   
  (2) the date of sale: 
   
  (3) the brand name, registration number, and manufacturer of the regulated 
herbicide; 
   
  (4) the quantity of regulated herbicide sold; and 
   
  (5) if the sale is made to a nonlicensed person acting under the authorization 
of a certified or licensed applicator: 
 
  (A) the name of the nonlicensed person to whom the regulated herbicide is made 
available and the address of the residence or principal place of business of 
that person as stated on a valid driver's license or other current state, 
county, or tribal identification document issued to the nonlicensed person; and 
   
  (B)  verification that the regulated herbicide is made available to a 
nonlicensed person. This verification shall be accomplished by a statement 
signed by the licensed or certified applicator that the nonlicensed person is 
the duly authorized representative of the licensed or certified applicator and 
that the regulated herbicide made available to the nonlicensed person will only 
be used by a certified or licensed applicator or under the direct supervision of 
the licensed applicator. This statement may be made on a form prescribed by the 
department. 
       
  (e) Sales record to the department. Upon written request by the department, a 
licensed dealer shall submit records of sales or distribution of regulated 
herbicides. 
   
  (f) Fees for a dealer's license. All dealers, as defined in sec.11.4 of this 
title (relating to Definitions), shall pay a fee of $100 upon submitting an 
application for a dealer's license. 
 
     
  sec.11.8. Applicators. 
 
  (a) General requirements. The following requirements are applicable to both 
commercial applicators and persons applying regulated herbicides to their own 
land or crops. 
 
  (1)  The use of any turbine or blower-type equipment to spray regulated 
herbicides is prohibited. 
   
  (2) The applicator (whether commercial or private applicator) shall keep the 
following records for a period of two years: 
 
  (A) the date and time of day of application; 
   
  (B) the name of the person for whom the application was made (owner or 
lessee); 
   
  (C)  the location of the land where the application was made, stated in a 
manner that would permit inspection by authorized parties; 
   
  (D) the regulated herbicide applied, including: 
 
  (i) product name; 
   
  (ii) its EPA registration number; 
   
  (iii) rate of product per unit; and 
   
  (iv) total volume of spray mix, dust, granules, or other materials applied per 
unit; 
     
  (E) the name of the pest for which it was used; 
   
  (F) the site treated (for example: name of crop, kind of animal, etc.); 
   
  (G) total acres treated; 
   
  (H)  climatological data, including but not limited to, wind direction and 
velocity and air temperature; 
   
  (I) the FAA "N" number of aerial application equipment, or identification 
number of other types of application equipment, or decal number affixed to the 
application unit; and 
   
  (J)  the name and department license number of the applicator, or if aerial 
application equipment is used, the name of the pilot-in-command. 
       
  (b)  Commercial applicators. 
 
  (1) Spray permits. No person shall apply regulated herbicides as a commercial 
applicator to a total of more than 10 acres in any one calendar year without 
first obtaining a permit for such application. A blanket permit may be issued to 
a licensed or certified applicator who shall submit to the department a 
supplemental report of each regulated herbicide application within seven days 
following such application. 
   
  (2) Permit fees. A permit fee for acreage intended to be sprayed shall be 
submitted with an application for a spraying permit. The permit fee shall be 
$1.00 for any amount of land up to 100 acres and an additional $1.00 for each 
increment of 100 acres, or fraction thereof. 
   
  (3) Government employee exemption. The provisions of paragraph (2) of this 
subsection do not apply to employees of governmental entities who apply 
regulated herbicides as part of their official duties. 
   
  (4) Equipment licensing and inspection. Equipment license decals must be kept 
with the equipment at all times that the equipment is used to spray regulated 
herbicides. 
 
  (A) Equipment license. All equipment used to spray regulated herbicides for 
hire must be licensed by the department before such equipment is used to spray 
regulated herbicides. A license will not be issued until proof of financial 
responsibility has been filed with the department as required by the Texas 
Agriculture Code, sec.75.014. 
   
  (B) Inspection. All ground equipment used to spray regulated herbicides for 
hire must be inspected by the department each year before the equipment is used. 
All equipment used on any aircraft in the application of regulated herbicides 
must be inspected every 30 days when installed upon said aircraft and must be 
inspected before use after reinstallation, if a period of less than 30 days has 
lapsed since the last inspection. An inspection fee of $20 for each piece of 
equipment shall be paid to the department upon each inspection. 
   
  (C) All persons engaged in the application of regulated herbicides for hire 
must be licensed by the department under sec.7.13 of this title (relating to 
Commercial Applicator License) and meet the requirements of financial 
responsibility under  s7.14 of this title (relating to Commercial Applicator 
Proof of Financial Responsibility) or of the Structural Pest Control Board as 
provided by the Structural Pest Control Act, Texas Civil Statutes, (Article 
135b-6). 
       
  (c)  Persons spraying their own land or crops. 
 
  (1) Permits. 
 
  (A)  Permits or fees are not required if a person does not spray a total of 
more than 10 acres during any one calendar year. 
   
  (B) All persons, except those applying to lawns, who apply regulated 
herbicides to less than 10 acres in any one calendar year must give notice of 
each application to the department prior to such application. 
     
  (2) Permit fees. Except as otherwise provided at paragraph (1) of this 
subsection, a permit fee of $1.00 for any amount of land up to 100 acres and an 
additional $1.00 for each increment of 100 acres, or fraction thereof, must be 
paid before a permit for spraying will be issued. 
   
  (3) Equipment used to spray own land or crops. Ground and hand spray equipment 
used by a person to spray his or her own land or crops need not be inspected, 
bonded or licensed. Aircraft equipment used by a person to spray his or her own 
land or crops must be inspected and licensed, but bonds are not required for the 
equipment or the person. 
 
       
  sec.11.9. Requirements for Special County Provisions. 
 
  (a) The department shall not accept for adoption any request for special 
county provisions which will, except as provided by and consistent with Chapter 
11 of this title (relating to Herbicide Regulations), either directly or 
indirectly: 
 
  (1) exempt applicators from obtaining spray permits, except during periods 
when susceptible vegetation is at a minimum; 
   
  (2) exempt applicators from record keeping requirements; 
   
  (3) exempt commercial applicators from requirements for proof of financial 
responsibility; 
   
  (4)  prohibit the sale of any herbicide; and/or 
   
  (5) require the department to inspect land prior to issuance of spray permits. 
     
  (b)  The department may consider for adoption a request by a county to: 
 
  (1) regulate or prohibit methods of application; 
   
  (2) prohibit application of any regulated herbicide during any period of the 
year; and/or 
   
  (3) exempt from the provisions of the Texas Agriculture Code, sec.sec.75. 006-
75.017, any portion of a county which can be identified by easily recognizable 
physical boundaries. 
 
       
  sec.11.10. Penalties.  Any person who commits an offense under the Texas 
Agriculture Code, Chapter 75, as amended, shall be guilty of a Class A 
misdemeanor. In addition, the Texas Agriculture Code, sec.76.1555, which 
provides for the assessment of administrative penalties, applies to a person who 
violates Chapter 75 or these regulations. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on October 30, 1992. 
 TRD-9214721 
  Dolores Alvarado Hibbs 
 Chief Administrative Law Judge 
 Texas Department of Agriculture 
    Earliest possible date of adoption: December 11, 1992 
 For further information, please call: (512) 463-7583 
         
         
  4 TAC sec.sec.11.4, 11.5, 11.7-11.10 
 
  (Editor's note: The text of the following sections proposed for repeal will 
not be published. The sections may be examined in the offices of the Texas 
Department of Agriculture or in the Texas Register office, Room 245, James Earl 
Rudder Building, 1019 Brazos Street, Austin.) 
   
  The Texas Department of Agriculture proposes the repeal of sec.sec.11.4, 11.5 
and 11.7-11.10 concerning general requirements for application of regulated 
herbicides. The department in a separate submission is proposing new sections to 
replace the sections repealed in this submission. The department proposes to 
repeal sec.sec.11.4, 11.5 and 11.7, 11.8, and 11.10 in order to replace these 
sections with new sections more clearly setting out requirements for application 
of regulated herbicides, licensing requirements for dealers of regulated 
herbicides and requirements for inspection and licensing of application 
equipment used to apply regulated herbicides. The department also proposes to 
repeal the sections in order to propose new sections that include new 
recordkeeping requirements and a change in the requirements for payment of spray 
permit fees. In addition, the repeal of sec.11.9 regarding the use of 
mistblowers for the application of 2,4,5-Trichlorophenoxyacetic acid (2,4,5-T) 
in pine timber stands is proposed in order to eliminate requirements that are no 
longer necessary. The herbicide 2,4,5-T is no longer registered for use in 
control of hardwoods in pine timber stands. 
 Steve Bearden, assistant commissioner for pesticide programs, has determined 
that for the first five-year period the repeal of the sections and enforcement 
and administration of the new replacement sections are in effect there will be 
fiscal implications for state government as a result of repealing the sections. 
The effect on state government for the first five-year period the repeal is in 
effect will be an estimated reduction in cost of $39, 000 per year and an 
estimated loss of revenue of $48,000 per year, for a net loss of $9,000 per 
year. The effect on small and large businesses will be a reduction in costs due 
to a 90% reduction in the cost of spray permits and the elimination of the 
monthly reporting requirements for herbicide dealers. There will be no fiscal 
implication for local government or for local employment as a result of 
repealing the sections. 
 Mr. Bearden has also determined that for each year of the first five years the 
repeal of the sections is in effect the public benefit anticipated as a result 
of repealing the sections will be a more effective and efficient use of 
resources to enforce the provisions of the new sections, and assurance that 
regulated herbicides are distributed and used in a manner to prevent hazards to 
desirable vegetation and the public through more controlled use. The anticipated 
economic cost to persons who are required to comply with the repeal as proposed 
will be a 90% reduction in the cost of spray permits for the first five years 
for individuals making applications of regulated herbicides. 
 Comments on the proposal may be submitted to Steve Bearden, Assistant 
Commissioner for Pesticide Programs, Texas Department of Agriculture, P.O. Box 
12847, Austin, Texas 78711. Comments must be received no later than 30 days from 
the date of the publication of the proposal in the Texas Register . The 
department plans to hold public hearings to receive public comment on the 
proposal. Notice of these hearings will be published in the  Texas Register. 
 The repeal of sec.sec.11.4, 11.5 and 11.7-11.10 is proposed under the Texas 
Agriculture Code, sec.74.004, which provides the department with the authority 
to set by rule and collect a fee for a herbicide dealers license; sec.75.005, 
which authorizes the department to adopt rules prescribing information to be 
requested of dealers and allows the department to request submission of such 
records by a licensee; sec.75.006, which authorizes the department to set the 
cost of spray permit fees and to allow exemptions from the permit requirement 
and payment of permit fees; sec.75.012, which authorizes the department to adopt 
rules for the application of regulated herbicides; sec.75.013, which authorizes 
the department to adopt rules prescribing the information to be kept by 
applicators; sec.75.014, which authorizes the department to require a showing of 
proof of financial responsibility by commercial applicators; sec.75. 016, which 
authorizes the department to collect a fee for inspection and licensing of 
application equipment; sec.75.017, which authorizes the department to regulate 
the use of application equipment; and sec.75.018, which authorizes the 
department to consider requests for the revision of a rule, exemption from a 
requirement of Chapter 75, or prohibition of the spraying of a regulated 
herbicide in an area, and to adopt rules regarding such requests, as 
appropriate. 
 
 
  sec.11.4. Definitions. 
 
   
  sec.11.5. General Requirements of the Law. 
 
   
  sec.11.7. Dealers. 
 
   
  sec.11.8. Appliers. 
 
   
  sec.11.9. Special Requirements for Mistblowers. 
 
   
  sec.11.10. Penalties. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on October 30, 1992. 
 TRD-9214720 
  Dolores Alvarado Hibbs 
 Chief Administrative Law Judge 
 Texas Department of Agriculture 
    Earliest possible date of adoption: December 11, 1992 
 For further information, please call: (512) 463-7583 
         
               
  TITLE 22. EXAMINING BOARDS 
 Part XIV. Texas Optometry Board 
  Chapter 280. Therapeutic Optometry 
  
  22 TAC sec.280.5 
 
  The Texas Optometry Board proposes an amendment to sec.280.5, concerning the 
prohibition of use of certain drugs/pharmaceutical agents used for treating 
glaucoma. The amendment is being proposed in order for the board to comply with 
Attorney General Opinion DM-152, issued on August 13, 1992. As the board 
understands the Opinion, it has elected to go beyond that directive and 
specifically list the names of the antiglaucoma drugs which cannot be prescribed 
by an optometrist or used in a manner that was not permitted by law on August 
31, 1991. 
 Lois Ewald, executive director, has determined that for the first five-year 
period the section is in effect there will be no fiscal implications for state 
or local government as a result of enforcing or administering the section. 
 Mr. Ewald also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be that the public will be informed of those drugs which an 
optometrist cannot prescribe. There will be no effect on small businesses. There 
is no anticipated economic cost to persons who are required to comply with the 
section as proposed. 
 Comments on the proposal may be submitted to Lois Ewald, Executive Director, 
Texas Optometry Board, 9101 Burnet Road, Suite 214, Austin, Texas 78758. 
 The amendment is proposed under Texas Civil Statutes, Article 4552, sec.2.14, 
which provide the Texas Optometry Board with the authority to promulgate 
substantive and procedural rules. 
 
 
  sec.280.5. <nl>Therapeutic Optometry [Prescriptions Written for Pharmaceutical 
Agents by the Therapeutic Optometrists]. 
 
  (a)-(g) (No change.) 
   
  <nl>(h) The following are those drugs which are classified as antiglaucoma 
drugs and may not be used in a manner that was not permitted by law on August 
31, 1991: 
 
  (A) Pilocarpine 1.0%-10%; 
   
  (B) Carbachol 0.75%-3.0%; 
   
  (C) Epinephrine 0.25%-2.0%; 
   
  (D) Dipivefrin 0.1%; 
   
  (E) Betaxolol 0.5%; 
   
  (F) Levobunolol 0.5%; 
   
  (G) Metipranolol 0.3%; 
   
  (H) Timolol 0.25%-0.5%; 
   
  (I) Physostigmine 0.25%-0.5%; 
   
  (J) Demecarium 0.125%-0.25%; 
   
  (K) Echothiophate 0.03%-0.25%; 
   
  (L) Isoflurophate 0.25%. 
     
  <nl>(i)<ol>[(h)] This formulary specifically lists the types of drugs which 
may be prescribed by a therapeutic optometrist. Subject to the antiglaucoma and 
antiviral limitations described in <nl>subsections <ol> [subsection] (g)  
<nl>and (h)<ol> of this section, a therapeutic optometrist may possess and 
administer any topical ocular pharmaceutical agent which has a legitimate 
diagnostic or therapeutic use. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on October 28, 1992. 
 TRD-9214631 
  Lois Ewald 
 Executive Director 
 Texas Optometry Board 
    Earliest possible date of adoption: December 11, 1992 
 For further information, please call: (512) 835-1938 
         
               Part XVIII. Texas State Board of Podiatry Examiners 
  Chapter 371. Examinations 
  
  22 TAC sec.sec.371.3, 371.6, 371.9, 371.14 
 
  The Texas State Board of Podiatry Examiners proposes amendments to 
sec.sec.371.3, 371.6, 371.9, and 371.14, concerning examinations. The section 
defines what a person must do to become a licensed podiatrist. Amendments are 
needed to list additional requirements. 
 D. Elliot Branson, executive director, has determined that for the first five-
year period the sections are in effect there will be no fiscal implications for 
state or local government as a result of enforcing or administering the 
sections. 
 Mr. Branson also has determined that for each year of the first five years the 
sections are in effect the public benefit anticipated as a result of enforcing 
the sections will be better clarity in the rules. There will be no effect on 
small businesses. There is no anticipated economic cost to persons who are 
required to comply with the sections as proposed. 
 Comments on the proposal may be submitted to Janie Alonzo, 3420 Executive 
Center Drive, Suite 305, Austin, Texas 78731, (512) 794-0145. 
 The amendments are proposed under Texas Civil Statutes, Articles 4568(j) and 
4590(e), which provide the State Board of Podiatry Examiners with the authority 
to adopt all reasonable or necessary rules, regulations, and by-laws not 
consistent with the law regulating the practice of podiatry, the laws of this 
state, or of the United States; to govern its proceedings and activities, the 
regulation of the practice of podiatry, and the enforcement of the law 
regulating the practice of podiatry. 
 
 
  sec.371.3. Qualifications of Applicants. 
 
  (a)-(c) (No change.) 
   
  <nl>(d) All applicants shall have successfully passed all sections of the 
National Board and provide their scores from the National Board to the Board of 
Examiners. 
   
  <nl>(e) If sec.371.6(d) of this title (relating to Time, Place, and Scope of 
Examinations) applies, and if the exam conducted by such delegated entity is 
divided into separately scored sections, all applicants shall have successfully 
passed all sections, as well as meeting or exceeding the cumulative pass score. 
Each applicant shall cause their test scores from such exam to be sent directly 
from the delegated entity to the board. 
   
  <nl>(f)<ol>[(d)] Every applicant shall have completed at least one year of 
satisfactory post-graduate training with a hospital, clinic, or institution 
acceptable to the board in a residency or internship program approved by the 
Council of Podiatric Medical Education of the American Podiatric Medical 
Association. Certified documentation of enrollment in said postgraduate training 
must accompany the application to the board for examination. Certified 
documentation of successful completion of said postgraduate training must 
accompany the application to the board for licensing. This subsection becomes 
effective at 12:01 a.m., July 1, 1995. 
   
  <nl>(g)<ol>[(e)] The board approves and adopts by reference the standards for 
accreditation of residency and internship programs adopted by the Council on 
Graduate Podiatric Medical Education of the American Podiatric Medical 
Association. The standards are available from the Texas State Board of Podiatry 
Examiners, 3420 Executive Center Drive, Suite 305, Austin, Texas 78731. The 
board considers any school of podiatric medicine accredited by the Council on 
Podiatric Medical Education of the American Podiatric Medical Association as a 
school approved by the board. 
   
  <nl>(h)<ol>[(f)] The applicant shall submit evidence sufficient for the 
secretary-treasurer of the board to determine that the applicant has met all the 
requirements of this section and any other information reasonably required by 
the board. Any application, diploma or certification, or other document required 
to be submitted to the board that is not in the English language must be 
accompanied by a certified translation thereof into English. 
   
  <nl>(i)<ol>[(g)] At the discretion of the board, the residency requirement set 
forth in subsection <nl>(f) <ol> [(d)] of this section (relating to 
Qualification of Applicant) may be waived if the applicant has been in active 
podiatric practice for at least five continuous years in another state under 
license of that state, and upon application to the board can show an acceptable 
record from that state and from all other states under which the applicant has 
ever been licensed. This subsection expires by operation of law at midnight on 
December 31, 1995. 
 
  (1) A showing of an acceptable record under this subsection of this section is 
defined to include, but is not limited to, a showing that the applicant has not 
had entered against him a judgment, civil or criminal, in state or federal court 
or other judicial forum, on a podiatry-related or medical-related cause of 
action, and no conviction of a felony or a crime of moral turpitude, and no 
disciplinary action recorded from any medical institution or agency or 
organization, including, but not limited to, any licensing board, hospital, 
surgery center, clinic, professional organization, governmental health 
organization or extended-care facility, and no dishonorable discharge from 
military service. 
   
  (2) If any judgment or disciplinary determination under this subsection has 
been, on appeal, reversed, reversed and rendered, or remanded and later 
dismissed, or in any other way concluded in favor of the applicant, it shall be 
the applicant's responsibility to bring such result to the notice of the board 
by way of certified letter along with any such explanation of the circumstances 
as the applicant deems pertinent to the board's determination of admittance to 
licensure in the State of Texas. 
   
  (3) The applicant shall obtain and submit to the board a letter from any and 
all state boards under which he or she has ever been previously licensed stating 
that the applicant is a licensee in good standing with each said board or that 
said prior license or licenses were terminated or expired with the licensee in 
good standing. 
 
       
  sec.371.6. Time, Place, and Scope of Examinations. 
 
  (a)-(d)  (No change.) 
   
  (e) At the option and in the complete discretion of the board, the examination 
may be conducted, in whole or in part, upon a vote of a majority of the board, 
to any school, institute, or organization that is deemed by the same majority of 
the board to provide adequate and fair examinations of sufficient high standards 
as to continue to insure high-quality practitioners in the State of Texas. The 
manner of examination, the time of examination and the scheduling of the 
examination, as well as fee requirements and grading operations may then be 
delegated by the board to <nl>such an entity <ol> [said school, institute, or 
organization], provided, however, that examination results, grades, and copies 
of the examination are <nl>made<ol> available to the board <nl>and are sent 
directly from the delegated entity to the board<ol> [upon request by the board], 
and the board is to maintain a record of the examination results. <nl>Unless 
special dispensation is granted by the board, applicants must take and pass all 
delegated parts of the licensing examination before taking any part of the 
examination conducted by the board. 
 
     
  sec.371.9. Grade Requirements. 
 
  (a) <nl>Of the subjects listed in sec.371.7 and sec.371.8 of this title 
(relating to Written Examination and Practical and Oral Examination), when<ol> 
[When] examination is conducted by the board, an examinee, in order to become 
licensed, must make a grade of not less than 60 in any subject given and a 
general average of 75 in all subjects given. <nl>The applicant must make a grade 
of not less than 75 on the subject of jurisprudence, if given. 
   
  (b) (No change.) 
   
  (c) When examination is conducted by an entity delegated the authority to 
examine <nl>under sec.371.6(e) of this title (relating to Time, Place, and Scope 
of Examinations),<ol> the board at its discretion may translate on a rational 
and justified basis grades or scores reported by that entity into equivalent 
scores of an examination were it conducted by the board. 
 
     
  sec.371.14. Disqualification to Take Examination. 
 
  (a)  Applicants who wish to take the examination but who may be disqualified 
for reasons set out in Texas Civil Statutes, Article 4570, shall be entitled to 
a hearing <nl>before the board or a subcommittee of the board, but such hearing 
may be informal and need not be<ol> held in accordance with Chapter 377 of this 
title (relating to Procedure Governing Grievances, Hearings, and Appeals). 
   
  [(b) Hearings involving few issues on whether an applicant is qualified to 
take the examination will be held by the full board prior to the examination.] 
   
  <nl>(b)<ol>[(c)] Hearings [involving extensive evidence] on whether an 
applicant is qualified to take the examination shall be held as soon as possible 
after the secretary-treasurer receives the application. [This type of hearing 
shall be conducted by the board or a hearing officer, as defined by sec.377.1 of 
this title (relating to Definitions) .] 
   
  <nl>(c)<ol>[(d)] If the hearing is held immediately preceding the examination, 
the <nl>board<ol> [board, if possible,] shall determine whether the applicant is 
eligible to take the examination before the examination begins. However, if the 
hearing is not completed by the time the examination is scheduled to begin, the 
board may recess such hearing<nl>, and any<ol> [and in such cases, the] 
applicant [or other applicants] who <nl>has<ol> [have] not had a hearing shall 
be allowed to take the examination. <nl>The<ol> [However, the] examination 
grades of all such applicants shall not be disclosed to <nl>those<ol> [the] 
applicants until after their eligibility to take the examination is finally 
determined. 
   
  <nl>(d) <ol>[(e)] Any applicant who is refused admittance to an examination 
has the right to appeal such decision in accordance with <nl>sec.377.43 of this 
title (relating to Appeal)<ol> [Chapter 377 of this title (relating to Procedure 
Governing Grievances, Hearings, and Appeals)] and Texas Civil Statutes, Articles 
4570 and 6252-13a. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on October 29, 1992. 
 TRD-9214615 
  Janie Alonzo 
 Certifying Official, Administrative Technician II 
 Texas State Board of Podiatry Examiners 
    Earliest possible date of adoption: December 11, 1992 
 For further information, please call: (512) 794-0145 
             Chapter 373. Identification of Practice 
  
  22 TAC sec.373.2 
 
  The Texas State Board of Podiatry Examiners proposes an amendment to 
sec.373.2, concerning identification of practice. The section defines terms 
commonly used in the profession, practitioner identification, the use of trade 
names, and assumed names, healing art identifications, and violations. We are 
deleting some practitioner identifications which are no longer used. 
 D. Elliot Branson, executive director, has determined that for the first five-
year period the section is in effect there will be no fiscal implications for 
state or local government as a result of enforcing or administering the section. 
 Mr. Branson also has determined that for each year of the first five years the 
sections are in effect the public benefit anticipated as a result of enforcing 
the section will be better clarity in the rules. There will be no effect on 
small businesses. There is no anticipated economic cost to persons who are 
required to comply with the section as proposed. 
 Comments on the proposal may be submitted to Janie Alonzo, 3420 Executive 
Center Drive, Suite 305, Austin, Texas 78731, (512) 794-0145. 
 The amendment is proposed under Texas Civil Statutes, Articles 4568(j) and 
4590(e), which provide the Texas State Board of Podiatry Examiners with the 
authority to adopt all reasonable or necessary rules, regulations, and by-laws 
not inconsistent with the law regulating the practice of podiatry, the laws of 
this state, or of the United States; to govern its proceedings and activities, 
the regulation of the practice of podiatry, and the enforcement of the laws 
regulating the practice of podiatry. 
 
 
  sec.373.2. Practitioner Identification. 
 
  (a) A licensed practitioner of podiatry shall always in any publication that 
includes his name use only the authorized designation to professionally identify 
himself or herself. Authorized designations for a podiatrist are limited to the 
following: Doctor of Podiatric Medicine, D.P.M., [Doctor of Podiatry,] 
Podiatrist, [Podiatric Doctor,] Podiatric Physician. 
   
  (b)-(e) (No change.) 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on October 29, 1992. 
 TRD-9214616 
  Janie Alonzo 
 Certifying Official, Administrative Technician II 
 Texas State Board of Podiatry Examiners 
    Earliest possible date of adoption: December 11, 1992 
 For further information, please call: (512) 794-0145 
         
             Chapter 377. Procedures, Governing Grievances, Hearings, and 
Appeals 
  
  22 TAC sec.377.1, sec.377.43 
 
  The Texas State Board of Podiatry Examiners proposes amendments to sec.377. 1 
and sec.377.43, concerning procedures governing grievances, hearings and 
appeals. The sections define procedures governing grievances, hearings, and 
appeals. Changes are needed to bring them up-to-date with current statute. 
 D. Elliot Branson, executive director, has determined that for the first five-
year period the sections are in effect there will be no fiscal implications for 
state or local government as a result of enforcing or administering the 
sections. 
 Mr. Branson also has determined that for each year of the first five years the 
sections are in effect the public benefit anticipated as a result of enforcing 
the sections as proposed will be rules that are up-to-date with current statute. 
There will be no effect on small businesses. There is no anticipated economic 
cost to persons who are required to comply with the sections as proposed. 
 Comments on the proposal may be submitted to Janie Alonzo, 3420 Executive 
Center Drive, Suite 305, Austin, Texas 78731, (512) 794-0145. 
 The amendments are proposed under Texas Civil Statutes, Articles 4568(j) and 
4590(e), which provide the Texas State Board of Podiatry Examiners with the 
authority to adopt all reasonable or necessary rules, regulations, and by-laws 
not inconsistent with the law regulating the practice of podiatry, the laws of 
this state, or of the United States; to govern its proceedings and activities, 
the regulation of the practice of podiatry, and the enforcement of the law 
regulating the practice of podiatry. 
 
 
  sec.377.1. Definitions.  The following words and terms, when used in this 
chapter, shall have the following meanings, unless the context clearly indicates 
otherwise. 
   
   Hearing officer -One or more board members designated by the president of the 
board to conduct <nl>hearings, or any member of the State Office of 
Administrative Hearings, or any other person appointed by the Board to preside 
over any contested administrative hearing<ol> [hearings]. 
 
   
  sec.377.43. Appeal.  Any person whose license to practice podiatry has been 
<nl>denied,<ol> cancelled, revoked, or suspended by order of the board may 
appeal to any district court having jurisdiction and venue in the county of his 
residence. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on October 29, 1992. 
 TRD-9214617 
  Janie Alonzo 
 Certifying Official, Administrative Technician II 
 Texas State Board of Podiatry Examiners 
    Earliest possible date of adoption: December 11, 1992 
 For further information, please call: (512) 794-0145 
         
           Chapter 382. Radiologic Technologists 
  
  22 TAC sec.382.1 
 
  (Editor's note: The text of the following section proposed for repeal will not 
be published. The section may be examined in the offices of the Texas State 
Board of Podiatry Examiners or in the Texas Register office, Room 245, James 
Earl Rudder Building, 1019 Brazos Street, Austin.) 
   
  The Texas State Board of Podiatry Examiners proposes an amendment to 
sec.382.1, concerning registration of podiatry radiologic technologists. This 
section defines who needs to be registered under this rule. Changes are needed 
to recover cost of registering applicants. 
 D. Elliot Branson, executive director, has determined that there will be fiscal 
implications for state government as a result of enforcing or administering the 
section. The effect on state government for the first five-year period the 
section is in effect will be an estimated increase in revenue of $4,000 for 
fiscal year (fy) 1993; $4,250 for fy 1994; $4,500 for fy 1995; $4,750 for fy 
1996; and $5,000 for fy 1997. There will be no effect on local government. 
 Mr. Branson also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be that the board will be able to recover the cost of registering 
the rad-techs. The only businesses that will be affected are podiatrists. There 
will be a $10 increase per registrant. The cost increase is $10 per registrant 
regardless of the size of the business. The anticipated economic cost to persons 
who are required to comply with the section as proposed will be per registrant -
$10 for fys 1993-1997. 
 Comments on the proposal may be submitted to Janie Alonzo, 3420 Executive 
Center Drive, Suite 305, Austin, Texas 78731, (512) 794-0145. 
 The amendment is proposed under Texas Civil Statutes, Articles 4568(j) and 
4590(e), which provide the State Board of Podiatry Examiners with the authority 
to adopt all reasonable or necessary rules, regulations, and by-laws not 
inconsistent with the law regulating the practice of podiatry, the laws of this 
state, or of the United States; to govern its proceedings and activities, the 
regulation of the practice of podiatry, and the enforcement of the law 
regulating the practice of podiatry. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on October 29, 1992. 
 TRD-9214618 
  Janie Alonzo 
 Certifying Official, Administrative Technician II 
 Texas State Board of Podiatry Examiners 
    Earliest possible date of adoption: December 11, 1992 
 For further information, please call: (512) 794-0145 
         
           Part XXII. Texas State Board of Public Accountancy 
  Chapter 501. Professional Conduct 
  
  Other Responsibilities and Practices 
 
  22 TAC sec.501.40 
 
  The Texas State Board of Public Accountancy proposes an amendment to 
sec.501.40, concerning licensing/registration requirements. The amendment 
eliminates language which could be perceived as a conflict with the requirement 
of the Public Accountancy Act, sec.9, that all certificate and registration 
holders obtain biennial licenses. 
 William Treacy, executive director, has determined that for the first five-year 
period the section is in effect there will be no fiscal implications for state 
or local government as a result of enforcing or administering the section. 
 Mr. Treacy also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be that the rules of the agency shall conform to the Act. There 
will be no effect on small businesses. There is no anticipated economic cost to 
persons who are required to comply with the section as proposed. 
 Comments on the proposal may be submitted to J. Randel (Jerry) Hill, General 
Counsel, 1033 La Posada, Suite 340, Austin, Texas 78752-3892. 
 The amendment is proposed under Texas Civil Statutes, Article 41a-1, sec.6(a) , 
which provide the Texas State Board of Public Accountancy with the authority to 
promulgate rules relating to licensing and registration requirements. 
 
 
  sec.501.40. Licensing/Registration Requirements. A certificate or registration 
holder  <nl>must<ol> [may not] perform accounting functions [without a license 
from the board and must perform the functions] through an entity registered with 
the board pursuant to the Public Accountancy Act, sec.10. Accounting functions 
include, but are not limited to, the preparation of tax returns or the 
furnishing of advice on tax matters, bookkeeping services, the issuance of 
reports on financial statements, the furnishing of management advisory or 
consulting services, and the sale, advice, or management of computer software 
which includes or implies an expertise in accounting. Not included, however, is 
a certificate holder performing accounting services as an employee, partner, or 
shareholder of, and exclusively for: 
 
  (1) federal, state, or local governmental entities; or 
   
  (2) an employer or firm not offering accounting services to the public. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on November 2, 1992. 
 TRD-9214819 
  William Treacy 
 Executive Director 
 Texas State Board of Public Accountancy 
    Earliest possible date of adoption: December 11, 1992 
 For further information, please call: (512) 450-7066 
         
                 Part XXIV. Texas Board of Veterinary Medical Examiners 
  Chapter 573. Rules of Professional Conduct 
  
  Records Keeping 
 
  22 TAC sec.573.51 
 
  The Texas Board of Veterinary Medical Examiners proposes an amendment to 
sec.573.51 concerning rabies control. The amendment will allow for the use of 
signature stamps on rabies certificates of vaccination and adds the section of 
the Rabies Control and Eradication Act that requires proper precautions to 
preserve the body of animals suspected of having rabies. 
 Buddy Matthijetz, executive director, has determined that for the first five-
year period the section is in effect there will be no fiscal implications for 
state or local government as a result of enforcing or administering the section. 
 Mr. Matthijetz also has determined that for each year of the first five years 
the section is in effect the public benefit anticipated as a result of enforcing 
the section as proposed will be that it will allow for more efficient issuance 
of rabies vaccination certificates, and cites for the DVM the section of the 
Rabies Act requiring proper preservation of suspected rabid animals. There will 
be no effect on small businesses. There is no anticipated economic cost to 
persons who are required to comply with the section as proposed. 
 Comments on the proposal may be submitted to Texas Board of Veterinary Medical 
Examiners, 1946 South IH-35, Suite #306, Austin, Texas 78704. 
 The amendment is proposed under Texas Civil Statutes, Article 8890, sec.7(a), 
which provide the Texas Board of Veterinary Medical Examiners with the authority 
to make, alter, or amend rules and regulations as may be necessary or desirable 
to carry into effect the provisions of this Act. 
 
 
  sec.573.51. Rabies Control. 
 
  (a) Each Texas licensed veterinarian shall keep a record of each rabies 
vaccination administered by him/her for at least three years. The record of said 
vaccination shall include the date administered, animal's breed, age, 
approximate weight, name, color, owner, the vaccine expiration date, together 
with its serial number. The name, address, and telephone number of the 
administering veterinarian, along with his/her signature,  <nl>or signature 
stamp,<ol> and license number shall be included. The tag shall include the tag 
serial number, clinic name, or veterinarian's name, telephone number, or address 
and the title "Rabies". 
   
  (b) It is the duty of a veterinarian to inquire whether an animal that has 
expired in his/her clinic, or that is brought to the clinic dead, has bitten any 
human being prior to its death. If the animal has bitten any human being prior 
to its death, the veterinarian shall inform the Texas Department of Health or 
local health authorities of the possibility of rabies and take proper 
precautions to preserve the animal's body for rabies diagnosis, <nl>as required 
in the Texas Rabies Control and Eradication Act, sec.169.33. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on October 29, 1992. 
 TRD-9214661 
  Buddy Matthijetz 
 Executive Director 
 Texas Board of Veterinary Medical Examiners 
    Proposed date of adoption: February 3, 1993 
 For further information, please call: (512) 447-1183 
         
                   
  TITLE 25. Health Services 
 Part I. Texas Department of Health 
  Chapter 133. Hospital Licensing 
  
  Standards 
 
  25 TAC sec.133.21, sec.133.29 
 
  The Texas Department of Health (department) proposes an amendment to 
sec.133.21 and new sec.133.29, concerning hospital licensing standards 
(standards). Section 133.21 adopts by reference the department's hospital 
licensing standards which presently include 12 chapters. 
 New sec.133.29 is the first of the 12 chapters in the standards that will be 
converted into the Texas Administrative Code format. New sec.133.29 will replace 
Chapter 12 of standards concerning the special licensing standards for the 
provision of mental health services in hospitals licensed by the department. The 
amendment to sec.133.21 will reflect the effective date the transfer of Chapter 
12 of the standards to new sec.133.29. 
 The new section provides clarification regarding a physician's evaluation of a 
voluntary patient who presents or is presented for mental health services in a 
hospital licensed by the department. The department has identified 
misinterpretations of current rules in Chapter 12 of the standards concerning 
the evaluation of a patient who presents or is presented to a hospital licensed 
by the department for voluntary admission to the identifiable part providing 
mental health services. The department has expanded the language in new 
sec.133.29 to clarify a general or special hospital's responsibility regarding 
the medical examination of a person before the person's admission to the 
hospital. 
 Maurice B. Shaw, acting associate commissioner for special health services, has 
determined that for the first five-year period the sections as proposed are in 
effect there will be no new fiscal implications for state or local governments 
as a result of enforcing or administering the sections. 
 Mr. Shaw also has determined that for the first five years the sections are in 
effect the public benefit will be that the provision of mental health services 
in hospitals will provide the public with a better understanding of a 
physician's and a hospital's responsibility in evaluating a patient who presents 
or is presented to a general or special hospital for voluntary admission to the 
identifiable part providing mental health services. In addition the conversion 
of existing language (which is presently adopted by reference) into Texas 
Administrative Code format will allow the text and future changes to the text to 
be published in the Texas Register. There will be no cost to small businesses as 
a result of the sections. There will be no economic cost to persons to comply 
with the sections, and there will be no impact on local employment. 
 Comments on the proposal may be submitted to Maurice B. Shaw, Acting Associate 
Commissioner for Special Health Services, Texas Department of Health, 1100 West 
49th Street, Austin, Texas 78756, (512) 834-6645. Comments will be accepted for 
a period of 30 days after publication of the new section in the Texas Register. 
 The amendment and new section are proposed under the Health and Safety Code, 
sec.241.027, which provides the Texas Board of Health (board) with authority to 
adopt rules to establish and enforce minimum standards for the licensing of 
hospitals; and sec.12.001 which provides the board with the authority to adopt 
rules for the performance of every duty imposed by law upon the board, the 
department and the commissioner of health. 
 
 
  sec.133.21. <nl>Standards -Adopted [Adoption] by Reference. 
 
  (a) The Texas Department of Health adopts by reference the rules contained in 
the department publication effective September 1, 1985, entitled "Hospital 
Licensing Standards, <nl>Chapters 1-11<ol>," as amended <nl>February 1993<ol> 
[September 1992]. <nl>Standards for Chapter 12 have been transferred to 
sec.133.29 of this title (relating to Special Licensing Standards for the 
Provision of Mental Health Services in Hospitals) effective February 1993<ol>. 
   
  (b) (No change.) 
 
     
  sec.133.29. Special Licensing Standards for the Provision of Mental Health 
Services in Hospitals. 
 
  (a) Purpose. This section is adopted to improve the care and treatment of 
patients receiving mental health services in hospitals licensed by the Texas 
Department of Health (department) pursuant to the authority of Health and Safety 
Code, Chapter 241. 
 
  (1) In addition to other applicable licensing standards, this section applies 
to: 
 
  (A) a person that applies to the department for the issuance of an initial 
license or a renewal license to operate a "hospital" as that term is defined in 
subsection (b)(7) of this section; and 
   
  (B) a person that holds a license issued by the department to operate a 
"hospital" as that term is defined in subsection (b)(7) of this section. 
     
  (2) This section does not apply to the provision of "mental health services," 
as that term is defined in subsection (b)(12) of this section, unless the 
hospital meets the criteria included in the definition of the term "hospital" 
contained in subsection (b)(7) of this section. 
   
  (3) This section applies only to the identifiable part of the hospital 
approved by the department for the admission and housing of patients receiving 
mental health services. 
     
  (b) Definitions. The following words and terms, when used in this section, 
shall have the following meanings, unless the context clearly indicates 
otherwise. 
 
  (1) Applicant-A person who seeks a license from the department to operate a 
hospital. 
   
  (2) Board-The Texas Board of Health. 
   
  (3) Chemical dependency-Has the meaning given in the Health and Safety Code, 
sec.462.001(3). 
   
  (4) Department-The Texas Department of Health, 1100 West 49th Street, Austin, 
Texas 78756-3199. 
   
  (5) Director-The director of hospital licensing, Texas Department of Health. 
   
  (6) Division-The Health Facility Licensure and Certification Division, Texas 
Department of Health. 
   
  (7) Hospital-A general or special hospital as defined in the Health and Safety 
Code, sec.241.003(4) and sec.241.003(11) that includes an identifiable part of 
the hospital for the provision of mental health services. 
   
  (8) Hospital administration-An individual who has the authority to represent 
the hospital and who is responsible for the operation of the hospital according 
to the policies and procedures of the hospital's governing body. 
   
  (9) Law-The Texas Hospital Licensing Law, Health and Safety Code, Chapter 241. 
   
  (10) License-The permission granted to a person by the department to operate a 
hospital. 
   
  (11) Licensee-A person who has been granted a license to operate a hospital by 
the department. 
   
  (12) Mental health services -The care provided in a hospital, the primary 
purpose of which includes the provision of inpatient chemical dependency 
treatment or psychiatric assessment, diagnostic services, psychiatric inpatient 
care, or treatment for mental illness. 
   
  (13) Mental illness-Has the meaning given in the Health and Safety Code, 
sec.571.003(4). 
   
  (14) Patronage-Intentionally or knowingly giving or receiving any remuneration 
directly or indirectly, overtly or covertly, in cash or in kind, in exchange for 
recommending or referring a person for treatment. 
   
  (15) Person-Has the meaning given in the Health and Safety Code, 
sec.241.003(8). 
   
  (16) Physician -An individual licensed by the Texas State Board of Medical 
Examiners to practice medicine in the State of Texas or an individual employed 
by any agency of the United States having a license to practice medicine in any 
state of the United States. 
   
  (17) Polypharmacy-Treatment of a patient by the simultaneous use of more than 
one psychoactive drug. 
   
  (18) Special treatment procedures-Those procedures which include the use of 
any of the following: 
 
  (A) restraint; 
   
  (B) seclusion; 
   
  (C) electro-convulsive therapy; 
   
  (D) psychosurgery; 
   
  (E) behavior modification; 
   
  (F) unusual, investigational, and experimental drugs or therapy; 
   
  (G) maintenance drugs that have abuse potential; or 
   
  (H) research projects that involve inconvenience or risk to the patient. 
     
  (19) Threat-Actions in response to a request for discharge that are illegal or 
unjustified by the patient's condition. 
   
  (20) Unusual medications-Medication that: 
 
  (A) has not been approved by the Food and Drug Administration for use in the 
United States; or 
   
  (B) 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. 
       
  (c) Application for license or renewal license. In addition to complying with 
all other requirements for licensure or relicensure contained in the Hospital 
Licensing Standards, which are adopted by reference in sec.133. 21 of this title 
(relating to Standards -Adopted by Reference) and the documentation required by 
the department in sec.133.31(a)(2)-(4) of this title (relating to Time Periods 
for Processing and Issuing Hospital Licenses), an applicant for a license or a 
renewal license to operate a hospital subject to this section must also complete 
and submit a supplementary information section designed to provide additional 
information relating to the hospital's provision of mental health services. An 
incomplete application may be considered by the department as the basis to deny 
the issuance of a license or renewal license to operate a hospital. 
 
  (1) A hospital must notify the department of its intent to initiate the 
provision of mental health services before the provision of mental health 
services has begun. 
   
  (2) If the hospital intends to initiate the provision of mental health 
services, the hospital must submit plans and specifications for the identifiable 
part of the hospital providing mental health services for approval by the 
department using the procedures found in the Hospital Licensing Standards, 
Chapter 3 (relating to Renovation Projects); Chapter 4 (relating to Application 
of Standards); Chapter 5 (relating to Submittal Requirements); and Chapter 7, 
Subchapter 7-7 (relating to Psychiatric Nursing Unit/Chemical Dependency Unit) 
adopted by reference in sec.133.21 of this title (relating to Standards-Adopted 
by Reference). 
   
  (3) Patients admitted to the hospital for chemical dependency or mental health 
services must be admitted and housed in the identifiable part of the hospital 
that has been approved by the department for that purpose. 
     
  (d) Special standards for the licensure and relicensure of hospitals. 
 
  (1) Except as otherwise specifically stated in this section, the governing 
body shall ensure that the hospital is in compliance with the Medicare (Title 
XVIII of the Social Security Act, as amended) Conditions of Participation for 
Hospitals, contained in 42 Code of Federal Regulations, sec.sec.482.2-482.57. 
   
  (2) The board recommends that hospitals also be in compliance with 42 Code of 
Federal Regulations, sec.482.61 (relating to Special Medical Record Requirements 
for Psychiatric Hospitals) and sec.482.62 (relating to Special Staff 
Requirements for Psychiatric Hospitals). 
   
  (3) Current accreditation of a hospital by the Joint Commission on 
Accreditation of Healthcare Organizations (JCAHO) is deemed to be compliance 
with the Medicare conditions of participation and will discharge the hospital's 
obligation cited above to meet 42 Code of Federal Regulations, sec.sec.482.2-
482.57. 
     
  (e) Special treatment procedures. The board recommends that the hospital's 
governing body approve bylaws which require the hospital to adopt and enforce 
policies and procedures for the use of special treatment procedures that 
incorporate the standards set out in the current edition of the Consolidated 
Standards Manual published by the JCAHO. 
   
  (f) Administration of medications. The board recommends that the hospital's 
governing body adopt bylaws which require the hospital to adopt and enforce 
policies and procedures for the administration of medications that require all 
medications to be administered by licensed nurses, licensed physicians or other 
licensed professionals authorized by law to administer medications. 
 
  (1) The policies and procedures should also require that all medication 
administration procedures performed by a licensed vocational nurse be under the 
direct supervision of a registered nurse. 
   
  (2) The policies and procedures should be consistent with the standards of 
care established in sec.401.587 of this title (relating to Patient Care 
Requirements for Licensure) adopted by the Texas Department of Mental Health and 
Mental Retardation (TxMHMR) or other professionally recognized and accepted 
standards of care in the area of prescribing practices for medications, 
including the use of polypharmacy, maximum dose levels, and consent to 
medication. The source or sources used in the development of the policies and 
procedures should be identified in the document. 
   
  (3) An example of a policy and procedure described in subparagraphs (A) and 
(B) of this paragraph relating to the use of polypharmacy was taken and modified 
from Subchapter J, Chapter 401 of this title (relating to the Licensure of 
Private Psychiatric Hospitals) which were adopted by the Texas Department of 
Mental Health and Mental Retardation to govern the use of polypharmacy in state 
hospitals under the jurisdiction of that agency. Polypharmacy is permissible 
only in accordance with one or more of the following. The physician initiating 
polypharmacy should be: 
 
  (A) the chief physician who has had experience as the clinical director of a 
state hospital, research institute, or state center, or the medical director of 
a state school; or 
   
  (B)the chief physician designee who is credentialed by the chief physician to 
act for and report to the chief physician in matters relating to the prescribing 
of psychoactive drugs; or 
   
  (C) a physician with documented training or experience that qualifies the 
physician to assume the chief physician's clinical responsibilities with regard 
to psychoactive drugs and evaluations. 
       
  (g) Patient rights. The board recommends that the governing body adopt bylaws 
that require the hospital to develop and enforce policies and procedures that 
include a patient rights policy based on the Health and Safety Code, Chapter 576 
(relating to the Rights of Patients) and the standards set forth in the current 
edition of the Consolidated Standards Manual published by JCAHO. 
 
  (1) Statement of patient rights recommended. As part of the policies and 
procedures, the board recommends that the hospital adopt and enforce the 
Recommended Patient's Bill of Rights, which follows this paragraph. Copies of 
the Recommended Patient's Bill of Rights suitable for reproduction may be 
obtained from the director. 
 
  
   
  
   
  
   
  
   
  
   
  
   
  [graphic] 
     
  (2) Education of governing body, medical staff, nursing staff, and hospital 
employees. The board recommends that the hospital take the steps described in 
subparagraphs (A)-(C) of this paragraph to educate the members of the hospital's 
governing body, medical staff, hospital administration, nursing staff, and other 
hospital employees about the Recommended Patient's Bill of Rights. 
 
  (A) Copies of the Recommended Patient's Bill of Rights should be given to 
members of the hospital's governing body, medical staff, hospital 
administration, nursing staff, and other hospital employees. A copy of the 
complaint policy should also be given to each patient at the time of the 
patient's admission as set out in paragraph (4) of this subsection. 
   
  (B) The hospital administration should strive to provide an explanation of the 
content of the Recommended Patient's Bill of Rights to the members of the 
hospital's governing body, medical staff, hospital administration, nursing 
staff, and other hospital employees as early as possible in the person's 
association with the hospital. 
   
  (C) The hospital administration should schedule a review of the content of the 
Recommended Patient's Bill of Rights periodically for the benefit of the members 
of the hospital's governing body, medical staff, nursing staff, and hospital 
administration, and other hospital employees and as soon as possible after the 
document is modified by the department. 
     
  (3) Display of rights policy. The board recommends that copies of the 
Recommended Patient's Bill of Rights should be displayed prominently at all 
times in all areas frequented by persons receiving mental health services, and 
as appropriate the person's family member, guardian, or friend (e.g., dayrooms, 
recreational rooms, waiting rooms, lobby areas). A sufficient number of copies 
should be kept on hand in each of these areas so that a copy may be readily 
available to anyone requesting one. 
   
  (4) Education of patient, family, friends. Before admission or acceptance for 
evaluation, a copy of the Recommended Patient's Bill of Rights should be given 
to each person, whether voluntarily admitted or accepted for evaluation before 
an emergency detention, and, as appropriate, to the person's family member, 
guardian, or friend. If a patient refuses to sign the document, the presentation 
of the document should be witnessed by two members of the hospital staff and the 
unsigned Recommended Patient's Bill of Rights should be placed in the medical 
record along with a note signed by the witness indicating the refusal by the 
patient. 
 
  (A) Within 24 hours of being admitted to the hospital to receive mental health 
services, the rights outlined in the Recommended Patient's Bill of Rights should 
be explained aloud to the patient in a way the patient can understand (e.g., in 
the patient's language if the patient is not English-speaking, in sign language 
if the patient is hearing-impaired). A duplicate copy of the Recommended 
Patient's Bill of Rights, signed and witnessed as described in this paragraph 
should be placed in the patient record. 
   
  (B) If, owing to the patient's condition at the time of admission and 24 hours 
later, the patient does not appear to understand the content of the rights 
document or the explanation of the rights document, the staff should give the 
patient another copy of the Recommended Patient's Bill of Rights and should 
attempt to provide an explanation periodically until understanding is reached or 
until discharge. The necessity for repeating the rights communication process 
should be documented in the patient's record, signed, and dated by the staff. 
       
  (h) Patient complaint policy. The board recommends that the governing body 
adopt bylaws that require the hospital to develop and enforce policies and 
procedures that include a procedure for receiving and responding to complaints 
from patients, their families and friends involving patient rights and quality 
of care. 
 
  (1) Education of governing body, medical staff, nursing staff, and hospital 
employees; display. The board recommends that the hospital take the steps 
described in suparagraphs (A)-(C) of this paragraph to educate the members of 
the hospital's governing body, medical staff, hospital administration, and other 
employees. 
 
  (A) Copies of the patient complaint policy should be given to members of the 
hospital's governing body, medical staff, administration, and other hospital 
employees. A copy of the patient complaint policy should be given to the patient 
on admission under the requirements set out in paragraph (2) of this subsection. 
   
  (B) The hospital administration should strive to provide an explanation of the 
content of the patient complaint policy to the members of the hospital's 
governing body, medical staff, hospital administration, nursing staff, and other 
hospital employees as early as possible in the person's association with the 
hospital. 
   
  (C) The hospital administration should schedule a review of the content of the 
patient complaint policy periodically for the benefit of the members of the 
hospital's governing body, medical staff, hospital administration, nursing 
staff, and other hospital employees and as soon as possible after the document 
is modified by the hospital. 
     
  (2) Education of the patient, family, friends. The hospital should provide a 
copy of the patient complaint policy to each person admitted voluntarily or 
accepted for evaluation before an emergency detention, and, as appropriate, to 
the person's family member, guardian, or friend. The provision of the policy 
should be documented in the patient's record. 
 
  (A) Within 24 hours of being admitted to the hospital to receive mental health 
services, the patient complaint policy should be explained aloud to the patient 
in a way the patient can understand (e.g., in the patient's language if the 
patient is not English-speaking, in sign language if the patient is hearing-
impaired). 
   
  (B) If, owing to the patient's condition at the time of admission and 24 hours 
later, the patient does not appear to understand the content of the complaint 
policy document or the explanation of the complaint document, the staff should 
give the patient another copy of the patient complaint policy and should attempt 
to provide an explanation periodically until understanding is reached or until 
discharge. The necessity for repeating the patient complaint policy should be 
documented in the patient's record, signed, and dated by the staff. 
     
  (3) Display of complaint line number. The hospital should post the complaint 
procedure in public areas throughout the hospital. The notice should include the 
telephone number of a 24 hour patient information and complaint line through 
which a patient, family member, guardian, or friend may file an oral complaint 
against the hospital and hospital personnel directly with the department. The 
notice should also contain the name and address of the department to facilitate 
the filing of written complaints. 
     
  (i) Compliance with other state law. The board recommends that the governing 
body adopt bylaws that require the hospital to develop and enforce a policy that 
requires active compliance with state laws that act to guard the patient against 
abuse and neglect and to protect other patient rights. The board recommends that 
the compliance policy incorporate specific statements of responsibility, a 
review and investigation procedure, and procedures for the education of the 
governing body, the hospital administration, medical staff, nursing staff, and 
other hospital personnel in accordance with sec. s404. 81-404.87 of this title 
(relating to Patient Abuse in Private Psychiatric Hospitals). The board 
recommends that hospitals not employ, contract with, refer to, or accept 
referrals from any person who offers or accepts remuneration, in kind gifts or 
services, or other compensation of any kind for securing patients or patronage, 
including, securing patients or patronage in violation of the Health and Safety 
Code, sec.161.091. At a minimum, the governing body, the hospital 
administration, medical staff, nursing staff, and other hospital personnel 
should be aware of the state laws described in paragraphs (1) and (2) of this 
subsection and the respective obligations of each under such laws. 
 
  (1) Reporting requirements. 
 
  (A) The hospital, hospital personnel, medical staff, and nursing staff, shall 
report to the appropriate state agency or other enforcement authority any 
instance of: 
 
  (i) child abuse and neglect to the state or local law enforcement or the Texas 
Department of Human Services as required by the Family Code, sec.34.02 and if 
the acts occurred after the child's admission to the hospital, it is recommended 
that the acts also be reported to the department; 
   
  (ii) abuse and neglect of an elderly or disabled person to the Texas 
Department of Human Resources, and if the acts occurred after the elderly or 
disabled person's admission to the hospital, to the department as required by 
the Human Resources Code, sec.48.036; and 
   
  (iii) a patient death that requires an inquest under either the Code of 
Criminal Procedure, Article 49.04 relating to investigations by a justice of the 
peace, or the Code of Criminal Procedure, Article 49.25, relating to 
investigations by the county medical examiner, as appropriate, including a death 
when: 
 
  (I) the patient dies within 24 hours after admission to the hospital; 
   
  (II) the patient is killed or dies an unnatural death from a cause other than 
legal execution; or dies in the absence of one or more witnesses; 
   
  (III) the body of the patient is found and the circumstances of death are 
unknown; 
   
  (IV) the circumstances of the patient's death are such as to lead to suspicion 
that the death was by unlawful means; 
   
  (V) the patient commits suicide or the circumstances of the death indicate 
that the death may have been caused by suicide; or 
   
  (VI) the patient's attending physician is unable to certify the cause of 
death. 
       
  (B) The board recommends that the hospital report a patient death that is the 
subject of an inquest to the director within 24 hours. 
     
  (2) Protection against certain crimes and consumer abuses. The board 
recommends that the governing body adopt and the hospital administration enforce 
a policy of mental health services review, and if necessary, internal 
investigation to protect the personal and financial security of the hospital's 
patients and their families against violations of the criminal law and consumer 
abuses. The hospital, hospital personnel, and medical staff should report 
evidence of crimes or consumer abuses to the appropriate law enforcement or 
civil authority, including evidence of acts constituting any of the following: 
 
  (A)<ol>illegal remuneration, Health and Safety Code, Subchapter I, Chapter 
161; 
   
  (B) deceptive trade practices, Business and Commerce Code, Chapter 17; 
   
  (C) deceptive business practices, Penal Code, sec.32.42; 
   
  (D) kidnaping and false imprisonment, Penal Code,  ssec.20.01-20.04; 
   
  (E) assault and aggravated assault, Penal Code, sec.22.01 and sec.22.02; 
   
  (F) sexual assault and aggravated sexual assault, Penal Code, sec.22.011 and 
sec.22.021; 
   
  (G) injury to a child or an elderly person, Penal Code, sec.22.04; 
   
  (H) abandoning or endangering a child, Penal Code,  s22.041; and 
   
  (I) theft, Penal Code, sec.31.03. 
     
  (3) Compliance with certain provisions of the Texas Mental Health Code. Under 
state law, a hospital subject to this section may also be responsible for 
complying with the Health and Safety Code, Chapters 571, 572, 573, and 576, 
respectively relating to general provisions, voluntary inpatient admission, 
emergency detention, and the rights of patients receiving mental health 
services. The board recommends that the governing body adopt bylaws that require 
the hospital to develop and enforce policies and procedures designed to protect 
the rights of persons voluntarily admitted to the hospital, accepted by the 
hospital for evaluation or admitted for emergency detention, or detained under 
an order of protective custody. The policies and procedures should, at a minimum 
include specific elements in the provision of mental health services by the 
hospital described in subparagraphs (A)-(E) of this paragraph. 
 
  (A) All voluntary admissions for inpatient mental health services should be 
ordered and clinically justified by a physician. A voluntary patient should not 
be accepted for observation or admission without a face-to-face evaluation by a 
physician. Any of the following will meet this standard: 
 
  (i) a face-to-face evaluation done during a 72-hour period immediately before 
admission by a physician who has treated the patient and is familiar with his or 
her case; or 
   
  (ii) a face-to-face evaluation done during a 24-hour period immediately before 
admission if the patient is unknown to the physician. If this evaluation is done 
by an emergency room physician who does not have admitting privileges, then the 
emergency room physician must contact a psychiatrist for consultation and 
admission orders. 
     
  (B) A voluntary patient expressing a request for release should be given an 
explanation of the process for requesting release and afforded the opportunity 
to request release in writing. When the written request for release is signed or 
presented to any direct care staff of the hospital, it should be witnessed and 
timed and dated. Oral statements of the desire to be discharged should be 
treated as written requests for release and should be reduced to writing by 
staff if necessary. Without regard to whether a voluntary patient agrees to sign 
paperwork requesting discharge from services, the request should be documented 
and processed by the hospital staff. The refusal or inability of the patient to 
sign the request for discharge should be documented on the unsigned written 
request. All written or prepared requests for discharge should be timed, dated, 
and signed by two persons on the hospital staff, who should provide information 
to the patient that pursuant to law, during the ensuing period of up to 24 
hours, the patient should be observed and evaluated to determine the clinical 
appropriateness of seeking involuntary commitment to services. The form and 
format for requesting release and the information to be provided may be 
prescribed by the TxMHMR. 
   
  (C) When a voluntary patient requests release, as soon as possible, but not 
more than 24 hours after receipt of the request for release, the patient should 
be examined face-to-face and assessed for discharge readiness by the patient's 
physician, with input from the members of the treatment team. 
   
  (D) A patient should not be detained unless the person meets the criteria for 
emergency detention or involuntary commitment and the hospital uses the 
additional time to facilitate the detention or commitment process. 
 
  (i) If, in the physician's clinical judgment, the patient meets the criteria 
for emergency detention or involuntary commitment, the physician must execute a 
certificate of medical examination within 24 hours of the patient's request for 
discharge and inform the patient and in the case of a minor under 16 years, the 
patient's family, guardian, or conservator, of the intent to seek an emergency 
detention or involuntary commitment. The physician must provide such information 
to the family of any patient who authorized the release. 
   
  (ii) If, in the physician's clinical judgment, the patient does not meet the 
criteria for emergency detention or involuntary commitment, the patient must be 
discharged as soon as possible following the determination that pursuit of an 
emergency detention or involuntary commitment is not appropriate. In no case 
should the delay exceed 24 hours following the request for discharge. 
   
  (iii) Any instance in which a voluntary patient is detained should be 
supported by documentation that clearly describes the clinical rationale for 
detention and plans for disposition. 
     
  (E) Threats intended to influence a voluntary patient's decision to exercise 
the right to request discharge should be strictly prohibited. 
     
  (4) Emergency detention. 
 
  (A) A person temporarily accepted for emergency detention should be examined 
by a physician as soon as possible within the first 24 hours after apprehension. 
   
  (B) A person should be admitted to the hospital for emergency detention only 
if the physician who conducted the preliminary examination makes a written 
statement in the patient record that the person meets the criteria for admission 
set out in the Health and Safety Code, sec.573.022, relating to emergency 
admission and detention. 
 
  (i) A person should not be taken to a hospital for emergency detention unless 
the hospital administration agrees in advance to accept the person. A hospital 
should only accept such patients when a physician is available to immediately 
evaluate the person under the criteria for emergency detention set out in the 
Health and Safety Code, sec.573.002. Upon arrival at the hospital, the rights of 
persons apprehended for emergency detention, as contained in the Recommended 
Patient's Bill of Rights described in subsection (g)(1) of this section, should 
be provided and explained to the person by the hospital staff. 
   
  (ii) Submission of an application for voluntary admission after the person has 
been apprehended for emergency detention but before the preliminary evaluation 
for admission for emergency detention has been conducted should not negate the 
requirements for the preliminary evaluation for emergency detention under the 
Health and Safety Code, sec.573.022. 
     
  (C) A person apprehended under the Health and Safety Code, Subchapter A, 
Chapter 573, relating to apprehension by a peace officer, and detained under the 
Health and Safety Code, Subchapter B, Chapter 573, relating to emergency 
detention by order of a magistrate, should be released after the preliminary 
examination unless the person is admitted to the hospital under the Health and 
Safety Code, sec.573.022, relating to emergency admission and detention. 
   
  (D) A person admitted to a hospital under the Health and Safety Code, 
sec.573.022, should be released if the attending physician determines at any 
time during the emergency detention period that the person no longer meets one 
of the criteria required by the Health and Safety Code, sec.573.022(2). 
       
  (j) Enforcement of special standards. 
 
  (1) Compliance with this section required. Each hospital licensed by the 
department shall comply with the Medicare conditions of participation as 
provided in subsection (e)(1) of this section. Each hospital licensed by the 
department should comply with the recommendations of the board as they are 
recited in this section. 
   
  (2) Investigations. The director, the director's designee, or the division may 
enter and inspect a hospital at any time the director deems reasonable to assure 
compliance with this section, prevent violations of this section, or to 
investigate complaints made against the hospital. The director, the director's 
designee, or the division may document failure to conform to the recommendations 
of the board set out in this section. 
   
  (3) Notice; opportunity for correction; enforcement actions. If after an 
investigation, the director has reasonable cause to believe that a hospital has 
violated the law or the standards described in this section, the director shall 
provide notice to the hospital of the violation or violations and an opportunity 
for correction. If the hospital fails or refuses to correct the violation, the 
director may undertake any or all of the following enforcement actions: 
 
  (A) refuse to issue a license or a renewal license; 
   
  (B) suspend or revoke an existing license; or 
   
  (C) seek injunctive relief as provided by the law. 
     
  (4) Denial to issue, reissue, suspend, or revoke a hospital license. Action by 
the director to refuse to issue or reissue a license, or to suspend or revoke a 
hospital license shall be preceded by granting the hospital an opportunity for a 
hearing before the department to contest the proposed action. Notice and hearing 
will be governed by the board's formal hearing procedures described in Chapter 1 
of this title (relating to Board of Health) and the applicable provisions of the 
Administrative Procedure and Texas Register Act, Texas Civil Statutes, Article 
6252-13a. 
   
  (5) Counsel concerning the importance and background of the recommendation. If 
the director, the director's designee, or the division has found that the 
hospital has failed or refused to incorporate the recommendations of the board 
into its policies and procedures, the director, the director's designee, or the 
division should counsel with members of the hospital's governing body, medical 
staff, administration, or other hospital employees, as appropriate, to explain 
the importance and background of the recommendations and to encourage 
cooperation. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on November 3, 1992. 
 TRD-9214795 
  Robert A. MacLean, M.D. 
 Deputy Commissioner 
 Texas Department of Health 
    Earliest possible date of adoption: January 15, 1993 
 For further information, please call: (512) 834-6645 
         
                     
  TITLE 31. NATURAL RESOURCES AND CONSERVATION 
 Part III. Texas Air Control Board 
  Chapter 103. Procedural Rules 
  
  Initiation of Other Than Rule Making Hearings 
 
  The Texas Air Control Board (TACB) proposes amendments to sec.103.33 
concerning initiation of other than rulemaking hearings, sec.103.42 and 
sec.103.46 concerning adjudicative hearings, and a new undesignated head 
concerning alternative dispute resolution (ADR) procedures. The proposed changes 
are in response to an initiative by the hearings oversight committee to improve 
the hearings process and include input from the chairman of the TACB, the 
general public, and the TACB staff. 
 The proposed changes to sec.103.33, concerning action on request for a hearing, 
outline the information a requestor will be required to provide after a request 
for a hearing has been received by the executive director and specify the 
procedure for appealing the executive director's decision to grant a hearing. 
The proposed changes to sec.103. 42 concerning hearing examiner, establish the 
order for presenting evidence and specify that the consequence for withdrawing a 
permit application solely for the purpose of obtaining a continuance is a 
requirement to wait at least 90 days before being allowed to refile a new 
application. The proposed changes to sec.103.46 concerning prehearing 
conference, require an initial prehearing conference, set the conditions for a 
second prehearing conference, specify the items or information the applicant is 
required to make available to named parties or their counsel, and state that 
each party bears the responsibility for its own document copying costs. The 
proposed new sec.103.91 concerning scope and policy, outlines the TACB's policy 
for the use of ADR Procedures. The proposed new sec.103.92 concerning referral 
of contested licensing application for alternative dispute resolution 
procedures, specifies the procedure for referring a contested licensing 
application, the process for appointing a mediator, the requirements for use of 
an outside mediator, and the qualifications for those selected to the mediator 
pool. The proposed new sec.103.93 concerning time periods, specifies the time 
constraints of the ADR procedures. The proposed new sec.103. 94 concerning 
confidentiality of communications in alternative dispute resolution procedures, 
describes the confidentiality of written and oral communications in regard to 
the ADR proceedings and the restrictions placed upon participants of the 
procedures. 
 Lane Hartsock, deputy director of air quality planning, has determined that for 
the first five-year period the proposed sections are in effect, there will be no 
fiscal implications for state and local units of governments as a result of 
administering the sections. 
 Mr. Hartsock also has determined that for the first five-year period the 
proposed sections are in effect, the public benefit anticipated as a result of 
implementing the sections will be a more equitable and efficient hearing 
process. Economic costs to persons and businesses required to implement the 
proposed change are insignificant. 
 A public hearing on this proposal is scheduled for December 2, 1992, at 10 a.m. 
in the Auditorium (Room 201S) of the TACB Central Office, Air Quality Planning 
Annex, located at 12118 North IH-35, Park 35 Technology Center, Building A, 
Austin, Texas 78753. The hearing is structured for the receipt of oral or 
written comments by interested persons. Interrogation or cross- examination is 
not permitted; however, a TACB staff member will be available to discuss the 
proposal at 9:30 a.m. prior to the hearing. Public comment, both oral and 
written, on the proposed new sections is invited at the hearing. 
 Written comments not presented at the hearing may be submitted to the TACB 
Central Office in Austin through December 18, 1992. Material received by the 
Regulation Development Division by 4:00 p.m. on that date will be considered by 
the Board prior to any final action on the proposed new sections. Copies of the 
proposed revisions are available at the central office of the TACB located at 
12124 North IH-35, Park 35 Circle, Austin, Texas 78753, and at all TACB regional 
offices. For further information, contact Bill Ehret at (512) 908-1772 or James 
Braddock at (512) 908-1835. 
 Persons with disabilities who have special communication or other accommodation 
needs who are planning to attend the hearing should contact the agency at (512) 
908-1815. Requests should be made as far in advance as possible. 
   
  31 TAC sec.103.33 
 
  The amendments are proposed for adoption under the Texas Clean Air Act (TCAA), 
sec.382.017, Texas Health and Safety Code (Vernon 1990), which provides the TACB 
with the authority to adopt rules consistent with the policy and purposes of the 
TCAA. 
 
 
  sec.103.33. Action on Request for a Hearing. 
 
  (a) (No change.) 
   
  <nl>(b) After receipt of a request for a hearing, the executive director or 
his designate shall require the requestor to provide in writing a brief, but 
specific, statement of interest and basis for challenging the application. Such 
statement should convey in plain language the requestor's location relative to 
the proposed facility, why the requestor believes he or she will be affected by 
emissions from the proposed facility, what the requestor's concerns are about 
the emissions from the proposed facility, and how the requestor believes 
emissions from the facility will affect him or her if permitted. This statement 
shall not be used as the basis for denial of party status in any contested case 
hearing; party status determinations will be made based on information developed 
at the initial prehearing conference. 
   
  <nl>(c) A decision by the executive director to grant a hearing request 
pursuant to sec.103.33(a)(1) or (2) shall be noticed to the applicant and may be 
appealed by the applicant to the board within 30 days after notification of the 
decision. Such appeal is to be taken by written notification to the executive 
director. If a contested case hearing has already been called, the submission of 
an appeal by the applicant pursuant to this section stays all further actions in 
the hearing, until the appeal has been the subject of final action by the board. 
Such appeal shall be placed on the agenda of the next regularly scheduled board 
meeting subject to posting requirements. The appeal is not subject to contested 
case hearing requirements. 
   
  <nl>(d)<ol>[(b)] The decision of the executive director to deny a request for 
hearing is appealable to the board within 30 days after notification of the 
decision. Such appeal is to be taken by written notification to the executive 
director. Section 103.71 of this title (relating to Request for Action by the 
Board) should be consulted for the method of requesting Board action on the 
appeal. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on October 29, 1992. 
 TRD-9214750 
  Lane Hartsock 
 Deputy Director, Air Quality Planning 
 Texas Air Control Board 
    Proposed date of adoption: February 12, 1993 
 For further information, please call: (512) 908-1451 
         
             
  Adjudicative Hearings 
 
  31 TAC sec.103.42, sec.103.46 
 
  The amendments are proposed for adoption under the Texas Clean Air Act (TCAA), 
sec.382.017, Texas Health and Safety Code (Vernon 1990), which provides the TACB 
with the authority to adopt rules consistent with the policy and purposes of the 
TCAA. 
 
 
  sec.103.42. Hearing Examiner. 
 
  (a) Examiners shall be designated to preside at hearings and to report to the 
board on such hearings in the manner provided by law. In any adjudicative 
hearing, the examiner shall have no other duties concerning the hearing and 
shall be considered to be assisting the board in its decision-making function. 
The examiners shall have no prosecuting duties with the agency and shall act 
independently of the staff in an impartial manner. A hearing examiner assigned 
to a particular proceeding or case shall have the authority to: 
 
  (1)-(4) (No change.) 
   
  (5)  designate and align parties and establish the  <nl>following<ol> order 
for presentation of evidence  <nl>in hearings on permit applications and 
emergency orders: <ol> [;] <nl>the Texas Air Control Board Staff (staff) will 
open with a simple statement of its current position on the application and will 
present the staff's draft permit including any proposed special provisions. The 
applicant presents evidence to meet its burden of proof on the application, any 
opponents present evidence, and the staff presents its evidence. Each party is 
given the opportunity for rebuttal, with the applicant's rebuttal being last in 
order of presentation. Nothing herein should be construed to change the burden 
of proof being upon the applicant; 
   
  (6)-(15) (No change.) 
     
  (b)-(c) (No change.) 
   
  <nl>(d) In the case where an applicant withdraws a permit application solely 
for the basis of obtaining a continuance, the application shall be withdrawn 
with prejudice to refiling for 90 days. 
   
  <nl>(e)<ol>[(d)] If a hearing examiner fails to complete an assigned case 
before a final order is rendered, the director of hearings may appoint another 
examiner on the hearings staff to complete the assigned case without the 
necessity of duplicating any duty or function performed by the previous 
examiner. 
 
     
  sec.103.46. Prehearing Conference. 
 
  (a) <nl>The hearing examiner shall hold an initial prehearing conference at 
which party status is determined and a discovery schedule is set. Reasonable 
notice of the time and location of the conference shall be provided to all 
parties. A second prehearing conference may be scheduled at which time the 
examiner will determine the contested case issues and accept any stipulations as 
to such contested issues.<ol> [The hearing examiner may hold a prehearing 
conference prior to any adjudicative hearing. The examiner shall set the time 
and location of the conference and give reasonable notice thereof to all 
parties. At the discretion of the examiner, persons other than parties may 
attend prehearing conferences. At the discretion of the examiner, additional 
prehearing conferences may be scheduled.] 
   
  <nl>(b) To facilitate transfer of basic information and preparation of the 
parties for the hearing and without precluding further discovery by any of the 
parties, in all contested cases the applicant shall make available to named 
parties or their counsel at a time and place to be determined by the hearing 
examiner: 
 
  <nl>(1) copies of the permit application; and 
   
  <nl>(2) any information which the applicant will rely upon in the hearing, 
such as facts or data upon which an expert bases an opinion or inference, 
including, but not limited to, the following: 
 
  <nl>(A) any engineering or technical studies performed in support of the 
application; 
   
  <nl>(B) any emissions modeling report or computer runs of air emission models 
for the proposed facility; 
   
  <nl>(C) any health effects assessment conducted by or for the applicant for 
the proposed facility; and 
   
  <nl>(D)  resumes and reports of any experts who will testify for the applicant 
in the hearing. 
       
  <nl>(c)<ol>[(b)] The hearing examiner may direct that one or more of the 
following be transmitted by each party to all other parties or their 
representatives and to the hearing examiner by a date established by the hearing 
examiner: 
 
  (1)-(4) (No change.) 
     
  <nl>(d) Except for the copy of the application which the applicant shall 
provide to all parties, each party bears responsibility for its own document 
copying costs. 
   
  <nl>(e)<ol>[(c)] Witnesses and proposed written evidence may be added and 
narrative summaries of expected testimony amended at the hearing only upon a 
finding of the hearing examiner that good cause existed for failure to exchange 
the additional or amended material by the established date. 
   
  <nl>(f)<ol>[(d)] At any prehearing conference or in the prehearing conference 
summary, the hearing examiner: 
 
  (1)-(6) (No change.) 
     
  <nl>(g)<ol>[(e)] The results of any prehearing conference shall be summarized 
in writing by the hearing examiner and made part of the record. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on October 29, 1992. 
 TRD-9214751 
  Lane Hartsock 
 Deputy Director, Air Quality Planning 
 Texas Air Control Board 
    Proposed date of adoption: February 12, 1993 
 For further information, please call: (512) 908-1451 
         
             
  Alternative Dispute Resolution Procedures 
 
  31 TAC sec.sec.103.91, 103.92, 103.93, 103.94 
 
  The amendments are proposed for adoption under the Texas Clean Air Act (TCAA), 
sec.382.017, Texas Health and Safety Code (Vernon 1990), which provides the TACB 
with the authority to adopt rules consistent with the policy and purposes of the 
TCAA. 
 
 
  sec.103.91. Scope and Policy. Alternative dispute resolution procedures are to 
be available to the fullest extent possible for use in potential and actual 
contested case hearings regarding licensing applications under Regulation VI (31 
TAC Chapter 116). These procedures should be employed whenever it appears to the 
executive director, hearing examiner, or the board that a reasonable opportunity 
exists to resolve all issues or any particular issue in a potential or actual 
hearing and that the significance of such potential resolution warrants 
employment of the procedures. 
 
   
  sec.103.92. Referral of Contested Licensing Application for Alter native 
Dispute Resolution Procedures. 
 
  (a) Licensing application. In a licensing application for which a contested 
case hearing has been requested, but has not yet been called, the executive 
director may seek to resolve the matter by any alternative dispute resolution 
procedure deemed appropriate. In a contested licensing application for which a 
notice of contested case hearing has been issued, the board or the hearing 
examiner may refer the matter for use of alternative dispute resolution 
procedures on its own motion or pursuant to a motion from the parties to the 
hearing. Appropriate dispute resolution procedures may include, but are not 
limited to, those applied to resolve matters in the courts of this state, except 
that the executive director or the board can not be required to adopt any 
agreement arising out of alternative dispute resolution procedures. 
   
  (b) Appointment of mediator. 
 
  (1)  For each contested matter which has been referred for resolution through 
alternative dispute resolution procedures, the alternative dispute resolution 
coordinator shall assign a mediator, from the pool of mediators employed by the 
board, to facilitate the informal disposition of such contested matter. The 
alternative dispute resolution coordinator may assign a substitute or additional 
mediator to a proceeding without the necessity of duplicating any duty or 
function performed by the previous mediator. 
   
  (2) A mediator who is not an employee of the board may be used for the 
alternative dispute resolution procedures provided that: 
 
  (A) the parties unanimously agree to use an outside mediator; 
   
  (B) the parties unanimously agree to the selection of the particular person to 
serve as the outside mediator; 
   
  (C) the person (or the board) that referred the matter for alternative dispute 
resolution procedures agrees to the substitution and selection; and 
   
  (D) the outside mediator agrees to be subject to the direction of the board's 
alternative dispute resolution coordinator and also subject to all time limits 
imposed by the executive director, the hearing examiner, the board, statute, or 
regulation. 
     
  (3) Whenever an outside mediator is used, the following shall apply. 
 
  (A) Any governmental subdivision or entity that is a party to the hearing 
shall not be required to pay for the outside mediator. 
   
  (B) Unless otherwise agreed upon by the parties, the costs for the services of 
the outside mediator shall be apportioned equally among those parties not 
otherwise exempted by this section. 
   
  (C) Payment for the services of the outside mediator shall be made by the 
affected parties directly to the mediator. 
       
  (c) Mediator pool: qualifications. 
 
  (1)  The board shall establish a pool of mediators to resolve contested 
matters through alternative dispute resolution procedures. 
 
  (A) To the extent practicable, each mediator shall receive 40 hours of formal 
training in alternative dispute resolution procedures through programs approved 
by the alternative dispute resolution coordinator. 
   
  (B) Other individuals may serve as mediators on an ad hoc basis in light of 
particular skills or experience which will facilitate the resolution of 
individual contested matters. 
     
  (2) The person selected to mediate a contested matter shall have no connection 
with the contested matter other than in the role of mediator. 
 
       
  sec.103.93. Time Periods. 
 
  (a) The mediator in a contested matter for which notice of contested case 
hearing has not been issued shall determine a reasonable time period (generally 
no more 30 days) during which alternative dispute resolution procedures shall be 
conducted. 
   
  (b) The mediator in a contested matter for which notice of contested case 
hearing has been issued shall conduct alternative dispute resolution procedures 
pursuant to a schedule established by the board or hearing examiner which shall 
not exceed 14 days in length. The hearing examiner may, with the consent of all 
parties to the hearing and the mediator, extend the alternative dispute 
resolution procedures for a period not to exceed an additional 14 days. 
 
     
  sec.103.94. Confidentiality of Communications in Alternative Dispute 
Resolution Procedures. 
 
  (a) Except as provided in subsections (c)-(e) of this section, a communication 
relating to the subject matter made by a participant in an alternative dispute 
resolution procedure is confidential, is not subject to disclosure, and may not 
be used as evidence in any further proceeding. 
   
  (b) Any notes or record made of an alternative dispute resolution procedure 
are confidential, and the participants, including the mediator, may not be 
required to testify in any proceedings relating to or arising out of the 
alternative dispute resolution procedures or be subject to process requiring 
disclosure of confidential information or data relating to or arising out of the 
alternative dispute resolution procedures. 
   
  (c)  An oral communication or written material used in or made a part of an 
alternative dispute resolution procedure is admissible or discoverable, if it is 
admissible or discoverable independent of the alternative dispute resolution 
procedures. 
   
  (d) Participation in the alternative dispute resolution procedures does not 
preclude a person from being subject to process or being required to testify 
regarding any matters for which process or testimony could be required 
independent of the alternative dispute resolution procedures. 
   
  (e) If this section conflicts with other legal requirements for disclosure of 
communications or materials, the issue of confidentiality may be presented to 
the hearing examiner to determine in camera, whether the facts, circumstances, 
and the context of the communications or materials sought to be disclosed 
warrant a protective order of the hearing examiner or whether the communications 
or materials are subject to disclosure. 
   
  (f) The mediator may not communicate with the presiding hearing examiner or 
any Board member, directly or indirectly, on any aspect of alternative dispute 
resolution negotiations which are deemed confidential by this section. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on October 29, 1992. 
 TRD-9214752 
  Lane Hartsock 
 Deputy Director, Air Quality Planning 
 Texas Air Control Board 
    Proposed date of adoption: February 12, 1993 
 For further information, please call: (512) 908-1451 
         
                 Part IX. Texas Water Commission 
  
  The following proposal submitted by the Texas Water Commission will be 
serialized beginning in the November 13, 1992, issue of the Texas Register.<ol> 
The earliest date of adoption is December 5, 1992. 
   Chapter 331. Underground Injection Control 
  
  Subchapter I. Financial Responsibility 
 
  31 TAC sec.331.147 (new) 
           
  Title 34. Public Finance 
 Part I. Comptroller of Public Accounts 
  Chapter 3. Tax Administration 
  
  Subchapter O. State Sales and Use Tax 
 
  34 TAC sec.3.331 
 
  The Comptroller of Public Accounts proposes an amendment to sec.3.331, 
concerning joint ownership transfers. The amendment reformats subsections (a) 
and (b) for clarity and adds a new subsection (d) on intercorporate services. 
 Tom Plaut, chief revenue estimator, has determined that for the first five-year 
period the proposed section will be in effect there will be no significant 
revenue impact on the state or local government as a result of enforcing or 
administering the section. 
 Dr. Plaut also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section is providing new information regarding tax responsibilities. This 
section is adopted under the Tax Code, Title 2, and does not require a statement 
of fiscal implications for small businesses. There is no significant anticipated 
economic cost to persons who are required to comply with the proposed section. 
 Comments on the proposal may be submitted to Charles C. Johnstone, Manager, Tax 
Administration Division, P.O. Box 13528, Austin, Texas 78711. 
 The amendment is proposed under the Tax Code, sec.111.002, which provides the 
comptroller with the authority to prescribe, adopt, and enforce rules relating 
to the administration and enforcement of the provisions of the Tax Code, Title 
2. 
 
 
  sec.3.331. <nl>Transfers of Common Interests in Tangible Personal Property; 
Intercorporate Services [Joint Ownership Transfers]. 
 
  (a)  <nl>Sales or use tax is not due when an interest in tangible personal 
property is sold to a purchaser who, either before or after the sale, owns a 
joint or undivided interest in the tangible personal property with the 
seller<ol> [Exempt from the limited sales and use tax are the receipts from the 
sale, lease, and rental of, and the storage, use, or other consumption in this 
state of an interest in tangible personal property wherein the transferee either 
before or after such transfer owns a joint or undivided interest in the property 
transferred with the transferor provided that such transfer is made pursuant to 
a good faith bona fide contractual relationship between the transferor and the 
transferee]. 
   
  (b) In order <nl>for the sale to be exempt,<ol> [to qualify for the exemption, 
the taxpayer must meet] the following requirements  <nl>must be met<ol>: 
 
  (1)  <nl>The seller must have paid sales or use tax on the tangible personal 
property when it was purchased<ol> [At the time of the purchase by the 
transferor of the tangible personal property so transferred, the sales or use 
tax must have been paid]. 
   
  (2) The <nl>sale<ol> [transfer] must be made pursuant to the terms of a good 
faith [bona fide] contractual relationship between the <nl>seller and the 
purchaser<ol> [transferor and the transferee]. <nl>Good faith<ol> ["Bona fide] 
contractual relationship["] <nl>means <ol> [shall mean] a legal relationship 
established between two or more persons created for considerations other than 
the avoidance of the limited sales and use tax. 
   
  (3) It is necessary that the <nl>purchaser <ol> [transferee], either before or 
after <nl>the sale <ol> [such transfer], own a joint or undivided interest in 
the property with the <nl>seller<ol> [transferor]. <nl>The joint <ol> [Joint] 
ownership transfer exemption does not apply to sales between related 
corporations or other entities where the only joint ownership is the ultimate 
ownership of the corporation stock. 
     
  (c) Items which are sold by a joint research and development venture as 
defined by 15 United States Code, sec.4301 to a participating entity in 
connection with the venture are exempt from sales and use tax. 
   
  <nl>(d) Intercorporate services. 
 
  <nl>(1) Sales or use tax is not due on charges for taxable services between 
affiliated corporations which qualify to report their income to the Internal 
Revenue Service on a single consolidated return with other members of the 
affiliated group for the tax year in which the taxable service is provided. 
   
  <nl>(2) For the purposes of this subsection, "affiliated corporation" includes 
a corporation that would be classified as a member of an affiliated group under 
26 United States Code, sec.1504 but for the exclusion provided by that section. 
   
  <nl>(3) The exemption provided by this subsection does not apply to sales of 
tangible personal property between affiliated corporations. Neither does the 
exemption apply to services that were taxable before September 2, 1987. Services 
that were subject to sales and use tax before September 2, 1987, and which are 
taxable when provided among affiliated entities, include: 
 
  <nl>(A) amusement services; 
   
  <nl>(B) cable television services; 
   
  <nl>(C) personal services; 
   
  <nl>(D)  motor vehicle parking and storage; 
   
  <nl>(E) the repair, remodeling, maintenance, or restoration of tangible 
personal property. (See the exception in the Tax Code, sec.151.0101(a)(5)); and 
   
  <nl>(F) telecommunications services. 
     
  <nl>(4)  Tangible personal property that is transferred as an integral part of 
a service exempted under this subsection may not be purchased for resale by the 
providing company. 
   
  <nl>(5) Services that are exempt from sales tax under this subsection may not 
be purchased for resale by the providing company. 
   
  <nl>(6) When a contract contains charges for taxable items and charges for 
services that qualify for exemption under this subsection, the total charge will 
be taxable unless the charge for taxable items is separately stated to the 
customer. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on November 3, 1992. 
 TRD-9214798 
  Martin Cherry 
 Chief, General Law Section 
 Comptroller of Public Accounts 
    Earliest possible date of adoption: December 11, 1992 
 For further information, please call: (512) 463-4028 
         
                   Part III. Teacher Retirement System of Texas 
  Chapter 49. Collection of Debts 
  
  34 TAC sec.sec.49.1-49.7 
 
  The Teacher Retirement System of Texas (TRS) proposes new sec.sec.49.1-49.7, 
concerning the collection of debts owed to the Teacher Retirement System of 
Texas. These are being proposed in order to comply with the requirements set 
forth in Senate Bill 3, First Called Session, 72nd Legislature, requiring these 
rules and procedures to be adopted. These rules were initially promulgated on an 
emergency basis, effective September 1, 1992. 
 The sections are intended to provide general procedures for the collection of 
delinquent accounts owed to the retirement system, to assist in the development 
of in-house collection strategies, and for the referral of collection matters to 
the Office of the Attorney General. 
 Wayne Fickel, TRS Controller, has determined that for the first five-year 
period the sections are in effect there will be no fiscal implications for state 
or local government as a result of enforcing or administering the sections. 
 Mr. Fickel also has determined that for each year of the first five years the 
sections are in effect the public benefit anticipated as a result of enforcing 
the sections will be more efficient debt collection procedures. There will be no 
effect on small businesses. There is no anticipated economic cost to persons who 
are required to comply with the sections as proposed. 
 Comments on the proposal may be submitted to Wayne Blevins, Executive 
Secretary, Teacher Retirement System of Texas, 1000 Red River, Austin, Texas 
78701. 
 The new sections are proposed under the Texas Government Code, sec.825.102, 
which authorizes the Board of Trustees of the retirement system to adopt rules 
for the administration of the funds of the retirement system and for the 
transaction of business of the board. 
 
 
  sec.49.1. Administrative Procedures. <ol> The executive secretary or his 
designee shall develop and maintain procedures for determining whether a 
delinquent obligation is owed to TRS or whether a liability should be 
established by legal or other appropriate procedures. 
 
   
  sec.49.2. Demand Letters. 
 
  (a) The department responsible under the procedures for making such 
determinations shall cause a first demand letter to be sent no later than 30 
days after such determination is made. If no satisfactory response is received 
within 30 days after the date of the first letter, the department shall refer 
the matter to the legal department which shall cause a second demand letter to 
be sent not later than 60 days after the date of the first demand letter. 
   
  (b) Demand letters should be mailed in envelopes that contain the statement 
"address correction requested" and shall comply with the applicable requirements 
for address verification in 39 Code of Federal Regulations, sec.265.6. Second 
demand letters shall state, where applicable, that the delinquent obligation 
will be referred to the attorney general if it is not resolved in manner 
satisfactory to TRS. 
 
     
  sec.49.3. Referrals of Matters to Attorney General for Collection. 
 
  (a) The executive secretary or his designee shall decide whether to refer a 
matter to the attorney general for collection. This decision should generally be 
made and any referral made no later than 60 days after the second demand letter 
is sent. 
   
  (b) Generally TRS will not refer for collection matters in which the amount to 
be recovered would be less than the total sum of expense to the agency and the 
attorney general for travel, employee time, court costs, and other relevant 
expenses. The executive secretary or his designee may from time to time 
establish a minimum dollar amount for claims to be referred for collection. 
   
  (c) The executive secretary or his designee may for policy reasons, actuarial 
reasons, or other good cause determine that a matter should be referred to the 
attorney general even if the amount to be recovered does not exceed the minimum 
established pursuant to this rule. 
   
  (d) In making a determination of whether to refer a matter to the attorney 
general the executive secretary or his designee shall consider: 
 
  (1) expense of further collection procedures; 
   
  (2) the size of the debt; 
   
  (3) the existence of any security; 
   
  (4) the possibility of collection or satisfaction of the debt through other 
means; 
   
  (5) the likelihood of collection; and 
   
  (6) any other relevant factors established by the executive secretary in his 
procedures. 
     
  (e) Before referring a matter to the attorney general the executive secretary 
or his designee shall: 
 
  (1) verify the debtor's address and telephone number; 
   
  (2) conclude that the obligation is not uncollectible; and 
   
  (3)  transmit no more than two demand letters to the debtor at the debtor's 
verified address. 
 
       
  sec.49.4. Extension of Deadlines. 
 
  (a) Where address corrections are provided by the United States Postal 
Service, TRS shall send the letter to the correct address and the deadlines 
provided in this chapter shall be tolled accordingly. 
   
  (b) Where determinations of obligations or indebtedness are subject to 
administrative appeal procedures, the deadlines provided in this chapter shall 
be tolled during the pendency of such procedures. 
 
     
  sec.49.5. Records.  The executive secretary shall cause records to be kept 
identifying all persons or entities liable for delinquent obligations and the 
correct physical address of the debtor's business and/or residence, if 
available. Such records should also contain collection histories on each debtor 
showing, where applicable, attempted contacts with the debtor; efforts to locate 
the debtor; efforts to locate the assets of the debtor and the results of such 
efforts; state warrants that may be issued to the debtor; security interests 
that TRS has against any assets of the debtor; and any other information 
considered by TRS to be relevant. 
 
   
  sec.49.6. Supplemental and Alternative Collection Procedures.  At the time 
collection attempts are being made, TRS personnel should consider supplemental 
or alternative debt collection procedures including warrant hold procedures 
authorized by the Texas Government Code, sec.403.055 and the filing of liens. 
Except as otherwise provided in TRS policy, no lien securing the indebtedness or 
warrant hold should be released without the approval of the attorney 
representing the agency. 
 
   
  sec.49.7. Exceptions. 
 
  (a) Certain obligations to TRS shall be exempt from the procedures provided in 
this rule except as provided by the executive secretary. These obligations are: 
 
  (1) obligations arising from the investments of the system, which shall be 
governed by the TRS investment policy and procedures; 
   
  (2) state contributions; 
   
  (3)  other obligations for which a statute provides alternative collection 
procedures, such as: 
 
  (A) employer reimbursement or assumption of state contributions; 
   
  (B) unpaid member contributions; 
   
  (C)  installment payments for special service credit; and 
   
  (D)  overpayments which TRS concludes may appropriately be recovered by 
actuarial adjustments to benefits; 
     
  (4) collections made by third parties pursuant to legally authorized 
contracts. 
     
  (b) For good cause the executive secretary may make exceptions to the 
procedures in this chapter. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on November 3, 1992. 
 TRD-9214840 
  Wayne Blevins 
 Executive Secretary 
 Teacher Retirement System of Texas 
    Earliest possible date of adoption: December 11, 1992 
 For further information, please call: (512) 370-0524 
         
                 
  TITLE 40. SOCIAL SERVICES AND ASSISTANCE 
 Part I. Texas Department of Human Services 
  Chapter 3. Income Assistance Services 
  
  Subchapter G. Resources 
 
  The Texas Department of Human Services (DHS) proposes amendments to sec.3. 704 
and sec.3.902 concerning types of income and resources that are exempt in 
determining eligibility for aid to families with dependent children (AFDC) and 
Food Stamp Program benefits, in its income assistance services rule chapter. The 
purpose for the amendments is to exclude income and resources that are exempt by 
federal law (the Seneca Nation Settlement Act of 1990, Public Law 101-503) for 
Native Americans who receive AFDC and/or Food Stamps. The exclusions are 
mandated by federal law to be effective January 1, 1993. 
 Burton F. Raiford, commissioner, has determined that for the first five-year 
period the proposed amendments will be in effect there will be no fiscal 
implications for state or local governments as a result of enforcing or 
administering the sections. 
 Mr. Raiford also has determined that for each year of the first five years the 
amendments are in effect the public benefit anticipated as a result of enforcing 
the amendments will be that Native Americans of the Seneca Nation in Texas will 
receive the income and resource exclusions mandated by federal law. There will 
be no effect on small businesses. There is no anticipated economic cost to 
persons who are required to comply with the proposed amendments. 
 Questions about the content of the proposal may be directed to Rita King at 
(512) 450-4148 in DHS's Client Self-Support Services. Comments on the proposal 
may be submitted to Nancy Murphy, Agency Liaison, Policy and Document Support-
275, Texas Department of Human Services E-503, P.O. Box 149030, Austin, Texas 
78714-9030, within 30 days of publication in the Texas Register. 
   
  40 TAC sec.3.704 
 
  The amendment is proposed under the Human Resources Code, Title 2, Chapters 22 
and 31, which provides the department with the authority to administer public 
assistance and financial assistance programs. 
 
 
  sec.3.704. Types. 
 
  (a) Aid to families with dependent children (AFDC). The following are 
countable resources in AFDC. 
 
  (1)  Income-producing property. The Texas Department of Human Services (DHS) 
counts any personal possession retained for business purposes as an available 
resource. 
   
  (2)-(6) (No change.) 
     
  (b) Aid to families with dependent children exclusions. Exclusions from 
resources in AFDC are. 
 
  (1) -(9) (No change.) 
   
  (10) Resources exempted by federal law. DHS exempts government payments by the 
Individual and Family Grant Program or the Small Business Administration 
provided to rebuild a home or replace personal possessions damaged in a 
disaster, if the household is subject to legal sanction if the funds are not 
used as intended. DHS exempts payments made under the following acts: 
 
  (A)-(E) (No change.) 
   
  (F)  <nl>Seneca Nation Settlement Act of 1990 (Public Law 101-503). 
   
  <nl>(G)<ol>[(F)] DHS exempts payments from Indian lands held jointly with the 
tribe or land that can be sold only with approval of the Bureau of Indian 
Affairs; 
   
  <nl>(H)<ol>[(G)] DHS exempts funds distributed by the Secretary of the 
Interior, as stipulated in Public Law 98-64, sec.2 (concerning Tribal Trust 
Funds) and in Public Law 97-458, sec.4 (concerning Judgement Funds Granted due 
to a Claim Against the United States); 
   
  <nl>(I)<ol>[(H)]  DHS exempts reimbursements from the Uniform Relocation 
Assistance and Real Properties Acquisition Policy Act of 1970; 
   
  <nl>(J)<ol>[(I)] DHS exempts payments or allowances made under any federal law 
for the purpose of energy assistance. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on October 29, 1992. 
 TRD-9214612 
  Nancy Murphy 
 Agency Liaison, Policy and Document Support 
 Texas Department of Human Services 
    Proposed date of adoption: January 1, 1993 
 For further information, please call: (512) 450-3765 
         
                 
  Subchapter I. Income 
 
  40 TAC sec.3.902 
 
  The amendment is proposed under the Human Resources Code, Title 2, Chapters 22 
and 31, which provides the department with the authority to administer public 
assistance and financial assistance programs. 
 
 
  sec.3.902. Types. 
 
  (a) Aid to Families with dependent children. The Texas Department of Human 
Services (DHS) counts the following as income: 
 
  (1)-(28) (No change.) 
     
  (b) Aid to families with dependent children. Exclusions from income for AFDC 
are: 
 
  (1)-(9) (No change.) 
   
  (10) native and Indian claims. DHS exempts payments made under the Alaska 
Native Claims Settlement Act (Public Law 92-203, as amended by Public Law 100-
241)<nl>, Seneca Nation Settlement Act of 1990 (Public Law 101-503), <ol>and 
funds distributed or held in trust by the Indian Claims Commission for members 
of Indian tribes under Public Laws 92-254; 94-540; 94-114,  s6; 95-433; 96-420; 
98-64, sec.2; and 93-134, sec.7 (as amended by Public Law 97.458, sec.4); 
   
  (11)-(18)(No change.) 
     
  (c)-(d) (No change.) 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on October 29, 1992. 
 TRD-9214613 
  Nancy Murphy 
 Agency Liaison, Policy and Document Support 
 Texas Department of Human Services 
    Proposed date of adoption: January 1, 1993 
 For further information, please call: (512) 450-3765 
         
                   
  TITLE 43. TRANSPORTATION 
 Part I. Texas Department of Transportation 
  Chapter 1. Administration 
  
  Public Meetings and Hearings 
 
  43 TAC sec.1.1, sec.1.2 
 
  (Editor's note: The text of the following sections proposed for repeal will 
not be published. The sections may be examined in the offices of the Texas 
Department of Transportation or in the Texas Register office, Room 245, James 
Earl Rudder Building, 1019 Brazos Street, Austin.) 
   
  The Texas Department of Transportation proposes the repeal of sec.1.1 and 
sec.1.2, concerning public meetings and hearings. Repeal of these sections is 
necessary because of the contemporaneous proposed adoption of new sec.sec.1.3-
1.5, concerning public meetings and hearings, which incorporate the provisions 
of the repealed sections as rewritten and expanded to further clarify and update 
policies of the Texas Transportation Commission and the department, and to 
comply with Texas Civil Statutes, Article 6665a. Article 6665a, as added by 
Senate Bill 352, 72nd Legislature, requires the commission to develop and 
implement policies that provide the public with a reasonable opportunity to 
appear before the commission and to speak on any issue under the jurisdiction of 
the commission. 
 Byron C. Blaschke, P.E., deputy executive director, has determined that for the 
first five-year period the repeals are in effect there will be no fiscal 
implications for state or local government as a result of enforcing or 
administering the repeals. 
 Mr. Blaschke has certified that there will be no significant impact on local 
economies or overall employment as a result of enforcing or administering the 
repeals. 
 Mr. Blaschke also has determined that for each year of the first five years the 
repeals are in effect the public benefit anticipated as a result of enforcing 
the repeals will be enhanced public awareness and understanding of the 
organizational structure of the commission and the department and of their 
respective functions and responsibilities. There will be no effect on small 
businesses. There is no anticipated economic cost to persons who are required to 
comply with the repeals as proposed. 
 Pursuant to the Administrative Procedure and Texas Register Act, Texas Civil 
Statutes, Article 6252-13a, sec.5, the Texas Department of Transportation will 
conduct a public hearing to receive comments concerning the proposed repeals and 
new sections. The public hearing will be held at 9 a.m. on Thursday, December 3, 
1992, in the first floor hearing room of the Dewitt C. Greer State Highway 
Building, 125 East 11th Street, Austin. 
 Those desiring to make comments or presentations may register starting at 8: 30 
a.m. Any interested person may appear and offer oral or written comments, 
however, questioning of those making presentations will be reserved exclusively 
to the presiding officer as may be necessary to ensure a complete record. While 
any person with pertinent comments will be granted an opportunity to present 
them during the course of the hearing, the presiding officer reserves the right 
to restrict testimony in terms of time and repetitive content. Organizations, 
associations, or groups are encouraged to present their commonly held views, and 
same or similar comments, through a representative member where possible. 
 Written comments on the proposed rules may be submitted to Robert E. Shaddock, 
General Counsel, Texas Department of Transportation, 125 East 11th Street, 
Austin, Texas 78701-2383. All comments should be submitted no later than 5 p.m. 
on December 11, 1992. 
 The repeals are proposed under Texas Civil Statutes, Articles 6666 and 6665a, 
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, to implement policies that provide the public with 
a reasonable opportunity to appear before the commission and to speak on any 
issue under the jurisdiction of the commission. 
 
 
  sec.1.1. Appearance Before Commission. 
 
   
  sec.1.2. Extraordinary Public Hearings. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on October 30, 1992. 
 TRD-9214761 
  Diane L. Northam 
 Legal Administrative Assistant 
 Texas Department of Transportation 
    Earliest possible date of adoption: December 11, 1992 
 For further information, please call: (512) 463-8630 
         
           
  Organization and Responsibilities 
 
  43 TAC sec.1.1, sec.1.2 
 
  The Texas Department of Transportation proposes new sec.1.1 and sec.1.2, 
concerning the organization of the Texas Transportation Commission and the Texas 
Department of Transportation. 
 Texas Civil Statutes, Article 6665, as amended by Senate Bill 352, 72nd 
Legislature, require the commission to develop and implement policies that 
clearly define the respective responsibilities of the commission and the staff 
of the department. The commission has determined that it is also desirable to 
clearly define the organizational structure of the commission and the 
department. 
 Section 1.1, Texas Transportation Commission, lists the respective 
responsibilities of the commission, each member, and the commissioner of 
transportation. Section 1.2, Texas Department of Transportation, prescribes: the 
qualifications and responsibilities of the executive director of the department; 
the responsibilities of the staff of the department; the structure and 
organization of the department into operating divisions and geographic 
districts; and the policy, purpose, and responsibilities of the department's 
Motor Vehicle Board. 
 Byron C. Blaschke, P.E., deputy executive director, has determined that for the 
first five-year period the sections are in effect there will be no fiscal 
implications for state or local government as a result of enforcing or 
administering the sections. 
 Mr. Blaschke has certified that there will be no significant impact on local 
economies or overall employment as a result of enforcing or administering the 
sections. 
 Mr. Blaschke also has determined that for each year of the first five years the 
sections are in effect the public benefit anticipated as a result of enforcing 
the sections will be enhanced public awareness and understanding of the 
organizational structure of the commission and the department and of their 
respective functions and responsibilities. There will be no effect on small 
businesses. There is no anticipated economic cost to persons who are required to 
comply with the sections as proposed. 
 Pursuant to the Administrative Procedure and Texas Register Act, Texas Civil 
Statutes, Article 6252-13a, sec.5, the Texas Department of Transportation will 
conduct a public hearing to receive comments concerning the proposed new 
sections. The public hearing will be held at 9 a.m. on Wednesday, December 2, 
1992, in the first floor hearing room of the Dewitt C. Greer State Highway 
Building, 125 East 11th Street, Austin. 
 Those desiring to make comments or presentations may register starting at 8: 30 
a.m. Any interested person may appear and offer oral or written comments, 
however, questioning of those making presentations will be reserved exclusively 
to the presiding officer as may be necessary to ensure a complete record. While 
any person with pertinent comments will be granted an opportunity to present 
them during the course of the hearing, the presiding officer reserves the right 
to restrict testimony in terms of time and repetitive content. Organizations, 
associations, or groups are encouraged to present their commonly held views, and 
same or similar comments, through a representative member where possible. 
Comments on the proposed text should include appropriate citations to sections, 
subsections, paragraphs, etc., for proper reference. Any suggestions or requests 
for alternative language or other revisions in the proposed text should be 
submitted in written form. 
 Written comments on the proposed rules may be submitted to Robert E. Shaddock, 
General Counsel, Texas Department of Transportation, 125 East 11th Street, 
Austin, Texas 78701-2383. All comments should be submitted no later than 5 p.m. 
on December 11, 1992. 
 The new sections are proposed under Texas Civil Statutes, Articles 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, and Texas Civil Statutes, Article 6665, which require the 
commission to develop and implement policies that clearly define the respective 
responsibilities of the commission and the staff of the department. 
 
 
  sec.1.1. Texas Transportation Commission. 
 
  (a) Commission. 
 
  (1) The Texas Department of Transportation is governed by the Texas 
Transportation Commission, consisting of three members appointed by the governor 
with the advice and consent of the senate. 
   
  (2) The governor designates one member of the commission to serve as the chair 
who is known as the commissioner of transportation. 
     
  (b) Commission responsibilities. 
 
  (1) The Texas Transportation Commission, with the advice and recommendations 
of the executive director, will: 
 
  (A) formulate plans and policies for the location, construction, and 
maintenance of a comprehensive system of state highways and public roads; 
   
  (B) lay out, construct, maintain, and operate a modern state highway system; 
   
  (C)  provide for a statewide transportation plan containing all modes of 
transportation, including highways and turnpikes, aviation, mass transportation, 
railroads and high-speed railroads, and water traffic; 
   
  (D) award contracts necessary for the improvement of the state highway system, 
as provided by Texas Civil Statutes, Article 6674h et seq.; 
   
  (E)  encourage, foster, and assist in the development of public and mass 
transportation in the state; 
   
  (F) encourage, foster, and assist in the development of aeronautics in the 
state and encourage, aid, and assist in the establishment of airports, 
airstrips, and air navigational facilities in the state; 
   
  (G) fulfill the local sponsorship requirements of the Gulf Intracoastal 
Waterway as agent for the state; 
   
  (H) provide for the registration and titling of vehicles operating on the 
public roads; 
   
  (I)  approve the location and environmental review of turnpike projects 
constructed by the Texas Turnpike Authority, and the use of the Texas Turnpike 
Authority feasibility study fund; 
   
  (J) approve a toll project constructed by a private entity or corporation if 
the project connects to the state highway system; 
   
  (K) approve the construction of a toll project by a governmental or private 
entity other than a county with a population of more than 2.4 million people, if 
it is to become a part of the state highway system, and review any bonds of a 
county, municipality, or political subdivision (other than a county with a 
population greater than 2.1 million people) or any nonprofit corporation acting 
on behalf of a county, municipality, or political subdivision, payable in whole 
or in part from revenues derived from the ownership or operation of a toll 
project; 
   
  (L) appoint an internal auditor for the department who shall report directly 
to the commission on the conduct of departmental affairs; 
   
  (M)  establish and make public proclamation of all rules and regulations for 
the conduct of the work of the department as may be deemed necessary; 
   
  (N)  divide the department into geographical districts; 
   
  (O) carry out such transportation functions as may be delegated by the 
governor pursuant to applicable federal law; 
   
  (P) establish policy necessary to carry out the duties and functions of the 
department and the commission; and 
   
  (Q)  perform other duties required by law. 
     
  (2) The commission may, consistent with applicable law, delegate one or more 
of the functions listed under paragraph (1) of this subsection to the executive 
director, other than those functions under subparagraphs (D) and (J), and those 
functions under subparagraph (O) that are delegated solely to the commission. 
The executive director may further delegate such functions to one or more 
employees of the department. 
     
  (c) Members. Each member of the commission shall: 
 
  (1) execute a bond payable to the state in the sum of $5,000, to be approved 
by the governor, and conditioned upon the faithful performance of the member's 
duties; 
   
  (2) attend at least half of the regularly scheduled meetings that the member 
is eligible to attend during a calendar year unless the absence is excused by 
majority vote of the commission; and 
   
  (3)  serve ex officio as a member of the Board of Directors of the Texas 
Turnpike Authority. 
     
  (d) Commissioner of transportation. 
 
  (1)  The commissioner of transportation is the chair of the commission and, 
with the advice and recommendations of the executive director and his or her 
staff, shall: 
 
  (A) represent the department in dealings with the governor; 
   
  (B) report at least quarterly to the governor on the state of affairs at the 
department; 
   
  (C) report suggestions made by the governor for departmental operations to the 
commission; 
   
  (D) report to the governor regarding privatization efforts, including any 
legislative mandates, in order to maximize the efficiency of departmental 
operations; 
   
  (E) develop recommendations for the organization of the department to be 
submitted to the commission and to the governor and the Legislative Budget Board 
prior to the convening of each session of the legislature; 
   
  (F)  periodically review the department's organizational structure and submit 
recommendations for revisions to that structure to the governor, the commission, 
and the Legislative Budget Board; 
   
  (G) designate an employee or employees of the department as a civil rights 
division of the department and receive regular reports from that division on the 
department's efforts to comply with civil rights legislation and administrative 
rules; 
   
  (H) serve as the departmental liaison with the governor and the Office of 
State-Federal Relations in order to maximize federal funding for highway, public 
transportation, and aviation purposes; 
   
  (I) serve ex officio as a member of the Board of Directors of the Texas High-
Speed Rail Authority; and 
   
  (J) perform any other duties assigned by law. 
     
  (2) The commissioner of transportation may, consistent with applicable law, 
delegate one or more of the functions listed under paragraph (1) of this 
subsection to the executive director, who in turn may further delegate such 
functions to one or more employees of the department. 
 
       
  sec.1.2. Texas Department of Transportation. 
 
  (a) Executive director. 
 
  (1) The commission will elect an executive director for the department who 
shall be a registered professional engineer in the State of Texas experienced 
and skilled in transportation planning, development, construction, and 
maintenance. The executive director, as the chief executive officer of the 
department, is authorized to administer the day-to-day operations of the 
department. The executive director may hold his or her position until removed by 
the commission. 
   
  (2) To assist in discharging the duties and responsibilities of the executive 
director, the executive director may organize, appoint, and retain such 
administrative staff as he or she deems appropriate. In accordance with 
standards developed by the governor and the Legislative Budget Board, the 
executive director may designate the title, number, and compensation rate of 
exempt positions other than those listed in the schedule of exempt positions in 
the General Appropriations Act. 
   
  (3) The executive director shall: 
 
  (A)  execute a bond payable to the state in such sum as the commission may 
deem necessary, to be approved by the commission, and conditioned upon the 
faithful performance of his or her duties; 
   
  (B) attend commission meetings and act with the commission in an advisory 
capacity; 
   
  (C) submit quarterly, annually, and biennially to the commission detailed 
reports of the progress of public road construction, public and mass 
transportation development, and statement of expenditures; 
   
  (D) hire, promote, assign, re-assign, transfer, and, consistent with 
applicable law and policy, terminate staff necessary to accomplish the roles and 
missions of the department; 
   
  (E)  notify the commissioner of transportation of grounds for removal of a 
commission member if having knowledge that a potential ground for removal 
exists; and 
   
  (F) perform other responsibilities as required by law or assigned by the 
commission. 
     
  (4) The executive director may, consistent with applicable law, delegate one 
or more of the functions listed under paragraph (3)(C)-(F) of this subsection to 
the staff of the department. 
     
  (b) Department staff. The staff of the Texas Department of Transportation, 
under the direction of the executive director, is responsible for: 
 
  (1) implementing the policies and programs of the commission by: 
 
  (A) formulating and applying operating procedures; and 
   
  (B)  prescribing such other operating policies and procedures as may be 
consistent with and in furtherance of the roles and missions of the department; 
     
  (2) providing the commissioner of transportation and members of the commission 
administrative support necessary to perform their respective duties and 
responsibilities, including: 
 
  (A) assigning staff to assist members of the commission; 
   
  (B) providing necessary office space and equipment; 
   
  (C) furnishing in-house legal counsel; 
   
  (D)  providing all information and documents necessary for the commission to 
effectively perform its responsibilities; and 
   
  (E) preparing an agenda, providing notice, and transcribing commission 
meetings and hearings as required by the Texas Open Meetings Act, Texas Civil 
Statutes, Article 6252-17; and 
     
  (3) performing all other duties as prescribed by law or as assigned by the 
commission. 
     
  (c) Divisions. The executive director shall organize the department into 
headquarters operating divisions reflecting the various functions and duties 
assigned to the department, and shall designate a division director who shall 
administer each division. 
   
  (d) Districts. 
 
  (1) District office. The department is divided into geographical districts, 
each containing one district office. Each district is administered by a district 
engineer who is a registered professional engineer and is appointed by the 
executive director. 
   
  (2) Area office. A district contains one or more area offices, each of which 
is responsible for carrying out the department's primary functions at the local 
level for a designated geographical area. Each area office is normally 
administered by an area engineer who shall be a registered professional 
engineer. 
   
  (3) Project office. A district may contain one or more project offices, which 
is normally responsible for a specific project within an area. 
     
  (e) Motor Vehicle Board. 
 
  (1) Membership. The Motor Vehicle Board of the Texas Department of 
Transportation (board) consists of six persons appointed by the governor with 
the advice and consent of the senate. 
   
  (2) Board policy and purpose. In accordance with Texas Civil Statutes, Article 
4413(36), the policy and purpose of the board is to insure a sound system of 
distributing and selling new motor vehicles through licensing and regulating 
manufacturers, distributors, converters, and dealers of those vehicles, and 
enforcing the Texas Motor Vehicle Commission Code as to other persons, in order 
to provide for compliance with manufacturer's warranties, and to prevent frauds, 
unfair practices, discriminations, impositions, and other abuses of the citizens 
of the state. 
   
  (3) Board responsibilities. In accordance with Texas Civil Statutes, Article 
4413(36a), the board shall: 
 
  (A) exercise the authority and perform the duties placed on the board by law; 
and 
   
  (B) advise the department on: 
 
  (i) matters arising under the Texas Motor Vehicle Commission Code and other 
matters relating to the licensing and regulation of motor vehicle manufacturers, 
distributors, converters, and dealers; and 
   
  (ii) the personnel, budgetary, equipment, data processing, and facility and 
property needs of the board and the Motor Vehicle Division of the department. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on October 30, 1992. 
 TRD-9214762 
  Diane L. Northam 
 Legal Administrative Assistant 
 Texas Department of Transportation 
    Earliest possible date of adoption: December 11, 1992 
 For further information, please call: (512) 463-8630 
         
                   
  Public Meetings and Hearings 
 
  43 TAC sec.sec.1.3-1.5 
 
  The Texas Department of Transportation proposes new sec. s1.3-1.5, concerning 
public meetings and hearings. The new sections replace existing sec.1.1 and 
sec.1.2, concerning public meetings and hearings, which are simultaneously being 
repealed. 
 Texas Civil Statutes, Article 6665a, as added by Senate Bill 352, 72nd 
Legislature, 1991, require the commission to develop and implement policies that 
provide the public with a reasonable opportunity to appear before the commission 
and to speak on any issue under the jurisdiction of the commission. 
 The commission has determined that it is necessary to propose the permanent 
adoption of new sec.sec.1.3-1.5, which incorporate the provisions of the 
repealed sections as rewritten and expanded to further clarify and update 
commission policies, and to comply with new Article 6665a. 
 Section 1.3, Commission Meetings, provides that the commission will: hold at 
least one regular business meeting each month; hold special or emergency 
meetings called by the commissioner of transportation; be chaired by the 
commissioner of transportation; and act only by majority vote. Section 1.4, 
Public Access to Commission Meetings, provides: for persons to speak on posted 
agenda items; for persons to request the department to add an item to the 
commission agenda; for delegations to appear before the commission on 
transportation projects; for persons to speak on any matter under the 
commission's jurisdiction during an open-comment period; that persons with 
special communication or accommodation needs may contact the department, which 
will make every reasonable effort to accommodate; for notice of commission 
meetings in accordance with the Open Meetings Act; guidelines for meeting 
attendees to assure proper decorum, opportunity to be heard, and orderly 
proceedings; and for the commissioner of transportation to waive requirements of 
this section in the public interest if necessary for the performance of the 
responsibilities of the commission or the department. Section 1.5, Public 
Hearings: lists the purposes for which public hearings are held; authorizes the 
executive director or an employee to conduct certain hearings; provides 
guidelines for hearing attendees to assure proper decorum, opportunity to be 
heard, and orderly proceedings; provides that persons with special communication 
or accommodation needs may contact the department, which will make every 
reasonable effort to accommodate; and provides that the department, in an area 
with a substantial spanish speaking population, will provide notice of hearings 
in both English and Spanish, and spanish translation upon request. 
 Byron C. Blaschke, P.E., deputy executive director, has determined for the 
first five-year period the sections are in effect that any fiscal implications 
for the state as a result of enforcing or administering the proposed new 
sections are negligible, except for the provisions relating to disability 
accommodations. The fiscal implications of these provisions cannot be 
determined, and will depend on the nature and number of requests for special 
accommodations. There will be no fiscal implications for local government. 
 Mr. Blaschke has certified that there will be no significant impact on local 
economies or overall employment as a result of enforcing or administering the 
section. 
 Mr. Blaschke also has determined that for each year of the first five years the 
sections are in effect, the public benefit anticipated as a result of enforcing 
the sections will be increased public access to the commission, thereby 
maximizing public participation in the decision-making process, while ensuring 
orderly and effective conduct of meetings and hearings. There will be no effect 
on small businesses. There is no anticipated economic cost to persons who are 
required to comply with the sections as proposed. 
 Pursuant to the Administrative Procedure and Texas Register Act, Texas Civil 
Statutes, Article 6252-13a, sec.5, the Texas Department of Transportation will 
conduct a public hearing to receive comments concerning the proposed new 
sections. The public hearing will be held at 9 a.m. on Thursday, December 3, 
1992, in the first floor hearing room of the Dewitt C. Greer State Highway 
Building, 125 East 11th Street, Austin. 
 Those desiring to make comments or presentations may register starting at 8: 30 
a.m. Any interested person may appear and offer oral or written comments, 
however, questioning of those making presentations will be reserved exclusively 
to the presiding officer as may be necessary to ensure a complete record. While 
any person with pertinent comments will be granted an opportunity to present 
them during the course of the hearing, the presiding officer reserves the right 
to restrict testimony in terms of time and repetitive content. Organizations, 
associations, or groups are encouraged to present their commonly held views, and 
same or similar comments, through a representative member where possible. 
Comments on the proposed text should include appropriate citations to sections, 
subsections, paragraphs, etc., for proper reference. Any suggestions or requests 
for alternative language or other revisions in the proposed text should be 
submitted in written form. 
 Written comments on the proposed new sections may be submitted to Robert E. 
Shaddock, General Counsel, Texas Department of Transportation, 125 East 11th 
Street, Austin, Texas 78701-2383. 
 The new sections are proposed under Texas Civil Statutes, Articles 6666 and 
6665a, 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, and to implement policies that provide the public 
with a reasonable opportunity to appear before the commission and to speak on 
any issue under the jurisdiction of the commission. 
 
 
  sec.1.3. Commission Meetings. 
 
  (a) The Texas Transportation Commission will hold at least one regular 
business meeting each calendar month and, subject to the call of the 
commissioner of transportation, any special or emergency meetings necessary for 
the performance of the commission's duties. Each meeting will be conducted in 
accordance with applicable provisions of the Open Meetings Act, Texas Civil 
Statutes, Article 6252-17. 
   
  (b) The commissioner of transportation, or, in his or her absence, the acting 
chair, shall preside at all commission meetings. 
   
  (c) The commission may act only by majority vote of its membership. 
 
     
  sec.1.4. Public Access to Commission Meetings. 
 
  (a) Purpose. This section provides policies and procedures governing public 
access to the commission in order to facilitate that access and maximize public 
participation in the decision-making process, while ensuring orderly and 
effective conduct of meetings. 
   
  (b) Posted agenda items. A person may speak before the commission on any 
matter on a posted agenda, other than a presentation by a delegation under 
subsection (d) of this section, by submitting a request, in a form and manner as 
prescribed by the department, prior to the matter being taken up by the 
commission. A person speaking before the commission on an agenda item will be 
allowed an opportunity to speak: 
 
  (1) prior to a vote by the commission on the item; and 
   
  (2)  for a maximum of three minutes, except as provided in subsection (h)(6) 
of this section. 
     
  (c) New agenda items. 
 
  (1) A person, other than a delegation under subsection (d) of this section, 
may request the department to add an item to the commission agenda by 
submitting, no less than 20 days prior to the date which has been set for the 
next meeting, the following information: 
 
  (A) the name and address of the person making the request; 
   
  (B) a clear and concise statement of the subject of the proposed agenda item; 
and 
   
  (C) a brief summary of the action sought. 
     
  (2) If the department determines that the proposed item is within the 
jurisdiction of the commission, the matter will be placed on the posted agenda 
for the next or a subsequent meeting, consistent with available time. If the 
proposed item concerns a matter that has appeared on the posted agenda of a 
commission meeting during the previous six months, the request may be denied or 
deferred for consideration at the discretion of the department and the 
commission. 
     
  (d) Delegations. 
 
  (1) Petition. A delegation consisting of the representatives of one or more 
local governments or of an organization of two or more persons may petition the 
department to appear before the commission to seek commission action on a 
maximum of three specific transportation projects, or on the general 
transportation needs for a specific geographical area. 
   
  (2)  Content of petition. A petition filed under this subsection must be in 
writing, directed to the department's district office of the district in which 
the project is located, and must be received by the chief executive officer in 
charge of the district (district engineer) no less than 90 days prior to the 
date of the requested appearance. The petition must include: 
 
  (A) the name and address of the petitioner; 
   
  (B) a statement that the petitioner desires to appear on his or her own 
behalf, or as the representative of a named organization or local government; 
   
  (C) a clear and concise statement of the subject of the proposed presentation; 
   
  (D) a brief summary of the action sought; 
   
  (E) a brief description of known or potential adverse impacts on the 
environment; 
   
  (F)  the name and address of each opponent, if any, to the proposed action or 
relief sought; and 
   
  (G) a statement of the applicable metropolitan planning organization's 
position and endorsement, if any, of the project or projects. 
     
  (3) Highway projects. A delegation requesting action on a highway project must 
submit with the petition a letter containing: 
 
  (A)  project limits; 
   
  (B) an estimate of the cost of the project; 
   
  (C) a description of the existing facility (if any); 
   
  (D) a description of the requested improvement; 
   
  (E) proposed local government participation (city, county) for: 
       
  (i) right-of-way; 
 
  (ii) utility adjustments; 
   
  (iii) environmental mitigation; 
   
  (iv) construction; and 
   
  (v) other project components; and 
   
  (F) any proposed participation in the project by other public or private 
entities. 
   
  (4) District review. The district will review the petition and advise the 
delegation if any additional information is necessary. The district will submit 
to the executive director the petition followed by a report containing 
background information, the district's analysis, and district recommendations. 
   
  (5) Opposition. The department will notify any opponents identified in a 
petition filed under this subsection or who may be otherwise known to the 
department. An opponent will be afforded an opportunity to appear before the 
commission as provided in paragraph (6)(A) of this subsection. 
   
  (6) Presentation. 
 
  (A)  Except as provided in subsection (h)(6) of this section, a delegation 
will be allowed to speak for a maximum of 20 minutes on a maximum of three 
projects prioritized by the delegation or on the general transportation needs 
for a specific geographical area, and opponents will be allowed to follow the 
presentation of the delegation with a presentation not to exceed a total of 20 
minutes. 
   
  (B) Other than elected public officials, no more than three persons may speak 
for a delegation. 
       
  (e) Open comment period. 
 
  (1)  At the conclusion of the posted agenda of each regular business meeting 
the commission will allow an open comment period, not to exceed one hour, to 
receive public comment on any other matter that is under the jurisdiction of the 
commission. 
   
  (2) A person desiring to appear under this subsection must complete a 
registration form, as provided by the department, prior to the beginning of the 
open comment period. 
   
  (3) Except as provided in subsection (h)(6) of this section, each person will 
be allowed to speak for a maximum of three minutes for each presentation in the 
order in which he or she registered. 
     
  (f) Disability accommodation. Persons with disabilities who have special 
communication or accommodation needs and who plan to attend a meeting may 
contact the office of the secretary to the commission in Austin. Requests should 
be made at least two days before a meeting. The department will make every 
reasonable effort to accommodate these needs. 
   
  (g)  Notice. For each commission meeting a notice and a summary agenda will be 
published in the Texas Register<ol>, and, not less than seven days prior to that 
meeting, a notice and complete agenda will be posted in the state capitol 
building. 
   
  (h) Conduct and decorum. The commission will receive public input as 
authorized by this section, subject to the following guidelines. 
 
  (1) Questioning of those making presentations will be reserved to commission 
members and the department's administrative staff. 
   
  (2) Organizations, associations, or groups are encouraged to present their 
commonly held views, and same or similar comments, through a representative 
member where possible. 
   
  (3) Presentations shall remain pertinent to the issue being discussed. 
   
  (4) A person who disrupts a meeting must leave the meeting room if ordered to 
do so by the chair. 
   
  (5)  A person may not assign a portion of his or her time to another speaker. 
   
  (6) The time allotted for presentations or comments under this section may be 
increased or further limited by the commissioner of transportation, or, in his 
or her absence, the acting chair, as may be appropriate to assure opportunity 
for the maximum number of persons to appear. 
     
  (i) Waiver. Subject to the approval of the commissioner of transportation, a 
requirement of this section may be waived in the public interest if necessary 
for the performance of the responsibilities of the commission or the department. 
 
     
  sec.1.5. Public Hearings. 
 
  (a) Subject of hearings. The commission may hold public hearings to: 
 
  (1) consider the adoption of rules, in accordance with the Administrative 
Procedure and Texas Register Act, Texas Civil Statutes, Article 6252-13a; 
   
  (2) receive evidence and testimony concerning the desirability of acquiring 
dredge material disposal sites and of any widening, relocation, or alteration of 
the main channel of the Gulf Intracoastal Waterway, in accordance with Texas 
Civil Statutes, Article 5415e-2; 
   
  (3) provide for public input regarding the design, schematic layout, and 
environmental impact of transportation projects, in accordance with Texas Civil 
Statutes, Article 6674w-1 and sec.11.85 of this title (relating to Early 
Coordination and Public Involvement); 
   
  (4)  consider maximum prima facie speed limits on highways in the state 
highway system that are near public or private institutions of elementary or 
secondary education, in accordance with Texas Civil Statutes, Article 6701d, 
sec.167; 
   
  (5) receive testimony regarding a proposed order establishing maximum prima 
facie speed limits, in accordance with Texas Civil Statutes, Article 6701d, 
sec.169B; 
   
  (6) annually receive public input on the commission's highway project 
selection process and the relative importance of the various criteria on which 
the commission bases its project selection decisions, in accordance with Texas 
Civil Statutes, Article 6673k; 
   
  (7) receive comments from interested parties prior to approving any financial 
assistance under the Texas Aeronautics Act, Texas Civil Statutes, Article 46c-1 
et seq; and 
   
  (8) provide, when deemed appropriate by the commission or when otherwise 
required by law, for public input regarding any other issue under the 
jurisdiction of the commission. 
     
  (b) Authorized representative. The executive director or an employee of the 
department designated by the executive director may conduct public hearings held 
under subsection (a)(1), (3), and (8) of this section. 
   
  (c) Conduct and decorum. Public hearings will be conducted in a manner that 
maximizes public access and input while maintaining proper decorum and 
orderliness, and will be governed by the following guidelines. 
 
  (1) Questioning of those making presentations will be reserved to commission 
members, the executive director, or, if applicable, the presiding officer. 
   
  (2) Organizations, associations, or groups are encouraged to present their 
commonly held views and same or similar comments through a representative member 
where possible. 
   
  (3)  Presentations shall remain pertinent to the issue being discussed. 
   
  (4) A person who disrupts a public hearing must leave the hearing room if 
ordered to do so by the chair or the presiding officer. 
   
  (5) A person may not assign a portion of his or her time to another speaker. 
     
  (d) Disability accommodation. Persons with disabilities who have special 
communication or accommodation needs and who plan to attend a hearing to be held 
by the commission may contact the office of the secretary to the commission in 
Austin. In the case of a hearing to be conducted by the department, those 
persons may contact the public affairs officer whose address and telephone 
number appear in the public notice for that hearing. Requests should be made at 
least two days before the hearing. The department will make every reasonable 
effort to accommodate these needs. 
   
  (e) Language accommodation. For a hearing held in an area with a substantial 
Spanish speaking population, the department will provide: 
 
  (1) notice of the hearing in both English and Spanish; and 
   
  (2) upon request, spanish translation. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on October 30, 1992. 
 TRD-9214763 
  Diane L. Northam 
 Legal Administrative Assistant 
 Texas Department of Transportation 
    Earliest possible date of adoption: December 11, 1992 
 For further information, please call: (512) 463-8630 
         
               
  Complaint Resolution 
 
  43 TAC sec.sec.1.6-1.10 
 
  The Texas Department of Transportation proposes new sec. s1.6-1.10, concerning 
complaint resolution. 
 Texas Civil Statutes, Article 6665a, as added by Senate Bill 352, 72nd 
Legislature, 1991, require the commission by rule to establish methods by which 
consumers and service recipients are notified of the name, mailing address, and 
telephone number of the department for the purpose of directing complaints to 
the department. 
 Section 1.6, Purpose, describes the purpose of the sections. Section 1.7, 
Definitions, provides definitions of terms used in the sections. Section 1.8, 
Filing a Complaint, provides that written complaints may be filed at any 
department business office and oral complaints may be filed in person, by phone, 
or by calling a toll-free number. Section 1.9, Notice to Consumers and Service 
Recipients, provides methods by which consumers and service recipients are 
notified of the name, mailing address, and telephone number of the department 
for the purpose of directing complaints to the department, such methods to 
include: publication in selected public information literature, the official 
state travel map, district road construction reports, and general circulation 
newspapers; display on department motor vehicles, for complaints about the 
operation of the vehicles; and posting at each business office, job sites of 
department contractors, and the place of business of motor vehicle dealers, 
motor vehicle salvage dealers, and motor vehicle manufacturers, distributors, 
converters, and dealers regulated by the department. Section 1. 10, Complaint 
Resolution, provides that the department will: promptly review and make every 
reasonable effort to resolve complaints; respond in writing to written 
complaints; respond in writing or orally to oral complaints; maintain a file for 
each written complaint; and provide quarterly status letters for unresolved 
complaints. 
 Byron C. Blaschke, P.E., deputy executive director, has determined that for the 
first five-year period the sections are in effect there will be fiscal 
implications as a result of enforcing or administering the sections. The 
estimated additional cost to the state will be approximately $95,500 for 1993, 
$78,500 for 1994, $95,500 for 1995, $78,500 for 1996, and $95,500 for 1997. 
There will be no fiscal implications for local government. 
 Mr. Blaschke has certified that there will be no significant impact on local 
economies or overall employment as a result of enforcing or administering the 
section. 
 Mr. Blaschke also has determined that for each year of the first five years the 
sections are in effect the public benefit anticipated as a result of enforcing 
the sections will be a complaint resolution procedure ensuring that the public 
is informed of the methods of filing a complaint with the department and of the 
department's desire to be open and responsive to public complaints about its 
policies, programs, procedures, actions, or operations, and the actions or 
operations of its contractors. The effect on small businesses required to comply 
with the proposed new sections will be negligible. Small businesses that 
contract with the department or are regulated by the department will be required 
to post certain information provided by the department. The anticipated economic 
cost to persons who are required to comply with the sections will similarly be 
negligible. 
 Pursuant to the Administrative Procedure and Texas Register Act, Texas Civil 
Statutes, Article 6252-13a, sec.5, the Texas Department of Transportation will 
conduct a public hearing to receive comments concerning the proposed new 
sections. The public hearing will be held at 1:30 p.m. on Wednesday, December 2, 
1992, in the first floor hearing room of the Dewitt C. Greer State Highway 
Building, 125 East 11th Street, Austin. 
 Those desiring to make comments or presentations may register starting at 1 
p.m. Any interested person may appear and offer oral or written comments, 
however, questioning of those making presentations will be reserved exclusively 
to the presiding officer as may be necessary to ensure a complete record. While 
any person with pertinent comments will be granted an opportunity to present 
them during the course of the hearing, the presiding officer reserves the right 
to restrict testimony in terms of time and repetitive content. Organizations, 
associations, or groups are encouraged to present their commonly held views, and 
same or similar comments, through a representative member where possible. 
Comments on the proposed text should include appropriate citations to sections, 
subsections, paragraphs, etc., for proper reference. Any suggestions or requests 
for alternative language or other revisions in the proposed text should be 
submitted in written form. 
 Written comments on the proposed rules may be submitted to Robert E. Shaddock, 
General Counsel, Texas Department of Transportation, 125 East 11th Street, 
Austin, Texas 78701-2383. All comments should be submitted no later than 5 p.m. 
on December 11, 1992. 
 The new sections are proposed under Texas Civil Statutes, Articles 6666 and 
6665a, 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, and specifically to adopt rules establishing 
methods by which consumers and service recipients are notified of the name, 
mailing address, and telephone number of the department for the purpose of 
directing complaints to the department. 
 
 
  sec.1.6. Purpose.  Texas Civil Statutes, Article 6665a, require the department 
to make information available to the public and appropriate state agencies 
describing its complaint resolution process. The sections under this 
undesignated head prescribe the policies and procedures by which complaints may 
be filed, resolved, and recorded, and by which the department will notify 
consumers and service recipients of its complaint process. 
 
   
  sec.1.7. Definitions.  The following words and terms, when used in this 
undesignated head, shall have the following meanings, unless the context clearly 
indicates otherwise. 
   
   Complainant-A person or organization who files a complaint. 
   
   Complaint-An oral or written statement, other than a petition for a contested 
case under sec. s1.21-1.63 of this title (relating to Contested Case Procedure) 
or a vendor protest of a delegated purchase under Texas Civil Statutes, Article 
601b, concerning a matter which the department has the authority to resolve, and 
that: 
 
  (A) complains about: 
 
  (i)  a department policy, program, procedure, action, or operation; or 
   
  (ii) an action or operation of a department contractor; and 
     
  (B) requests or implies that the department respond or take some action. 
     
   Department-The Texas Department of Transportation. 
   
   Resolution letter -The written document officially closing a complaint file, 
specifying the action or measure taken to resolve a complaint or explaining why 
no action or measure was taken. 
   
   Resolved-The action taken by the department. 
 
   
  sec.1.8. Filing a Complaint. 
 
  (a) Written complaint. A person or organization may file a written complaint 
addressed to the department, attention: Division of Travel and Information, at: 
 
  (1) its main business office, 125 East 11th Street, Austin, Texas 78701-2483; 
or 
   
  (2) any other business office of the department. 
     
  (b) Oral complaint. A person or organization may file an oral complaint: 
 
  (1) at any department business office in person or by telephone, as listed in 
the local telephone directory; or 
   
  (2) by calling 1-800-452-9292. 
     
  (c) Content. A complaint should contain the following information: 
 
  (1) name, mailing address, and telephone number of the complainant; 
   
  (2) a concise statement of the nature of the complaint, including the 
underlying facts; and 
   
  (3) the specific action or measure, if any, requested of the department. 
 
       
  sec.1.9. Notice to Consumers and Service Recipients. <ol> The department will 
provide notice of one or more names, mailing addresses, and/or telephone numbers 
as may be appropriate to geographical locations and subject matter for purposes 
of directing complaints to the department. Relevant information will at a 
minimum be: 
 
  (1) published in selected public information literature, the official state 
travel map, district road construction reports, motor vehicle registration 
renewal notices, and annual notices in general circulation newspapers; 
   
  (2) displayed on each department-owned motor vehicle, for complaints covering 
the operation of that vehicle; 
   
  (3) posted at each business office of the department, including construction 
field offices; and 
   
  (4) required to be displayed, in a form prescribed by the department: 
 
  (A) at each job site of a department contractor; and 
   
  (B) at the place of business of a: 
 
  (i) motor vehicle dealer regulated by the department under Texas Civil 
Statutes, Article 6686; 
   
  (ii) motor vehicle salvage dealer regulated by the department under Texas 
Civil Statutes, Article 6687-2; and 
   
  (iii) motor vehicle manufacturer, distributor, converter, or dealer licensed 
by the Motor Vehicle Board of the department under Texas Civil Statutes, Article 
4413(36). 
 
         
  sec.1.10. Complaint Resolution. 
 
  (a) Department response. 
 
  (1) Review. The department will promptly review a complaint found to be valid 
and will make every reasonable effort to resolve the matter consistent with 
applicable law. 
   
  (2) Written complaints. The department will respond to each written complaint 
by providing a resolution letter to the complainant. 
   
  (3) Oral complaints. The department may respond in writing or orally to an 
oral complaint. 
     
  (b) Recordkeeping. 
 
  (1) File. The department will maintain an information file for each written 
complaint and its disposition. 
   
  (2) Notification. If the department does not provide a resolution letter to 
the complainant within 90 days of the date the complaint is filed, the 
department will notify the complainant of the status of the complaint on the 
91st day and every 90 days thereafter until a resolution letter is provided. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on October 30, 1992. 
 TRD-9214764 
  Diane L. Northam 
 Legal Administrative Assistant 
 Texas Department of Transportation 
    Earliest possible date of adoption: December 11, 1992 
 For further information, please call: (512) 463-8630