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 3. Boll Weevil Eradication Program Subchapter A. Election Procedures 4 TAC sec.sec.3.1-3.6 The Texas Department of Agriculture (the department) proposes new sec.sec.3. 1-3.6, concerning election procedures for the conducting of elections by the Boll Weevil Eradication Foundation (the foundation). The foundation was established by the enactment by the 73rd Legislature of Senate Bill 30, which added to the Texas Agriculture Code (the Code), Chapter 74, Subchapter D, effective June 1, 1993, which provides for the establishment of a boll weevil eradication program for the State of Texas to be implemented by the foundation and the department. In accordance with the provisions of the Texas Agriculture Code, sec.74.114, the department proposes procedures for use by the Boll Weevil Eradication Foundation to conduct referenda to establish boll weevil eradication zones and assessment rates and to elect board members to serve on the foundation's board of directors. The proposed procedures provide general instructions for conducting elections including voter eligibility requirements, requirements for board candidates, procedures for providing notice of the elections, procedures for voting and canvassing of votes, requirements for ballots used in elections, and requirements and procedures for approval of zones, assessment rates, and/or board elections. Dolores Alvarado Hibbs, Chief Administrative Law Judge, has determined that for the first five-year period the rules are in effect there will be no fiscal implications to state or local government as a result of enforcing or administering the sections. Ms. Hibbs also has determined that for each year of the first five years the rules are in effect the public benefit anticipated as a result of enforcing the sections will be an efficient, fair, and uniform election process for conducting of elections by the Boll Weevil Eradication Foundation. 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. In accordance with Senate Bill 30, the Foundation is responsible for costs of elections conducted under these sections and such costs are not determinable at this time. Comments on the proposal may be submitted to Katie Dickie, Assistant Commissioner for Producer Relations, P.O. Box 12847, Austin, Texas 78711, and must be received no later than 30 days from the date of the publication of this proposal in the Texas Register. The new sections are being proposed under the Texas Agriculture Code, sec.74. 114, which requires the department to adopt procedures for conducting of elections by the Boll Weevil Eradication Foundation. sec.3.1. Voter Eligibility. (a) Any cotton grower having cotton production in a proposed or established eradication zone is entitled to vote in any referendum concerning the establishment of an eradication zone or rate of assessment for that zone. For purposes of this chapter, a grower is an individual who receives direct income on or after June 1, 1992, from the sale of cotton and who will be responsible for paying an assessment established by the Boll Weevil Eradication Foundation (the foundation), i.e., if proceeds of sale go to the grower, he or she will pay; if proceeds go to an absentee landlord, he or she will pay. The term cotton grower includes the owner of the farm on which the cotton is grown and the owner's tenant or sharecropper, provided that only one vote may be cast representing the same production, e.g., if two acres are owned jointly, both owners cannot vote and both claim two acres: usually the owner paying the assessment will claim both acres, but if are both paying, each may claim one acre. (b) A cotton grower eligible to vote in the eradication zone referendum and/or assessment referendum is also entitled to elect board members to represent the eradication zone in which the grower's cotton production occurs. (c) An eligible cotton grower may vote only once in each zone referendum and/or board election. If a grower has production in more than one zone, the grower may vote in each zone in which he or she meets the eligibility requirements for voting provided at subsection (a) of this section. sec.3.2. Board Candidates. (a) A representative number of members to the foundation's board of directors shall be elected from each established zone. The number of members from a particular zone will depend on the total number of zones to be established and the total number of board members making up the board. In any event, each established zone shall be represented on the board. (b) In order to be a candidate for board membership, a person must be eligible to vote in the referendum and must reside in the zone that he or she is seeking to represent. (c) In order to have his or her name put on the ballot, a person must file with the foundation, or if before certification has occurred, with the commissioner of agriculture, at least 30 days prior to the date of the election, a petition signed by ten eligible voters within the zone to be represented. The form for the petition is to be provided by the foundation, or the commissioner if certification has not occurred. (d) An eligible voter may vote for a cotton grower whose name does not appear on the ballot by writing that person's name and county of residence on the ballot. (e) Board candidates are elected by receiving the highest number of votes of all candidates for that board position. sec.3.3. Conduct of Elections; Notice. (a) The commissioner will work with the foundation to ensure an efficient and honest election. (b) The initial election for board members from each proposed eradication zone shall be held concurrently with the initial eradication zone referendum or referenda. The foundation may call additional referenda in a proposed eradication zone in which a referendum has failed, provided that such additional referenda and board elections are held no earlier than the 121st day after the date of the last referendum. (c) The foundation may conduct an assessment referendum or referenda either in conjunction with the initial board elections and eradication zone referendum or referenda or at a time subsequent to the initial elections and referendum or referenda. (d) A board election and referendum or referenda to establish an eradication zone and/or zone assessment must be preceded by at least 45 days notice published in one or more newspapers published and distributed throughout the proposed or established eradication zone or zones. The notice shall be published not less than once a week for three consecutive weeks. In addition, direct written notice of the election shall be given to each county extension agent of the Texas Agricultural Extension Service in the eradication zone or zones at least 45 days before the date of the election, referendum, or referenda. (e) Notice provided in accordance with subsection (d) of this section shall include: (1) the date of the election; (2) the manner in which the election is to be conducted (i.e., by mail or physical balloting); (3) the purpose of the election; (4) if appropriate, information regarding the election of board members, including how to get on the ballot; (5) if an assessment referendum or referenda are being conducted, the maximum assessment to be paid by cotton growers having production in the eradication zone and the time for which the assessment will be collected; and (6) who to contact for more information. (f) Except as provided in subsection (h) of this section, a referendum or referenda to establish zones and/or set assessment rates and elect board members shall be conducted by mail ballot, with ballots returned by mail to the principal headquarters of the foundation. (g) No ballot will be valid if postmarked after midnight on the last day for voting in the board election, referendum or referenda. (h) An eligible voter may, instead of voting by mail ballot, vote in person before the deadline for voting in the board election, referendum or referenda at the office of the county extension agent of the Texas Agricultural Extension Service in the county in which the cotton grower resides. A county agent shall hold ballots received in accordance with this subsection in trust and at the conclusion of the election immediately forward any ballots received to the principal headquarters of the foundation for canvassing in accordance with sec.3.5 of this title (relating to Canvassing of Ballots). (i) Instructions for county agents and voters will be available in each election from the foundation and approved by the commissioner of agriculture. sec.3.4. Ballots. (a) The commissioner will make available instructions for the form of the ballot to be used and ballots shall be approved by the commissioner before being submitted to the voters. (b) A ballot for conducting an eradication zone referendum or referenda and board election must include, or be accompanied by: (1) information about the proposed eradication zone, including: (A) a statement of the purpose of the boll weevil eradication program; (B) the geographic area included in the proposed eradication zone; (C) a general summary of rules adopted by the commissioner under the Code, sec.sec.74. 114, 74.118, and 74.120, including a description of: (i) cotton grower responsibilities; and (ii) penalties for noncompliance with rules adopted under Chapter 74, Subchapter A, of the code; (2) names of board candidates; and (3) instructions for voting in the board election. (c) A ballot for conducting an assessment referendum or referenda shall include : (1) the maximum assessment to be paid by cotton growers having production in the eradication zone; (2) the time for which the assessment will be collected; and (3) the purposes for which the assessment will be used. (d) If an assessment referendum or referenda is held in conjunction with a referendum or referenda to establish an eradication zone or zones and elect a board member for that zone or zones, the ballot shall include all of the information required by subsections (b) and (c) of this section. (e) To be considered valid, a ballot must bear a signature, the amount of row acreage of cotton farmed for the full calendar year immediately preceding the election year and the address of the grower. (f) Ballots shall be sent with prepaid return postage. (g) Proposed ballots and other election materials must be provided to the commissioner for approval no later than 30 days before the election date. sec.3.5. Canvassing of Ballots. (a) Ballots in all board elections and referenda will be counted at the headquarters of the foundation by a canvassing committee consisting of a representative of the county judge from the county in which the ballots are counted by the committee, a representative of the Texas Agricultural Extension Service, a representative of the foundation, and a representative of the Texas Department of Agriculture. (b) In all elections, results will be certified by the canvassing committee and submitted to the commissioner of agriculture for verification. (c) Votes will be tabulated and recorded by zone, with the following tabulations recorded for each zone: (1) total number of valid votes; (2) total voting for proposition; (3) total voting against proposition; (4) percentage voting for proposition; (5) total cotton row acreage in zone; (6) total cotton row acreage voting for proposition; (7) total cotton row acreage voting against proposition; (8) percentage of cotton row acreage voting for proposition; (9) if applicable, total votes for each board candidate. (d) Upon completion of canvassing of the ballots, the ballots shall be stored at the department's offices located in Austin, for a period of 30 days. Thereafter, the ballots shall be destroyed. sec.3.6. Approval of Zones, Assessment Rates, Board Elections. (a) A referendum or referenda to establish a zone or to set an assessment rate must pass by a favorable vote of at least two-thirds of those voting on the referendum or of growers who farm more than 50% of the total row acreage of cotton in the relevant eradication zone. The total row acreage of cotton in each zone shall be determined by use of the latest available figures from the Texas office of the Agricultural Stabilization and Conservation Service. (b) If a referendum is not approved, the foundation may not conduct another referendum in the same zone or zones on that same issue before the 121st day after the date of the election on the failed referendum. In addition, the concurrent election of board members from the proposed eradication zone has no effect. (c) Board members for each zone shall be elected by majority vote. (d) After the commissioner has certified the establishing of the eradication zones and foundation board and issued certificates of election to those elected board members, those members may act in accordance with the powers provided to them by the Texas Agriculture Code, Chapter 74, Subchapter D. 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 June 7, 1993. TRD-9323921 Dolores Alvarado Hibbs Chief Administrative Law Judge Texas Department of Agriculture Earliest possible date of adoption: July 12, 1993 For further information, please call: (512) 463-7583 Chapter 5. Quarantines Imported Fire Ant Quarantine 4 TAC sec.5.1 The Texas Department of Agriculture proposes an amendment to sec.5.1, concerning quarantines of newly infested counties. The amendment is proposed to stop the movement of imported fire ants out of currently infested areas of the state and adds Brown, Maverick, Midland, Jones, Kimble, La Salle, Palo Pinto, Stephens, Val Verde, and parts of Ector and Montague counties to the list of quarantined areas. David Davis, director of plant quality has determined that for the first five- year period the rule is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the rule. Mr. Davis also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be to slow the introduction of the imported fire ant into areas of Texas that are currently not infested. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the rule as proposed. Comments on the proposal may be submitted to Darrell Williams, Plant Quality Programs, Texas Department of Agriculture, P.O. Box 12847, Austin, Texas 78711. The amendment is proposed under Texas Agriculture Code, s71.002, which provides the Texas Department of Agriculture with the authority to establish a quarantine against in-state diseases and pests; and sec.71.007, which authorizes the department to adopt rules necessary for the protection of agricultural and horticultural interests. sec.5.1. Quarantined Areas. (a) The Texas Department of Agriculture hereby adopts by reference as quarantined areas those counties in Texas, or portions, thereof, listed as regulated areas in the most current federal imported fire ant quarantine as adopted by the United States Department of Agriculture, as found at 7 Code of Federal Regulations, sec.301.81-2a. (b) In addition to the provisions described in subsection (a) of this section, Brown, Maverick, Midland, Jones, Kimble, La Salle, Palo Pinto, Stephens, and Val Verde counties are quarantined areas. (c) In addition to the provisions described in subsection (a) and (b) of this section, the following parts of Ector and Montague counties are quarantined areas: (1) Ector County-that part of the county beginning at the intersection of U.S. Interstate Highway 20 and State Highway 302 in the southwest corner, then northerly along State Highway 302 until the intersection of State Highway 302 and West Loop 338, then continuing north on West Loop 338 to East Loop 338, then continuing southeasterly and south along East Loop 338, to the intersection of U.S. Interstate Highway 20 on the southeast corner, then proceeding westerly along U.S. Interstate Highway 20 to the intersection of State Highway 302 and U.S. Interstate Highway 20; (2) Montague County-that part of the county that is south of State Highway 82. 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 June 2, 1993. TRD-9323796 Dolores Alvarado Hibbs Chief Administrative Law Judge Texas Department of Agriculture Earliest possible date of adoption: July 12, 1993 For further information, please call: (512) 463-7583 TITLE 7. BANKING AND SECURITIES Part II. Banking Department of Texas Chapter 25. Prepaid Funeral Contracts 7 TAC sec.25.21 The Banking Department of Texas proposes new sec.25.21, concerning the Joint Memorandum of Understanding. New sec.25.21 outlines the statutory requirements of Texas Civil Statutes, Article 4582(b), sec.4(1). That statute provide that the Joint Memorandum of Understanding shall be promulgated by rule by each of the affected agencies. Any future revisions to the Joint Memorandum of Understanding will be promulgated as amendments to these rules. Stephanie Newberg, director of special audits, has determined that for the first five-year period rule is in effect there will be no fiscal implications for state government or local government as a result of enforcing of administering the rule and there will be no local employment or the local economy. Ms. Newberg also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be the ability to better regulate prepaid funeral services and insurance, and the ability to provide better services to consumers through better coordination of the complaint processing and regulatory activities of the three agencies. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the rule as proposed. Comments on the proposal, to be considered by the Banking Department of Texas, must be submitted in writing within 30 days after publication of the proposed section in the Texas Register, to Sharon Gillespie, Assistant General Counsel, Banking Department of Texas, 2601 North Lamar Boulevard, Austin, Texas 78705. The new section is proposed under Texas Civil Statutes, Articles 4582(b), 548b(2), and 6252-13a, sec.4 and sec.5. Texas Civil Statutes, Article 4582(b), sec.4(1) mandate the Banking Department of Texas, the Texas Funeral Service Commission, and the Texas Department of Insurance to enter into a Joint Memorandum of Understanding and mandate that each agency promulgate the Joint Memorandum of Understanding as a rule. Texas Civil Statutes, Article 548b(2) provide the Banking Department of Texas with authority to prescribe rules incidental to the orderly administration of the prepaid funeral benefits statute (Texas Civil Statutes, Article 548b, sec.sec.1-10a). Texas Civil Statutes, Article 6252-13a, s4 and sec.5 authorize and require each state agency to adopt rules of practice setting forth the nature and requirements of available procedures, and prescribe the procedures for adoption of rules by a state administrative agency. sec.25.21. Introduction to Joint Memorandum of Understanding. (a) Texas Civil Statutes, Article 4582(b), sec.4(1) mandate the Banking Department of Texas, the Texas Funeral Service Commission, and the Texas Department of Insurance to adopt by rule a Joint Memorandum of Understanding relating to prepaid funeral services and transactions that: (1) outlines the responsibilities of each agency in regulating these services and transactions; (2) establishes procedures to be used by each agency in referring complaints to one of the other agencies; (3) establishes procedures to be used by each agency in investigating complaints; (4) establishes procedures to be used by each agency in notifying the other agencies of a compliant or of the investigation of a compliant; (5) describes actions the agencies regard as deceptive trade practices; (6) specifies the information the agencies provide consumers and when that information is to be provided; and (7) sets the administrative penalties each agency imposes for violations. (b) Any revisions to the Joint Memorandum of Understanding will be adopted by rule by each agency. (c) The Joint Memorandum of Understanding entered into by the three agencies is found at sec.25.22 of this title (relating to Joint Memorandum of Understanding. 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 June 2, 1993. TRD-9323823 Catherine A. Ghiglieri Commissioner Banking Department of Texas Earliest possible date of adoption: July 12, 1993 For further information, please call: (512) 475-1300 7 TAC sec.25.22 The Banking Department of Texas proposes new sec.25.22, concerning the Joint Memorandum of Understanding to be entered into by the Banking Department of Texas, the Texas Funeral Service Commission, and the Texas Department of Insurance under Texas Civil Statutes, Article 4582(b), sec.4(1). That statute provides that the Joint Memorandum of Understanding shall be promulgated by rule by each of the affected agencies. Any future revisions to the Joint Memorandum of Understanding will be promulgated as amendments to these rules. New sec.25.22 contains the Memorandum of Understanding, which describes the statutory responsibilities of the three agencies and the procedures by which the agencies will coordinate their activities. This Joint Memorandum of Understanding sets forth the manner in which the three agencies will coordinate their statutory responsibilities in the area of prepaid funeral services and transactions. Stephanie Newberg, director of special audits, has determined that for the first five-year period the rule is in effect there will be no fiscal implications for state government or local government as a result of enforcing or administering the rule, and there will be no effect on local employment or the local economy. Ms. Newberg also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be the ability to better regulate prepaid funeral services and insurance, and the ability to provide better services to consumers through better coordination of the complaint processing and regulatory activities of the three agencies. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the rule as proposed. Comments on the proposal, may be considered by the Banking Department of Texas, must be submitted in writing within 30 days after publication of the proposed section in the Texas Register, to Sharon Gillespie, Assistant General Counsel, Banking Department of Texas, 2601 North Lamar Boulevard, Austin, Texas 78705. The new section is proposed under Texas Civil Statutes, Articles 4582(b), 548b(2), and 6252-13a, sec.4 and sec.5. Texas Civil Statutes, Article 4582(b), sec.4(1), mandate the Banking Department of Texas, the Texas Funeral Service Commission and the Texas Department of Insurance to enter into a Joint Memorandum of Understanding and mandates that each agency promulgate the Joint Memorandum of Understanding as a rule. Texas Civil Statutes, Article 548b(2), provide the Banking Department of Texas with authority to prescribe rules incidental to the orderly administration of the prepaid funeral benefits statute (Texas Civil Statutes, Article 548b, sec.sec.1-10a). Texas Civil Statutes, Article 6252-13a, s4 and sec.5, authorize and require each state agency to adopt rules of practice setting forth the nature and requirements of available procedures, and prescribe the procedures for adoption of rules by a state administrative agency. sec.25.22. Joint Memorandum of Understanding. (a) Pursuant to Texas Civil Statutes, Article 4582b, sec.4(1), the Texas Funeral Service Commission (herein referred to as the "TFSC"), the Texas Department of Insurance (herein referred to as the "TDI"), and the Banking Department of Texas (herein referred to as the "DOB") hereby adopt the following joint memorandum of understanding relating to prepaid funeral services and transactions. The TFSC, TDI, and DOB intend this memorandum of understanding to serve as a vehicle to assist the three agencies in their regulatory activities, and to make it as easy as possible for a consumer with a complaint to have the complaint acted upon by all three agencies, where appropriate. In order to accomplish this end, where not statutorily prohibited, the three agencies will share information between the agencies which may not be available to the public generally under the Open Records Act, Texas Civil Statutes, Article 6252-17a. Such information will be transmitted between agencies with the notation on the information that it is considered confidential, is being furnished to the other agencies in furtherance of their joint responsibilities as state agencies in enforcing their respective statutes, and that it may not be disseminated to others. (b) Responsibilities of each agency in regulating prepaid funeral services and transactions. (1) The Texas Funeral Service Commission is responsible for the following. (A) licensing funeral directors and embalmers, apprentice funeral directors and apprentice embalmers (Texas Civil Statutes, Article 4582b, sec.3), and funeral establishments Texas Civil Statutes, Article 4582b, sec.4(A)). The TFSC may refuse to license a person or establishment which violates Texas Civil Statutes, Article 548b, under Texas Civil Statutes, Article 4582b, sec.3(H)(10). (B) taking action against any licensee violating article 548b, under Texas Civil Statutes, Article 4582b, sec.3(H)(10). (C) taking action against any funeral director in charge and/or funeral establishment for violations of Article 548b, by persons directly or indirectly connected to the funeral establishment, under Texas Civil Statutes, Article 4582b, sec.4(D)(l)(f) and sec.4(E). (2) The Banking Department of Texas is responsible for administering Texas Civil Statutes, Article 548b, including, but not limited to, the following: (A) issuing permits to sell prepaid funeral services or funeral merchandise pursuant to Texas Civil Statutes, Article 548b, sec.1 and sec.3; (B) approving forms for sales contracts pursuant to Texas Civil Statutes, Article 548b, sec.2; (C) canceling or refusing to renew permits pursuant to Texas Civil Statutes, Article 548b, sec.4; and providing notice of alleged violations to the Attorney General of Texas and to sellers pursuant to Texas Civil Statutes, Article 548b, sec.9(e) and (f); (D) approving the release or withdrawal of funds under certain circumstances or for certain purposes, pursuant to Texas Civil Statutes, Article 548b, sec.5(3), (4), and (5); (E) providing for reporting requirements and performing examinations under Texas Civil Statutes, Article 548b, sec.7 and sec.8(a); and (F) maintaining a guaranty fund with respect to prepaid funeral benefits owned by trusts, pursuant to Texas Civil Statutes, Article 548b, sec.8A. (3) The Texas Department of Insurance is responsible for the following: (A) regulating licensed insurers that issue or propose to issue life insurance/annuity contracts which may fund prepaid funeral contracts; (B) regulating individuals/entities that perform the acts of an insurance agent(s) as defined in the Insurance Code, Articles 21.02 and 1.14-1; (C) regulating insurance/annuity contracts that may fund prepaid funeral contracts; (D) regulating unfair trade practices relating to the insurance/annuity contracts which may fund prepaid funeral contracts pursuant to the Insurance Code, Article 21.21; (E) regulating unfair claims settlement practices by insurance companies pursuant to the Insurance Code, Articles 21.21-2; (c) Procedures used by each agency in exchanging information with or referring complaint to one of the other agencies. (1) Exchanging information. If, upon receipt of a complaint, or during the course of an investigation, an agency (referred to as the receiving agency) receives any information that might be deemed of value to another of the agencies (referred to as the reviewing agency), the receiving agency will contact the reviewing agency and will forward the relevant information to the reviewing agency at its request. (2) Referral of complaints for handling. When an agency receiving a complaint refers the complaint to another agency for handling, the receiving agency will contact the complainant in writing informing him or her of the referral, and providing contact information to the reviewing agency, and encouraging the complainant to recontact the receiving agency if she or he has any problem with the reviewing agency's processing of the complaint. (3) Complaint procedures. The three agencies will work together to establish procedures to ensure complaints will be fully resolved by the reviewing agency. (d) Procedures to be used by each agency in investigating a complaint. (1) All agencies. (A) Each agency will develop an internal complaint procedures manual for violations relating to prepaid funeral services and/or transactions. The manual should at a minimum provide for: (i) cross-checking the other two agencies' lists of licensees against the investigating agency's list; (ii) background checks on disciplinary proceedings and license eligibility- including background checks into the two other agencies' complaints, disciplinary proceedings, and licensing process involving the same licensee if any, where not prohibited by law; (iii) outlining of relevant law for each agency which check-point steps to ensure all relevant information has been obtained from complainant and references to applicable legal provisions; (iv) identification of necessary data and documents to be obtained from the complainant; and (v) such other steps deemed necessary for the agency to perform an adequate and appropriate investigation. (B) Each agency will maintain its centralized complaint resolution process with a long-term goal of integrating the complaint resolution process, which includes the complaint tracking system, with the other agencies in the most effective, cost-efficient manner. (C) Within four months from the final adoption of the JMOU by rulemaking; the DOB, TFSC and TDI will develop one or more complaint and referral forms that are substantially similar in content and format to be used by each agency in processing complaints relating to prepaid funeral services and/or transactions. (D) Each reviewing agency will provide periodic, no less than quarterly, status reports on the complaint investigation to the reviewing agency or agencies. In addition, the reviewing agency will contact the complainant to inform him or her of the status of the investigation. (E) Each agency will develop with the other agency, or other two agencies, a written plan for conducting joint investigations where appropriate which, at a minimum, establishes a case manager for the investigation, establishes the divisions of duties among the agencies, and establishes a time-line for completion of the investigation. (F) As soon as possible following the final adoption of the JMOU by rulemaking, the DOB, TFSC, and TDI will each ensure its complaint resolution procedure is accessible to the public by reviewing its procedures, forms, brochures, and letters to determine what steps, if any, are needed to remedy problems of accessibility. The DOB, TFSC, and TDI will implement the needed steps as soon as possible thereafter. (G) The TDI, DOB, and TFSC commit to a long-term goal with a five-year planning horizon to develop an efficient and cost-effective way to ensure that the three agencies can readily exchange information and that there is effective and easy access by each of the three agencies to the information and data held by the other agencies relating to complaints and information regarding licensees in the prepaid funeral services area. (2) The Texas Funeral Service Commission. (A) The TFSC, in accordance with Texas Civil Statutes, Article 4582b, sec.4D(2)(b), will investigate violations of prepaid funeral services only if the investigation does not interfere with or duplicate an investigation conducted by the DOB. (B) The TFSC will, upon request, assist the DOB and/or the TDI with investigations. (3) Banking Department of Texas. (A) Complaints received by the Special Audit Division will be entered into a complaint log and assigned a reference number. If, after agency notice to the subject of the complaint, the complaint is not resolved, the DOB will investigate. (B) If disciplinary action against a DOB permittee is appropriate, the matter will be referred to the agency's legal staff. (C) If the complaint involves a matter handled by either the TDI or TFSC, as well as a violation of the DOB statutes or regulations, the DOB will coordinate the investigation with either or both of these agencies, as appropriate. The DOB will, upon request, assist the TFSC and/or TDI with investigations. (D) In the event that a licensee under the TFSC's jurisdiction is found, after hearing, to have violated one or more provisions of Article 548b, the DOB will inform the TFSC of the violation(s) in writing and provide documentation supporting the occurrence of the violation(s). (4) Texas Department of Insurance. (A) Complaints received by the Consumer Services area of TDI will be logged-in and investigated. Other areas of the agency can be called upon for assistance in the investigation of the complaint where appropriate. (B) If disciplinary action against a licensee of the TDI is found to be appropriate, the matter will be referred to the Compliance Intake Unit of TDI. (C) If the complaint involves a matter handled by either the DOB or TFSC, as well as a violation of the TDI statutes or regulations, the investigation will be coordinated with either or both of those agencies. (D) TDI will, upon request, assist the TFSC and/or DOB with investigations. (e) Actions the Agencies Regard as Deceptive Trade Practices. (1) The TFSC, the DOB, and the TDI regard as deceptive trade practices those actions found under the Texas Business and Commerce Code, sec.17.46. (2) With respect to trade practices within the business of insurance, the TDI regards as deceptive trade practices those actions found under the Insurance Code, Article 21.21, and other articles of the Code and the regulations promulgated by the TDI thereunder. (f) Information the agencies will provide consumers and when that information is to be provided. (1) TFSC, DOB, and TDI will continue to provide consumers with the brochure entitled "Facts About Funerals" developed by TFSC (in Spanish and in English). As soon as possible after the final adoption of the JMOU by rulemaking, the agencies will update the brochure to provide information about insolvency, the guaranty funds, and consumer complaints, and make the brochure accessible under the terms of the Americans with Disabilities Act. The agencies will provide other relevant consumer brochures to each other. (2) TDI will maintain its toll-free number, and TFSC and DOB will each work towards consumer access via a toll-free number. Each agency will include its toll-free number as a prepaid funeral consumer protection resource in the respective agencies' consumer information materials. DOB, TFSC, and TDI will routinely inform consumers of options within the agency's knowledge available to them to resolve the complaint. (3) TFSC, DOB, and TDI, as state agencies, are subject to the Open Records Act, Texas Civil Statutes, Article 6252-17a. Upon written request, the three agencies will provide consumers with public information which is not exempt from disclosure under that Act. As noted in the preamble to this JMOU, the agencies may, where not statutorily prohibited, exchange information necessary to fulfill their statutory responsibilities among each other, without making such information public information under the Open Records Act. (g) Administrative penalties each agency imposes for violations. (1) All Agencies. (A) DOB, TDI, and TFSC will create a working group to develop recommendations concerning the three agencies working together on enforcement actions using the resources of the Attorney General and/or prosecutorial or investigative agencies, where appropriate. (B) DOB, TDI, and TFSC will refer DTPA and other such violations to the Federal Trade Commission and/or the Attorney General whenever appropriate. (2) Texas Funeral Service Commission. The TFSC may impose an administrative penalty, issue a reprimand, or revoke, suspend, or place on probation any licensee who violates Article 548b. The recommended range of administrative penalty for a violation of Article 548b is $500 to $5,000. Also, a funeral establishment may be assessed an administrative penalty of $250 to $5,000 for each violation of Article 548b by a person directly or indirectly connected to the funeral establishment, under the Title 22, s201.11(a)(6) and (25) (relating to Disciplinary Guidelines). (3) Banking Department of Texas. The DOB may impose the following administrative penalties. (A) cancel a permit or refuse to renew a permit pursuant to Texas Civil Statutes, Article 548b, sec.4. (B) seize prepaid funeral funds and records of a prior permit holder pursuant to Texas Civil Statutes, Article 548b, sec.8(b). (4) Texas Department of Insurance. TDI administrative penalties vary based on the violation; TDI sanctions are imposed under the Insurance Code, Article 1.10. (h) Meetings for developing cooperative efforts in regulation. (1) DOB and TDI will develop an insolvency alert among themselves to minimize the drain of trust funds and premiums consistent with their respective statutory provisions. They will also clarify each agency's responsibility to access the respective guaranty fund vis-a-vis the other agency. (2) DOB, TDI, and TFSC will develop methods to coordinate the efforts of the agencies to articulate the funeral providers' responsibility in the event of seller and/or insurance company insolvency. (3) Each agency should seek input from the other agencies on any proposed agency regulations relating to prepaid funeral services and/or transactions; and, where appropriate, legislative recommendations concerning prepaid funeral services and/or transactions. (4) The three agencies will provide lists of their key contact personnel and their telephone numbers to each other. (5) In order to better accomplish the exchange of information and coordination of regulation described in this Memorandum of Understanding, the appropriate staff of the TFSC, DOB, and TDI shall meet, at a minimum, once a year, to discuss matters of mutual regulatory concern and share updates of the regulations promulgated by the respective agencies. 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 June 2, 1993. TRD-9323824 Catherine A. Ghiglieri Commissioner Banking Department of Texas Earliest possible date of adoption: July 12, 1993 For further information, please call: (512) 475-1300 TITLE 22. EXAMINING BOARDS Part VI. Texas State Board of Registration for Professional Engineers Chapter 131. Practice and Procedure Board of Review of Application 22 TAC sec.131.120 The Texas State Board of Registration for Professional Engineers proposes an amendment to sec.131.120, concerning criminal convictions. The section is amended to change the name of the title of s131.224 in subsection (e)(2). Charles E. Nemir, P.E., executive director, has determined that for the first five-year period the rule is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the rule Mr. Nemir also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be the correct name of the title of sec.131.224. There will be no effect on small business as a result of enforcing the rule. There is no anticipated economic cost to persons who are required to comply with the rule as proposed. Comments on the proposal may be submitted to Charles E. Nemir, P.E., Executive Director, Texas State Board of Registration for Professional Engineers, P.O. Drawer 18329, Austin, Texas 78760. The amendment is proposed under Texas Civil Statutes, Article 3271a, sec.8(a) , which provide the board with the authority to make and enforce all rules and regulations necessary for the performance of its duties. sec.131.120. Criminal Convictions. (a)-(d) (No change.) (e) The application of any applicant deemed ineligible for registration because of a prior conviction will be proposed for rejection and the applicant will be provided the following information in writing: (1) (No change.) (2) notice of the administrative procedure used to conduct an informal conference to show compliance with all requirements of law for registration as a professional engineer, as provided by sec.131.224 of this title (relating to [Show Cause Orders and] Complaints), and similar to the proceedings established for registrants under sec.131.137 of this title (relating to Disciplinary Actions); and (3) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on June 4, 1993. TRD-9323828 Charles E. Nemir, P.E. Executive Director Texas State Board of Registration for Professional Engineers Proposed date of adoption: July 28, 1993 For further information, please call: (512) 440-7723 Registration 22 TAC sec.131.137 The Texas State Board of Registration for Professional Engineers proposes an amendment to sec.131.137, concerning disciplinary actions. The section is amended to change the name of the title of sec.131.224 in subsection (e), and also change the ending section number in the reference to hearings-contested cases in subsection (f) as sec.131.225 is being repealed. Charles E. Nemir, P.E., executive director, has determined that for the first five-year period the rule is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the rule Mr. Nemir also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be the correct name of the title of sec.131.224 and the correct reference to the sections concerning contested case hearings. There will be no effect on small business as a result of enforcing the rule. There is no anticipated economic cost to persons who are required to comply with the rule as proposed. Comments on the proposal may be submitted to Charles E. Nemir, P.E., Executive Director, Texas State Board of Registration for Professional Engineers, P.O. Drawer 18329, Austin, Texas 78760. The amendment is proposed under Texas Civil Statutes, Article 3271a, sec.8(a) , which provide the board with the authority to make and enforce all rules and regulations necessary for the performance of its duties. sec.131.137. Disciplinary Actions. (a)-(d) (No change.) (e) A registrant alleged to have violated the law, rules, or standards of conduct will be notified by personal service or by certified or registered mail of the facts or conduct alleged to be in violation and shall be afforded an opportunity to present arguments and evidence in his own behalf before a determination of censurable conduct is made by the board, as provided in s131.224 of this title (relating to [Show Cause Orders and] Complaints). (f) Where a violation appears evident, the board will consider instituting disciplinary action by means of scheduling a public hearing in conformance with sec.sec.131.181- 131.224
    [131.225] of this title (relating to Hearings- Contested Cases); however: (1)-(4) (No change.) (g)-(h) (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 June 4, 1993. TRD-9323829 Charles E. Nemir, P.E. Executive Director Texas State Board of Registration for Professional Engineers Proposed date of adoption: July 28, 1993 For further information, please call: (512) 440-7723 Hearings-Contested Cases 22 TAC sec.sec.131.181-131.186, 131.189, 131.191-131.195, 131.197, 131.198, 131.201, 131.202, 131.204, 131.215, 131.224, 131.225 (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 State Board of Registration for Professional Engineers or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The State Board of Registration for Professional Engineers proposes the repeal of sec.sec.131.181-131.186, 131.189, 131.191-131.195, 131.197, 131.198, 131. 201, 131.202, 131.204, 131.215, 131.224, and 131.225, concerning administrative procedures for contested case hearings. The sections are obsolete as a result of the enactment of Texas Civil Statutes, Article 6252-13f. The repeals will allow the board to adopt new sec.sec.131.181-131.186, 131.189, 131.191-131.195, 131.197, 131.198, 131.201, 131.202, 131.204, 131.215, and 131. 224, which will conform with the enabling statute and procedures of the State Office of Administrative Hearings. Charles E. Nemir, P.E., 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. Nemir 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 the deletion of obsolete rules concerning the administrative procedures for contested case hearings. There will be no effect on small business as a result of enforcing the repeals. There is no anticipated economic cost to persons who are required to comply with the repeals as proposed. Comments on the proposal may be submitted to Charles E. Nemir, P.E., Executive Director, Texas State Board of Registration for Professional Engineers, P.O. Drawer 18329, Austin, Texas 78760. The repeals are proposed under Texas Civil Statutes, Article 3271a, sec.8(a), which provide the board with the authority to make and enforce all rules and regulations necessary for the performance of its duties. sec.131.181. Filing of Documents. sec.131.182. Computation of Time. sec.131.183. Extensions. sec.131.184. Agreements To Be in Writing. sec.131.185. Service in Rulemaking Proceedings. sec.131.186. Service in Nonrulemaking Proceedings. sec.131.189. Appearances in Person or by Representative. sec.131.191. Form and Content of Pleadings. sec.131.192. Examination by the Executive Director. sec.131.193. Motions. sec.131.194. Amendments. sec.131.195. Publication of Notice in Nonrulemaking Proceedings. sec.131.197. Contested Proceedings. sec.131.198. Personal Service. sec.131.201. Hearing Officer. sec.131.202. Order of Procedure. sec.131.204. Formal Exceptions. sec.131.215. Proposals for Decision. sec.131.224. Show Cause Orders and Complaints. sec.131.225. Ex Parte Consultation. 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 June 4, 1993. TRD-9323830 Charles E. Nemir, P.E. Executive Director Texas State Board of Registration of Professional Engineers Proposed date of adoption: July 28, 1993 For further information, please call: (512) 440-7723 22 TAC 131.181-131.186, 131.189, 131.191-131.195, 131.197, 131. 198, 131.201, 131.202, 131.204, 131.215, 131.224 The Texas State Board of Registration for Professional Engineers proposes new sec.sec.131.181-131.186, 131.189, 131.191-131.195, 131.197, 131.198, 131.201, 131.202, 131.204, 131.215, and 131.224, concerning administrative procedures for contested case hearings. The new sections are necessary to conform with the enabling statute and procedures of the State Office of Administrative Hearings (Texas Civil Statutes, Article 6252-13f), which will handle contested case hearings for the board. Charles E. Nemir, P.E., executive director, has determined that for the first five-year period the rules are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the rules. Mr. Nemir also has determined that for each year of the first five years the rules are in effect the public benefit anticipated as a result of enforcing the rules will be clear and concise rules concerning the administrative procedures for contested case hearing. There will be no effect on small business as a result of enforcing the rules. The anticipated economic cost to persons who are required to comply with the rules as proposed would be the legal fees and personal expenses incurred by the respondents. Comments on the proposal may be submitted to Charles E. Nemir, P.E., Executive Director, Texas State Board of Registration for Professional Engineers, P.O. Drawer 18329, Austin, Texas 78760. The new sections are proposed under Texas Civil Statutes, Article 3271a, sec.8(a), which provide the board with the authority to make and enforce all rules and regulations necessary for the performance of its duties. sec.131.181. State Office of Administrative Hearings. (a) Formal contested case hearings will be conducted for the board by the State Office of Administrative Hearings (SOAH), as authorized by Texas Civil Statutes, Article 6252-13f. Hearings will be conducted in accordance with the Administrative Procedure and Texas Register Act (Texas Civil Statutes, Article 6252-13a), the rules and regulations of the SOAH, and the Texas Engineering Practice Act and board rules. (b) An administrative law judge (judge) assigned to the SOAH will perform the duties and responsibilities as described in sec.sec.131.181-131.224 of this title (relating to Hearings-Contested Cases). (c) The judge shall consider any applicable board rules and policies in conducting the hearing. If there is any conflict between the rules of the SOAH and these board rules, these rules will control unless otherwise specifically stated in the SOAH rules. This subsection does not apply if the rules of the board are contrary to or are otherwise precluded by statutory or other controlling law, including Texas Civil Statutes, Article 6252-13f. sec.131.182. Board Responsibilities.
      The board will conduct sufficient investigation of complaint matters within its jurisdiction and attempt to resolve cases through authorized informal dispositions in accordance with sec.131.137(f) of this title (relating to Disciplinary Actions). However, when agreements are not reached or approved, the board must refer contested cases to the State Office of Administrative Hearings for formal hearings. The board shall not attempt to influence the findings of facts or the judge's application of the law in any contested case other than by proper evidence and legal argument. The board may, however, change a finding of fact or conclusion of law made by the judge, or vacate or modify an order issued by the judge, only for reasons of policy and must state in writing the reason and legal basis for the change. sec.131.183. Jurisdiction; Request for Hearing or Law Judge. (a) The State Office of Administrative Hearings (SOAH) acquires jurisdiction over a case when the board files a written request for setting of hearing form or request for assignment of an administrative law judge form. A request for setting of hearing or for assignment of an administrative law judge shall be considered filed on the date the request form is received by the SOAH. (b) The board shall submit to the SOAH one of the following accompanied by copies of all pertinent documents (including but not limited to the complaint, petition, application, or other document describing board action giving rise to a contested case), along with a written statement of applicable rules and policies: (1) request for setting of hearing; or, (2) request for assignment of a judge. If the board requests a setting for hearing, the SOAH will provide the board with the date, time, and place of such setting. If the board requests an assignment of a judge, the SOAH will assign a judge to consider motions and other prehearing matters. After a cause has been set for hearing pursuant to a request for setting of hearing or has been assigned a judge pursuant to a proper request, any party may move for appropriate relief, including but not limited to discovery and evidentiary rulings, continuances, and settings, which will be ruled on by the SOAH. sec.131.184. Filings. (a) Originals or duplicate originals of all notices, pleadings, motions, answers, affidavits and all other filings in a contested case, made in accordance with the Administrative Procedure and Texas Register Act, the Texas Rules of Civil Evidence, or other applicable law, shall be filed with the State Office of Administrative Hearings (SOAH) at the time the SOAH acquires jurisdiction or at the time the instrument is issued and delivered if that time is later than the time the SOAH acquires jurisdiction. (b) Pursuant to the SOAH rules, a copy of all filings shall be sent by mail or otherwise delivered to all parties or their representative of record. (c) A certificate of service, signed by the person making the filing, showing the manner of service, stating that the filing has been served on all other parties and identifying those parties shall be contained in or attached to all filings. The certificate is prima facie evidence of service. The following form of certificate will be sufficient in this connection: I hereby certify that I have this ____day of _________, 19___, served copies of the foregoing pleading, upon all other parties to this proceeding, by (here state the manner of service). Signature. (d) If a filing does not contain a required certificate of service, or otherwise show service on all other parties: (1) the SOAH may return the filing to the filing party; or (2) the SOAH may send a notice to all parties stating that the filing does not show service on all parties and will not be considered unless and until SOAH is notified that all parties have been served with the filing; or (3) the SOAH may, in the interest of economy of effort, send a copy of the filing to all parties. (e) In computing any period of time prescribed or allowed by board rules, by order of the board, or by any applicable statute, the period shall begin on the day after the act or event considered, and conclude on the last day of such computed period, unless it be a Saturday, Sunday, or legal state holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday, or a legal state holiday. sec.131.185. Stipulations; Agreements. (a) The parties, by stipulation, may agree to any substantive or procedural matter. (b) A stipulation may be filed in writing or entered on the record at the hearing. (c) The judge may require additional development of stipulated matters. (d) No stipulation or agreement between the parties and their attorneys or representatives with regard to any matter involved in any proceeding before the board or the State Office of Administrative Hearings shall be enforced unless it shall have been reduced to writing and signed by the parties or their authorized representatives, or unless it shall have been dictated into the record by them during the course of a hearing, or incorporated in an order bearing their written approval. This subsection does not limit a party's ability to waive, modify, or stipulate any right or privilege afforded by these sections, unless precluded by law. sec.131.186. Service. Unless otherwise required by law, service of the following documents shall be made by personal delivery to the party or to the party's representative by certified mail, return receipt requested, hand delivery or via facsimile to the party's address of record: (1) notices of hearing; (2) default orders; (3) prehearing orders; (4) proposal for decisions; and (5) decisions and orders of the board. sec.131.189. Appearances in Person or by Representative; Waivers; Default. (a) An individual may represent himself or herself. (b) A party may be represented by an attorney authorized to practice law in the State of Texas, or other representative when authorized by law. (c) A party's representative shall enter his or her appearance with the State Office of Administrative Hearings (SOAH). (d) A party's representative of record shall be copied on all notices, pleadings, and other correspondence. (e) A party's attorney of record remains the attorney of record in the absence of a formal withdrawal and an order approving such withdrawal is issued by a judge. (f) A hearing before the judge is not necessary if all parties agree to the admission of the evidence and waive their right to appear. (g) A party may waive the right to appear at the hearing unless prohibited by law. (h) A waiver shall be in writing and filed with the SOAH. (i) If, after receiving notice of a hearing, a party fails to attend a hearing, the judge may proceed in that party's absence and, where appropriate, may issue a proposal for decision against the defaulting party. (j) A waiver may be withdrawn by a party on written notice received by the SOAH no later than seven days before the scheduled hearing. The judge may permit withdrawal of a waiver subsequent to that time on a showing of good cause or in the interest of justice. When a waiver is permitted by law, failure of a party to appear personally or by representation after filing written notice of waiver, may not result in a finding of default. sec.131.191. Form and Content of Pleadings. (a) Pleadings shall be typewritten or printed upon paper 8-1/2 inches wide and 11 inches long with an inside margin at least 1 inch wide, and exhibits annexed thereto shall be folded to the same size. Reproductions are acceptable, provided all copies are clear and permanently legible. (b) All pleadings for which no official form is prescribed shall contain: (1) the name of the party seeking to bring about or prevent action by the board; (2) a concise statement of the facts relied upon by the pleader; (3) a prayer stating the type of relief, action, or order desired by the pleader; (4) any other matter required by statute; and (5) a certificate of service, as required by sec.131.184(c) of this title (relating to Filings). (c) Each application, petition, or complaint which is intended to institute a proceeding before the board shall be accompanied by any filing fee prescribed by law and these sections. sec.131.192. Discovery. (a) Parties to an administrative hearing before the State Office of Administrative Hearings (SOAH) shall have the discovery rights provided in the Administrative Procedure and Texas Register Act, the Texas Engineering Practice Act and board rules. (b) Requests for issuances of subpoenas or commissions should be directed to the board. (c) All discovery requests should be initially directed to the party from which discovery is being sought. (d) All disputes with respect to any discovery matter shall be filed with and resolved by the SOAH. (e) All parties will be afforded a reasonable opportunity to file objections or move for a protective order with respect to the issuance of a subpoena or commission. (f) Copies of discovery requests and documents filed in response thereto shall be filed with all parties, but should not be filed with the SOAH unless directed by the judge or when in support of a motion to compel, motion for protective order, or motion to quash. sec.131.193. Motions; Amendments. (a) Unless otherwise provided by these sections: (1) a party may move for appropriate relief before or during a hearing; (2) a party shall submit all motions in writing or orally at a hearing; (3) written motions shall: (A) be filed no later than 15 days before the date of the hearing, provided, for good cause stated in the motion the judge may permit a written motion subsequent to that time; (B) state concisely the question to be determined; (C) be accompanied by any necessary supporting documentation, and if based on matters which do not appear of record, they shall be supported by affidavit; and (D) be served on each party. (4) An answer to a written motion shall be filed on the earlier of: (A) seven days after receipt of the motion; or (B) on the date of the hearing. (5) On written notice to all parties or with telephone consent of all parties, the judge may schedule a conference to consider a written motion; or (6) The judge may reserve ruling on a motion until after the hearing; or (7) The judge may issue a written decision or state the decision on the record; or (8) If a ruling on a motion is reserved, the ruling shall be in writing and may be included in the judge's proposed decision; and (9) The filing or pendency of a motion does not alter or extend any time limit otherwise established by these rules. (b) Continuances may be granted by the State Office of Administrative Hearings in accordance with the Administrative Procedure and Texas Register Act, the Texas Engineering Practice Act and board rules, and applicable case law. Motions for continuance shall be in writing or stated in record, and shall set forth the specific grounds upon which the party seeks the continuance. (c) Unless made during a prehearing or hearing, for all motions for continuance, cancellation of a scheduled proceeding or extension of an established deadline filed fewer than ten days before the date or deadline in question, the movant must contact the other party(ies) and must indicate in the motion whether it is opposed by any party(ies). Further, if a continuance to a date certain is sought, the motion must include a proposed date or dates (preferably a range of dates) and must indicate whether the party(ies) contacted agree on the proposed new date(s). (d) Any pleading may be amended at any time up to seven days prior to hearing and thereafter with approval of the judge; provided, that the complaint or petition upon which notice has been issued shall not be amended so as to broaden the scope. sec.131.194. Prehearing Conferences and Orders. (a) When appropriate, the judge may hold a prehearing conference to resolve matters preliminary to the hearing. (b) A prehearing conference may be convened to address the following matters: (1) issuance of subpoenas; (2) factual and legal issues; (3) stipulations; (4) requests for official notice; (5) identification and exchange of documentary evidence; (6) admissibility of evidence; (7) identification and qualification of witnesses; (8) motions; (9) discovery disputes; (10) order of presentation; (11) scheduling; (12) settlement conferences; and (13) such other matters as will promote the orderly and prompt conduct of the hearing. (c) Among other matters, as stated in subsection (b) of this section, an administrative law judge may order: (1) that the parties discuss the prospects of settlement or stipulations and be prepared to report thereon at the prehearing conference; (2) that the parties file and be prepared to argue preliminary motions at the prehearing conference; (3) that the parties be prepared to specify the controlling factual and legal issues in the case at the prehearing conference; and (4) that the parties make a plain and concise statement of undisputed facts and issues at the prehearing conference. (d) At the discretion of the judge, all or part of the prehearing conference may be recorded or transcribed. (e) The judge may, after the office acquires jurisdiction, issue an order requiring a prehearing statement of the case. The parties shall, within 14 days of service, file a statement specifying the parties present position on any or all of the following as required by the judge: (1) the disputed issues or matters to be resolved; (2) a brief statement of the facts or arguments supporting the party's position in each disputed issue or matter; (3) a list of facts or exhibits to which a party will stipulate; and (4) a description of the discovery, if any, the party intends to engage in and an estimate of the time needed to complete discovery. Parties shall supplement this statement on a timely basis. (f) The judge may issue a prehearing order reciting the actions taken or to be taken with regard to any matter addressed at the prehearing conference. The prehearing order shall be a part of the case record. If a prehearing conference is not held, the judge may issue a prehearing order to regulate the conduct of the proceedings. sec.131.195. Notice of Hearing. (a) The board shall be responsible for providing notice to all parties as required under the Administrative Procedure and Texas Register Act, sec.13, and other applicable law. (b) A judge may issue notice of date, time, and place for hearings. sec.131.197. Conduct of Hearings. (a) On a genuine issue in a contested case, each party is entitled to: (1) call witnesses; (2) offer evidence; (3) cross-examine any witness called by a party; and (4) make opening and closing statements. (b) Once the hearing is begun the parties may be off the record only when the judge permits. If the discussion off the record is pertinent, then the judge will summarize the discussion for the record. (c) Objections shall be timely noted in the record. See Texas Rules of Civil Evidence, sec.103. (d) The judge may continue a hearing from time to time and from place to place. If the time and place for the proceeding to reconvene are not announced at the hearing, a notice shall be mailed stating the time and place of hearing. (e) The judge may question witnesses and/or direct the submission of supplemental data. (f) Unless precluded by law, informal disposition may be made of any contested case by stipulation, agreed settlement, consent order, or default. sec.131.198. Formal Exceptions.
        Formal exceptions to rulings of the judge during a hearing shall be unnecessary. It shall be sufficient that the party at the time any ruling is made or sought shall have made known to the judge the action he desires. sec.131.201. Administrative Law Judge. (a) The judge shall have the authority and duty to: (1) conduct a full, fair, and impartial hearing; (2) take action to avoid unnecessary delay in the disposition of the proceeding; and (3) maintain order. (b) The judge shall have the power to regulate the course of the hearing and the conduct of the parties and authorized representative, including the power to: (1) administer oaths; (2) take testimony; (3) rule on questions of evidence; (4) rule on discovery issues; (5) issue orders relating to hearing and prehearing matters, including orders imposing sanctions that the board may impose; (6) admit or deny party status; (7) limit irrelevant, immaterial, and unduly repetitious testimony and reasonably limit the time for presentations; (8) grant a continuance; (9) request parties to submit legal memoranda, proposed findings of fact and conclusions of law; and (10) issue proposals for decision pursuant to the Administrative Procedure and Texas Register Act, sec.15. (c) A judge shall disqualify himself or herself or shall recuse himself or herself on the same grounds and under the same circumstances as specified in Texas Rules of Civil Procedure, sec.18b. (d) A substitute judge may use the existing record and need not repeat previous proceedings, but may conduct further proceedings as are necessary and proper to conclude the hearing and render a proposal for decision. sec.131.202. Order of Proceedings. (a) A case shall be called to order by the judge. (b) The judge shall explain briefly the purpose and nature of the hearing. (c) The judge may allow the parties to present preliminary matters. (d) The judge shall state the order of presentation of evidence. (e) Witnesses shall be sworn or put under affirmation to tell the truth. sec.131.204. Telephone Hearings. (a) The judge may, with consent of the parties, conduct all or part of the hearing by telephone, video, or other electronic means, if each participant in the hearing has an opportunity to participate in, hear, and, except when a telephone is used, see the entire proceeding. (b) All substantive and procedural rights apply to telephone hearings, subject only to the limitations of the physical arrangement. (c) Documentary evidence. For a telephone hearing documentary evidence to be offered shall be mailed by the proponent to all parties and the office at least five days before the hearing. (d) Default. For a telephone hearing, the following may be considered a failure to appear and grounds for default, if the conditions exist for more than 10 minutes after the scheduled time for hearing: (1) failure to answer the telephone; or (2) failure to free the telephone for a hearing; or (3) failure to be ready to proceed with the hearing as scheduled. sec.131.215. Proposals for Decision. (a) The judge shall prepare a proposal for decision which shall contain: (1) findings of fact and conclusions of law, separately stated; and (2) if appropriate, a proposed order. (b) The judge may amend the proposal for decision pursuant to exceptions, briefs and replies to exceptions and briefs without the proposal for decision again being served on the parties. (c) The judge shall submit the proposal for decision to the board with a copy to each party and his attorney of record. (d) Upon the expiration of the 20th day following the time provided for the filing of exceptions and briefs as described in sec.131.216 of this title (relating to Filing of Exceptions, Briefs, and Replies), the proposal for decision may be adopted by written order of the board, unless exceptions and briefs shall have been filed in the manner required. (e) If deemed warranted, the judge may direct a party to draft and submit a proposal for decision which shall include proposed findings of fact and a concise and explicit statement of the underlying facts supporting such proposed findings developed from the record. sec.131.224. Complaints. (a) No revocation or suspension of any certificate of registration is effective unless, prior to the institution of board proceedings, the board gives notice by personal service or by registered or certified mail to the registrant of facts or conduct alleged to warrant the intended action, and the registrant is given an opportunity to show compliance with all requirements of law for the retention of the certificate. (b) Rejection of an application for initial registration, based on prior criminal convictions, is not effective unless, prior to the institution of board action, the board gave notice by personal service or by registered or certified mail to the applicant of facts relative to his proposed ineligibility for registration under sec.131.120 of this title (relating to Criminal Convictions), and the applicant is given an opportunity to show compliance with all requirements of law for registration as a professional engineer. 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 June 4, 1993. TRD-9323831 Charles E. Nemir, P.E. Executive Director Texas State Board of Registration for Professional Engineers Proposed date of adoption: July 28, 1993 For further information, please call: (512) 440-7723 22 TAC sec.sec.131.187, 131.188, 131.190, 131.196, 131.199, 131.200, 131.203, 131.204-131.214, 131.216-131.219, 131.221-131.223 The Texas State Board of Registration for Professional Engineers proposes amendments to sec.sec.131.187, 131.188, 131.190, 131.196, 131.199, 131.200, 131. 203, 131.205-131.214, 131.216-131.219, and 131.221-131.223, concerning administrative procedures for contested case hearings. The sections are amended to conform with the enabling statute and procedures of the State Office of Administrative Hearings (Texas Civil Statutes, Article 6252-13f), which will handle contested case hearings for the board. Charles E. Nemir, P.E., executive director, has determined that for the first five-year period the rules are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the rules. Mr. Nemir also has determined that for each year of the first five years the rules are in effect the public benefit anticipated as a result of enforcing the rules will be clear and concise rules concerning the administrative procedures for contested case hearings. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the rules as proposed would be the legal fees and personal expenses incurred by the respondents. Comments on the proposal may be submitted to Charles E. Nemir, P.E., Executive Director, Texas State Board of Registration for Professional Engineers, P.O. Drawer 18329, Austin, Texas 78760. The amendments are proposed under Texas Civil Statutes, Article 3271a, sec.8(a), which provide the board with the authority to make and enforce all rules and regulations necessary for the performance of its duties. sec.131.187. Conduct and Decorum. (a) Every party, witness, attorney, or other representative shall comport himself in all proceedings with proper dignity, courtesy, and respect for the board, the administrative law judge
          [the executive director, the hearing officer] , and all other parties. Disorderly conduct will not be tolerated. Attorneys and other representatives of parties shall observe and practice the standards of ethical behavior prescribed for attorneys at law by the Texas State Bar. (b) Unless otherwise prohibited by federal or state law, all proceedings before the board or conducted by the State Office of Administrative Hearings are open to the public. The judge may remove persons whose conduct impedes the orderly progress of the hearing, and restrict attendance because of the physical limitations of the hearing facility. sec.131.188. Classification of Parties. Parties to proceedings before the board and the State Office of Administrative Hearings
            are applicants, protestants, petitioners, complainants, respondents, and intervenors. Regardless of errors as to designations in their pleadings, the parties shall be accorded their true status in the proceeding. sec.131.190. Classification of Pleadings. Pleadings filed in contested cases
              [with the board through the executive director] shall be protests, petitions, complaints, answers, replies, motions for rehearing, and other motions. Regardless of any error in the designation of a pleading, it shall be accorded its true status in the proceeding in which it is filed. sec.131.196. Certificates of Registration [Licenses]. When the grant, denial, renewal, revocation, probation, reprimand,
                or suspension of a certificate of registration
                  [license] is required by statute to be preceded by notice and opportunity for hearing, the provisions of these sections [and law] concerning contested cases apply. sec.131.199. Motions for Postponement, Continuance, Withdrawal, or Dismissal of Matters Before the Board. Motions for postponement, continuance, withdrawal, or dismissal of matters which have been duly set for hearing, shall be in writing, shall be filed with the judge
                    [executive director] and distributed to all interested parties, under a certificate of service, not less than five days prior to the designated date that the matter is to be heard. Such motion shall set forth, under oath, the specific grounds upon which the moving party seeks such action and shall make reference to all prior motions of the same nature filed in the same proceeding. Failure to comply with the above, except for good cause shown, may be construed as lack of diligence on the part of the moving party, and at the discretion of the judge
                      [executive director] may result in the dismissal of the matter in issue, with prejudice to refiling. Depending on the circumstances, motions for withdrawal or dismissal may be ruled on by the judge or, at his discretion, by the board.
                        [Once a matter has actually proceeded to a hearing, pursuant to the notice issued thereon, no postponement or continuance shall be granted by the hearing officer without the consent of all parties involved, unless the board shall have ordered such postponement or continuance]. sec.131.200. Place and Nature of Hearings. All hearings conducted in any proceeding shall be open to the public. All hearings shall be held in Austin, unless for good and sufficient cause the board or the State Office of Administrative Hearings
                          shall designate another place of hearing in accordance with applicable law. sec.131.203. Reporters and Transcript. (a) The proceedings, or any part of them, must be transcribed on written request of any party.
                            [When a party makes a written request that proceedings be transcribed, the party shall state in writing his election to furnish his own stenographic reporter or to utilize a reporter employed by the board.] Such written request must be received by the State Office of Administrative Hearings (SOAH)
                              [executive director] not less than ten
                                [15] calendar days before the scheduled date of the hearing. The cost of the original transcript shall be assessed 1/2 to the party requesting the transcription, the remaining 1/2 to the other parties equally. The original transcript shall be delivered to the SOAH
                                  [executive director]. The cost of copies of the transcript will be paid by the requesting party. (b) Suggested corrections to the transcript of the record may be offered within ten days after the transcript is filed in the proceeding, unless the SOAH
                                    [hearing officer or the agency] shall permit suggested corrections to be offered thereafter. Suggested corrections shall be served in writing upon each party of record, the official reporter, and the SOAH
                                      [hearing officer]. If suggested corrections are not objected to, the judge
                                        [hearing officer] will direct the corrections to be made and the manner of making them. In case the parties disagree on suggested corrections, they may be heard by the judge
                                          [hearing officer], who shall then determine the manner in which the record shall be changed, if at all. sec.131.205. Dismissal, Settlement Without Hearing. (a) The State Office of Administrative Hearings
                                            [The board] may entertain motions for dismissal without a hearing for the following reasons: failure to prosecute; unnecessary duplication of proceedings or res adjudicata; withdrawal; moot questions or stale petitions; or lack of jurisdiction. (b) Upon request of any party and approval by the judge, or in the judge's discretion, a conference may be held to address settlement possibilities. Settlement discussions shall not be made a part of the case record. sec.131.206. Rules of Evidence. (a) The judge may limit testimony or any evidence which is
                                              [In contested cases,] irrelevant, immaterial, or unduly repetitious [evidence shall be excluded]. In accordance with the Administrative Procedure and Texas Register Act,
                                                the rules of evidence as applied in nonjury civil cases in the district courts of this state shall be followed. When necessary to ascertain facts not reasonably susceptible of proof under those rules, evidence not admissible thereunder may be admitted, except where precluded by statute, if it is of a type commonly relied upon by reasonably prudent men in the conduct of their affairs. The judge
                                                  [board] shall give effect to the rules of privilege recognized by law. Objections in evidentiary offers may be made and shall be noted in the record. Subject to these requirements, if a hearing will be expedited and the interest of the parties will not be prejudiced substantially, any part of the evidence may be received in written form. (b) Exclusion of witnesses. (1) Upon request by any party, the judge shall exclude witnesses other than parties from the hearing room, except when testifying. (2) The judge may order the witness, parties, attorneys, and all other persons present in the hearing room not to disclose to any witness excluded under this subsection the nature, substance, or purpose of testimony, exhibits, or other evidence introduced during the witness' absence. (3) A party that is not a natural person may designate an individual to remain in the hearing room, even though the individual may be a witness. sec.131.207. Documentary Evidence.
                                                    Documentary evidence may be received in the form of copies or excerpts, if the original is not readily available. On request, parties shall be given an opportunity to compare the copy with the original. When numerous documents are offered, the judge
                                                      [hearing officer] may limit those admitted to a number which are typical and representative, and may, at his discretion, require the abstracting of the relevant data from the documents and the presentation of the abstracts in the form of an exhibit; provided, however, that before making such requirement, the judge
                                                        [hearing officer] shall require that all parties of record or their representative be given the right to examine the documents from which such abstracts were made. sec.131.208. Official Notice. (a) The judge may take official notice of a fact that is judicially noticeable in accordance with the Administrative Procedure and Texas Register Act
                                                          [Official notice may be taken of all facts judicially cognizable]. (b) In addition, notice may be taken of generally recognized facts within the area of the board's specialized knowledge. Parties shall be notified either before or during the hearing, or by reference in preliminary reports or otherwise, of the material officially noticed, including any staff memoranda or data, and they shall be afforded an opportunity to contest the material so noticed. The special skills of knowledge of the board and its staff may be utilized in evaluating the evidence. sec.131.209. Prepared 23>or Prefiled Testimony.
                                                            In all contested proceedings and after service of copies upon all parties of record at such time as may be designated by the judge
                                                              [executive director or the hearing officer], the prepared, written
                                                                testimony of a witness upon direct examination, either in narrative or question and answer form, may be incorporated in the record as if read or received as an exhibit, upon the witness's being sworn and identifying the same. Such witness shall be subject to cross-examination and the prepared testimony shall be subject to a motion to strike in whole or in part. sec.131.210. Limitations on Number of Witnesses. The judge
                                                                  [executive director or the hearing officer] shall have the right in any proceeding to limit the number of witnesses whose testimony is merely cumulative. sec.131.211. Exhibits. Exhibits of documentary character shall be of such size as described
                                                                    [set forth] in sec.131.191 of this title (relating to Form and Content of Pleadings), as not unduly to encumber the files and records of the board. There shall be a brief statement on the first sheet of the exhibit of what the exhibit purports to show. Exhibits shall be limited to facts material and relevant to the issues involved in a particular proceeding. (1) Tender and service. The original of each exhibit offered shall be tendered to the reporter for identification; one copy shall be furnished to the judge
                                                                      [hearing officer], and one copy to each other party of record or his attorney or representative. (2) Excluded exhibits. In the event an exhibit has been identified, objected to, and excluded, the judge
                                                                        [hearing officer] shall determine whether or not the party offering the exhibit withdraws the offer, and if so, permit the return of the exhibit to him. If the excluded exhibit is not withdrawn, it shall be given an exhibit number for identification, shall be endorsed by the judge
                                                                          [hearing officer] with his ruling, and shall be included in the record for the purpose only of preserving the exception. (3) After hearing. Unless specifically directed by the judge
                                                                            [hearing officer, or by the board], no exhibit will be permitted to be filed in any proceeding after the conclusion of the hearing. In the event the judge
                                                                              [board] allows an exhibit to be filed after the conclusion of the hearing, copies of the late-filed exhibit shall be served on all parties of record. sec.131.212. Offer of Proof. When testimony is excluded by ruling of the judge
                                                                                [hearing officer], the party offering such evidence shall be permitted to make an offer of proof by dictating or submitting in writing the substance of the proposed testimony, prior to the conclusion of the hearing, and such offer of proof shall be sufficient to preserve the point for the record
                                                                                  [review by the board]. The judge
                                                                                    [hearing officer] may ask such questions of the witness as he deems necessary to satisfy himself that the witness would testify as represented in the offer of proof. An alleged error in sustaining an objection to questions asked on cross-examination may be preserved without making an offer of proof. sec.131.213. Depositions. The taking and use of depositions in any proceeding shall be governed by the Administrative Procedure and Texas Register Act, sec.14. [(Texas Civil Statutes, Article 6252-13a, sec.14)]. sec.131.214. Subpoenas. Under the Administrative Procedure and Texas Register Act, sec.14,
                                                                                      following written request by a party or on its own motion: (1) subpoenas for the attendance of a witness from any place in the State of Texas at a hearing in a proceeding may be issued by the board, any member thereof, the executive director, or, during the course of a hearing, by the judge
                                                                                        [hearing officer]; (2) motions for subpoenas to compel the production of books, papers, accounts, or documents shall be addressed to the board, shall be verified and shall specify as nearly as may be the books, papers, accounts, or documents desired and the material and relevant facts to be proved by them. If the matter sought is relevant, material, and necessary and will not result in harassment, imposition, or undue inconvenience or expense to the party to be required to produce the same, the board, any member thereof, or the judge
                                                                                          [executive director] may issue a subpoena, compelling production of books, papers, accounts, or documents as deemed necessary; and (3) such subpoenas shall be issued only after a showing of good cause and deposit of sums sufficient to insure payment of expenses incident to the subpoenas. Service of subpoenas and payment of witness fees shall be made in the manner prescribed in the Administrative Procedure and Texas Register Act [(Texas Civil Statutes, Article 6252-13a)], except that the mileage and per diem fees for nonparty deponents and witnesses shall be in the amount by law for employees of the State of Texas for intrastate mileage and per diem. sec.131.216. Filing of Exceptions, Briefs, and Replies.
                                                                                            Any party of record may, within 20 days after the date of service of a proposal for decision, file exceptions and briefs to the proposal for decision, and replies to such exceptions and briefs may be filed within 15 days after the date for filing of such exceptions and briefs. A request for extension of time within which to file exceptions, briefs, or replies shall be filed with the board's
                                                                                              executive director and the judge,
                                                                                                and a copy thereof shall be served on all other parties of record by the party making such request. The judge
                                                                                                  [executive director] shall promptly notify the parties of his action upon the same and allow additional time only in extraordinary circumstances where the interests of justice so require. sec.131.217. Form and Content of Briefs, Exceptions, and Replies. Briefs, exceptions, and replies shall conform as nearly as may be possible to the size and form of pleadings as described
                                                                                                    [set forth] in sec.131.191 [(1), (2), and (3)] of this title (relating to Form and Content of Pleadings). The points involved shall be concisely stated. The evidence in support of each point shall be abstracted or summarized and/or briefly stated in the form of proposed findings of fact. Complete citations to the page number of the record or exhibit referring to evidence shall be made. The specific purpose for which the evidence is relied upon shall be stated. The argument and authorities shall be organized and directed to each point properly proposed as a finding of fact in a concise and logical manner. Briefs shall contain a table of contents and authorities. Briefs, prior to the issuance of a proposal for decision, may be filed only when requested or permitted by the judge
                                                                                                      [hearing officer]. sec.131.218. Oral Argument.
                                                                                                        Any party may request oral argument prior to the final determination of any proceeding, but oral argument shall be allowed only at the sound discretion of the board. A request for oral argument shall
                                                                                                          [may] be stated
                                                                                                            [incorporated in exceptions, briefs, replies to exceptions, motions for rehearing, or] in a
                                                                                                              separate pleading
                                                                                                                [pleadings] filed with the board
                                                                                                                  . sec.131.219. Final Decision and Orders. All final decisions and orders of the board shall be in writing and shall be signed by a majority of the board members. A final decision shall include findings of fact and conclusions of law, separately stated. [Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings.] Parties shall be notified either personally or by mail of any decision or order. On written request, a copy of the decision or order shall be delivered or mailed to any party and to his attorney of record. sec.131.221. Motions for Rehearing. Except as provided in sec.131.220
                                                                                                                    [sec.131.119] of this title (relating to Administrative Finality
                                                                                                                      [Final Decision and Orders]), a motion for rehearing is a prerequisite to an appeal. A motion for rehearing must be filed within 20
                                                                                                                        [15] days after the date of rendition of a final decision or order. Replies to a motion for rehearing must be filed with the board within 30
                                                                                                                          [25] days after the date of rendition of the final decision or order, and board action on the motion must be taken within 45 days after the date of rendition of the final decision or order. If board action is not taken within the 45-day period, the motion for rehearing is overruled by operation of law 45 days after the date of rendition of the final decision or order. The board may by written order extend the period of time for filing the motions and replies and taking board action, except that an extension may not extend the period for board action beyond 90 days after the date of rendition of the final decision or order. In the event of an extension, the motion for rehearing is overruled by operation of law on the date fixed by the order, or in the absence of a fixed date, 90 days after the date of the final decision or order. The parties may by agreement, with the approval of the board, provide for a modification of the times provided in this section. sec.131.222. Rendering of Final Decision or Order.
                                                                                                                            The final decision or order must be rendered within 60 days after the date the hearing is finally closed. Because
                                                                                                                              [In] a contested case is
                                                                                                                                heard by a judge with the State Office of Administrative Hearings
                                                                                                                                  [other than a majority of the members of the board], the board may prescribe a longer period of time within which the final order or decision of the board shall be issued, normally in keeping with the scheduled quarterly meetings of the board
                                                                                                                                    . The extension, if so prescribed, shall be announced at the conclusion of the hearing by the judge after consultation with the board's executive director
                                                                                                                                      . sec.131.223. The Record. (a) The record in a contested case shall include: (1)-(5) (No change.) (6) any decision, opinion, or report by the judge
                                                                                                                                        [officer] presiding at the hearing; and (7) all staff memoranda or data submitted to or considered by the judge
                                                                                                                                          [hearing officer or member of the board] or members of the board who are involved in making the decision. (b) (No change). This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on June 4, 1993. TRD-9323832 Charles E. Nemir, P.E. Executive Director Texas State Board of Registration for Professional Engineers Proposed date of adoption: July 28, 1993 For further information, please call: (512) 440-7723 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part XVI. Coastal Coordination Council Chapter 503. Coastal Management Program 31 TAC sec.503.1 The Coastal Coordination Council (CCC) proposes new sec.503.1, to identify the boundary of the Texas Coastal Management Program (CMP) in accordance with state and federal law. In 1989, the Texas Legislature charged the General Land Office (GLO) with the responsibility of developing a long-range coastal management plan for Texas beaches and state-owned submerged land. Upon the issuance of that directive, the GLO determined that the plan should be the product of grass roots consensus- building. In 1990, a year-long series of public hearings and consensus-building workshops were held along the coast in an effort to identify and assess those issues most crucial to citizens along the Texas Gulf Coast. As a result of this process, the principal areas of identified concerns were coastal erosion, dune protection, wetlands protection, public beach access, and intergovernmental coordination. Based on recommendations received from participants in the hearings and workshops, the GLO drafted proposed legislation to improve management and protection of coastal resources. Enacted by the 72nd Legislature in 1991, the legislation expanded the scope of Texas' coastal management efforts. The legislation directed the General Land Office, in cooperation with other state agencies, to develop a comprehensive, long-term plan to manage activities affecting all coastal natural resources. The legislation amended the Coastal Coordination Act, Natural Resources Code, Subchapter F, to create the CCC, a council with the responsibility to adopt and implement the CMP as developed by the state agencies. The CCC proposes a CMP boundary developed by the GLO in cooperation with other agencies. One of the goals for the CMP is its submission to the United States Department of Commerce's National Oceanic and Atmospheric Administration (NOAA) for acceptance into the federal Coastal Zone Management Program. On June 7, 1992, Governor Ann Richards gave formal notice to NOAA that Texas intended to develop a coastal management program and submit it for approval and funding under the federal Coastal Zone Management Act (CZMA) of 1972. Governor Richards designated the GLO as the lead agency for this effort. Federal approval of the CMP will provide Texas with two major benefits. First, Texas will become eligible to receive approximately $2 million annually in federal coastal management funds. Second, through the CMP, Texas can require that federal activities along the Gulf Coast be consistent with state policies. In order to receive federal approval, the CMP must establish management boundaries in accordance with the requirements of the CZMA of 1972. The CZMA and associated federal regulations define the requirements that must be met in establishing the seaward, inland, and interstate boundaries of the State's coastal zone area. The establishment of a boundary in accordance with CZMA requirements is a task complicated by the size and ecological variability of the Texas Gulf Coast, the complexity of human activities which impact coastal resources, and the intricacies of institutional arrangements within the state. In order to fully consider these factors as well as satisfy both federal and state requirements, a CMP planning area and study area were delineated within which analyses were conducted to determine the final coastal area boundaries. The boundary determination process consisted of evaluating the planning and study areas against a set of criteria drawn from the federal and state mandates. An Interagency Coastal Area Boundary (IACAB) Work Group, composed of the staff of the GLO, Railroad Commission of Texas, Texas Department of Transportation, Texas Water Commission, Texas Department of Agriculture, Texas Parks and Wildlife Department, Texas Attorney General's Office, and Texas Water Development Board, was formed to evaluate various boundary options for the area to be managed by the CMP. The proposed boundary rule is the result of the work group's evaluations. The primary focus of the IACAB Work Group was to ensure that the inland boundary be presented clearly and exactly enough to permit determination of whether an activity or property is located within the management area. Consistent with the federal regulations, the recommended inland boundary was drawn along county lines. As known and recognized boundaries, county lines provide notice to the public, state agencies, and political subdivisions regarding the areas and activities that will be subject to the CMP. The boundary will also provide some degree of assurance to the public, state agencies, and political subdivisions that proposed activities located outside the boundary will not be subject to the CMP. Nothing in the designation of the CMP boundary will preclude the CCC from examining the impact of activities outside the boundary that have a direct impact on the Coastal Management Area. A map depicting the inland boundary accompanies this proposed rule. Spencer Reid, deputy commissioner of the GLO, has determined that for the first five-year period the rule is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the rule. Mr. Reid also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be that the mere designation of a coastal program boundary does not determine fiscal impact, but the public benefit that will ensue as a result of a county's inclusion within the boundary will be the county's entitlement to federal grant monies upon federal approval of the CMP. Although a county is included within the boundary, the entire area will not necessarily be subject to the regulations of the CMP. Only those activities addressed in CCC policies will be regulated under the CMP. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the rule as proposed. Public hearings on the CMP boundary will take place in Houston, Victoria, McAllen, Corpus Christi, and the Beaumont/Port Arthur areas. Specific dates and locations are to be announced. Comments on the proposed boundary rule may be submitted to William Foster, General Land Office, Legal Services Division, 1700 North Congress Avenue, Room 630, Austin, Texas 78701, (512) 463-5019, FAX number (512) 463-5233. In order to be considered, comments on the rules must be received in the GLO within 60 days of publication of the rules. The new rule is proposed under the Texas Natural Resources Code, sec.33. 204(a), which provides the CCC with the authority to promulgate rules adopting the goals and policies of the CMP. sec.503.1. Coastal Management Program Boundary. (a) General description of the CMP Boundary. The CMP boundary encompasses all the area within the following Texas counties: Cameron, Willacy, Hidalgo, Kenedy, Kleberg, Nueces, San Patricio, Aransas, Refugio, Calhoun, Victoria, Jackson, Matagorda, Brazoria, Fort Bend, Galveston, Harris, Chambers, Liberty, Jefferson, and Orange. The seaward reach of the boundary extends into the Gulf of Mexico to the limit of state title and ownership under the Submerged Lands Act (43 United States Code, sec.1301 et seq), three marine leagues. (b) Particular description of the CMP Boundary. The boundary is more particularly described in terms of the inland boundary, the boundary with the State of Louisiana, the seaward boundary, the boundary with the Republic of Mexico, and the excluded federal lands. (1) The inland boundary. The inland boundary begins at the western most intersection of Hidalgo County and the border with the Republic of Mexico; thence in a northeasterly direction along the Hidalgo County line until it meets the Brooks County line; thence in an easterly direction along the Hidalgo County line until it meets the Kenedy County line; thence in a northerly direction along the Kenedy County line until it meets the Kleberg County line; thence along the Kleberg County line until it meets the Jim Wells County line; thence in a northerly direction along the Jim Wells County line until it meets the Nueces County line; thence in a northerly direction along the Nueces County line until it meets the San Patricio County line; thence in a northerly direction along the San Patricio County line until it meets the Live Oak County line; thence in a northeasterly direction along the Live Oak County line until it meets the Bee County line; thence in an easterly direction along the Bee County line until it meets the Refugio County line; thence in a northerly direction along the Refugio County line until it meets the Goliad County line; thence in a northeasterly direction along the Goliad County line until it meets the Victoria County line; thence in a northwesterly direction along the Victoria County line until it meets the De Witt County line; thence in a northeasterly direction along the De Witt County line until it meets the Lavaca County line; thence in a southeasterly direction along the Lavaca County line until it meets the Jackson County line; thence in a northeasterly direction along the Jackson County line until it meets the Colorado County line; thence in a southeasterly direction along the Colorado County line until it meets the Wharton County line; thence in a southeasterly direction along the Wharton County line until it meets the Matagorda County line; thence in a northeasterly direction along the Matagorda County line until it meets the Brazoria County line; thence in a northeasterly direction along the Brazoria County line until it meets the Fort Bend County line; thence in a northwesterly direction along the Fort Bend County line until it meets the Austin County line; thence in a northerly direction along the Austin County line until it meets the Waller County line; thence in an easterly direction along the Waller County line until it meets the Harris County line; thence in a northerly direction along the Harris County line until it meets the Montgomery County line; @thence in an easterly direction along the Montgomery County line until it meets the Liberty County line; thence in a northerly direction along the Liberty County line until it meets the San Jacinto County line; thence in a northeasterly direction along the San Jacinto County line until it meets the Polk County line; thence in an easterly direction along the Polk County line until it meets the Hardin County line; thence in a southeasterly direction along the Hardin County line until it meets the Jefferson County line; thence in an easterly direction along the Jefferson County line until it meets the Orange County line; thence in a northerly direction along the Orange County line until it meets the Jasper County line; thence in an easterly direction along the Jasper County line until it meets the Newton County line; thence in an easterly direction along the Newton County line until it meets the adjudicated boundary with the State of Louisiana. (2) The boundary with the State of Louisiana. The boundary with the State of Louisiana begins at the northernmost intersection of Orange County and the adjudicated boundary between the State of Texas and the State of Louisiana, as established by the United States Supreme Court in Texas v. Louisiana
                                                                                                                                            , 410 United States 702 (1973); thence in a southerly direction along the adjudicated boundary out into the Gulf of Mexico until it intersects the seaward boundary. (3) The seaward boundary. The seaward boundary is that line marking the seaward limit of Texas title and ownership under the Submerged Lands Act (43 United States Code, sec.1301 et seq), as recognized by the United States Supreme Court in United States v. Louisiana et al
                                                                                                                                              , 364 United States 502 (1960). (4) The boundary with the Republic of Mexico. The boundary with the Republic of Mexico begins at a point three marine leagues into the Gulf of Mexico where the line marking the seaward limit of Texas title and ownership under the Submerged Lands Act (43 United States Code, sec.1301 et seq) intersects the international boundary between the United States and the Republic of Mexico, as established pursuant to the Treaty of Guadalupe-Hidalgo (February 2, 1848) between the United States and the Republic of Mexico; thence in a westerly direction along the international border with the Republic of Mexico until it meets that point on the border marking the western most intersection of Hidalgo County. (5) The excluded federal lands. The excluded federal lands are those lands owned, leased, held in trust or whose use is otherwise by law subject solely to the discretion of the federal government, its officers or agents. [graphic] 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 June 7, 1993. TRD-9323889 Garry Mauro Commissioner Coastal Coordination Council Proposed date of adoption: August 13, 1993 For further information, please call: (512) 463-5007 TITLE 34. PUBLIC FINANCE Part IV. Employees Retirement System of Texas Chapter 85. Flexible Benefits 34 TAC sec.85.3 The Employees Retirement System of Texas proposes an amendment to sec.85.3, concerning Eligibility and Participation. The amendment will allow a state or higher education employee who has elected to not participate in premium conversion to continue this election from year to year without executing a new form each year. The employee may again participate in premium conversion by executing a form to do so. William S. Nail, general counsel, has determined that for the first five-year period the rule is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the rule. Mr. Nail also has determined that for each year of the first five years the rules is in effect the public benefit anticipated as a result of enforcing the rule as proposed will be that administrative procedures will be simplified and state and higher education employees will not have to re-execute a form to not participate in premium conversion each year. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the rule as proposed. Comments on the proposal may be submitted to William S. Nail, General Counsel, P.O. Box 13207, Austin, Texas 78711-3207. The amendment is proposed under the Insurance Code, Article 3.50-2, sec.4(k) which provides the Employees Retirement System of Texas with the authority to promulgate all rules and regulations necessary to implement and to administer and Flexible Benefits (Cafeteria Plan) program for state employees. sec.85.3. Eligibility and Participation. (a) Premium conversion. (1) Eligibility. Any employees initially
                                                                                                                                                participating in the Texas Employees
                                                                                                                                                  Uniform Group Insurance Program under the [Texas] Insurance Code, Article 3.50-2, who has insurance premium expenses, which exceed the state's and institution's contribution for insurance, is eligible to participate in premium conversion and
                                                                                                                                                    shall be automatically enrolled in the premium conversion plan, unless the employee elects not to participate. (2) (No change.) (3) Duration of participation. (A)-(C) (No change.) (D) An employee who is ineligible to participate or who is eligible and elects not to participate in premium conversion and who becomes or remains eligible to participate in a subsequent plan year, will continue to not participate in premium conversion unless the employee executes
                                                                                                                                                      [and who wish to continue to decline participation must execute] a new TexFlex election form [annually] during the annual enrollment period or under the change in family status rules and elects to participate (4) (No change.) (b)-(c) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on May 28, 1993. TRD-9323766 Charles D. Travis Executive Director Employees Retirement System of Texas Earliest possible date of adoption: July 12, 1993 For further information, please call: (512) 867-3336 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part VI. Texas Department of Criminal Justice Chapter 152. General Allocation Rules Subchapter A. Institutional Division Admissions 37 TAC sec.sec.152.1-152.3 The Texas Department of Criminal Justice proposes amendments to sec.sec.152. 1-152.3, concerning allocation of admissions to the Texas Department of Criminal Justice. By separate proposed rule, filed contemporaneously with this proposed rule, the Texas Department of Criminal Justice also proposed to add new sec.163.45, Allocation Formula for Community Supervision and Corrections Department Funding. The proposed new sec.163.45 will create a separate allocation formula for distribution of funding to community supervision and corrections departments (CSCDs). The proposed severance of the two formulas for beds and for funding for CSCDs is authorized by amendments to the Texas Government Code, sec.499.071, adopted by the 73rd Legislature in Senate Bill 532. Under the Texas Government Code, sec.499.071, as amended, the Texas Board of Criminal Justice is required to promulgate a formula for allocation of admissions to the Institutional Division, and is further required to amend that formula annually, the board is required by law to include certain statutory factors in the formula, and has discretion to add other factors. The board is further required to use up-dated data each time it revises the formula. Data base changes would, of course, produce some alterations in the percentages of admissions allocated to each county, even if the board did not propose to alter the factors included in the formula, or the weights assigned to those factors. The proposed amendments to sec.152.2, Definitions, updates the definition of capacity to include new construction and the adjustments to capacity permissible under the Texas Government Code, sec.499.101, and the implementing rules as published at sec.152.11 and s152.12. The proposed amendment to sec.152.3(b) adds a new discretionary factor for the county's percentage of the total number of paper-ready felons confined in all jails in all counties during the preceding 12-month period. This new factor is also in the funding formula set out in sec.152.3(c), where it is denominated "jail backlog." The proposed amendments to sec.152.3(c) published herein for the allocation of admissions include the following proposed changes to the weights to be assigned to the factors which are mandated by statute: the weight for violent index crimes is reduced from 15 to ten; the weight for all index crimes is reduced from 20 to ten; the weight for parole releases is increased from ten to 15. The proposed amendments to sec.152.3(c) also include the amendments to the discretionary factors used in the FY 1993 allocation formula. The board proposes the following changes to the discretionary factors: the weight for probation placements is decreased from ten to five; the weight for juvenile probation funding is decreased from ten to five; and the board adds a new factor for the "jail backlog population" and gives that new factor a weight of 20. David McNutt, Assistant Director of Budget and Management Services for TDCJ, has determined that for the first five-year period the rules are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the rules. The adoption of the proposed amendments will impose additional costs on those counties which lose beds under the new formula, while somewhat reducing costs to those counties that gain beds. Since each county's costs for holding prisoners varies, it is not possible to ascertain the exact fiscal impact in each county. Mr. McNutt, also has determined that for each year of the first five years the rules are in effect the public benefit anticipated as a result of enforcing the rules will be an equitable distribution of the capacity of the Institutional Division to receive new prisoners from county custody. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the rules as proposed. Comments on the proposal may be submitted to Cathy McVey, Classification Department, Texas Department of Criminal Justice, P.O. Box 99, Huntsville, Texas 77342-0099, (409) 294-6232. The amendments are proposed under the Texas Government Code, sec.499.071, which provides the Texas Board of Criminal Justice with authority to adopt an allocation formula for admissions to the Institutional Division. sec.152.1. Purpose. The Texas Government Code, sec.499.071, et seq
                                                                                                                                                        [Texas Civil Statutes, Article 6166a-4], requires the board to adopt and enforce an allocation formula to fairly and equitably allocate to each county the available institutional division admissions until sufficient capacity is available in the institutional division to accept all prisoners eligible for transfer to the institutional division. An annual determination by the board that there is insufficient capacity in the institutional division to accept all prisoners from Texas county jails who are eligible for transfer into the institutional division as soon as they become eligible shall make it necessary to adopt and enforce such a formula. sec.152.2. Definitions and Exceptions. (a) The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. (1) Available institutional division admissions-The total number of beds available within the institutional division for intake of prisoners is based upon the estimated rate of release of prisoners from the institutional division, minus .03333 of those beds which is adequate to allow the institutional division to expeditiously receive from the counties any new prisoners who are sentenced to death, or who are recaptured escapees, pre-parole violators, institutional division prisoners returning from federal bench warrants, interstate corrections compact transfers, and out-of-state parole violators. Therefore, the number of admissions available is based upon [an estimated] the rate of prisoner flow through the institutional division, [to maintain the institutional division capacity], plus any new beds added to capacity through the mechanisms permitted under sec.152.11 and s152. 12 of this title (relating to Definitions; Methodology for Changing Maximum System Population). (2) Institutional division capacity-The total number of beds available for use within the institutional division, in accordance with the limitations on capacity and its use imposed by federal court orders in Ruiz vs.
                                                                                                                                                          Lynaugh, Number H-78-987 (Southern District Texas, Houston Division), and the rules concerning capacity set out at s152.11 and sec.152.12 of this title.
                                                                                                                                                            [Available institutional division capacity at the time of the adoption of this section will be no more than 47,273. When the Lewis unit is populated and in operation, available institutional division capacity will be no more than 49,331]. (b) The institutional division may suspend or cancel admissions when the acceptance or transport of prisoners would be unsafe, such as in cases of extremely severe weather or civil disturbance, or would cause noncompliance with federal court orders. The institutional division is not required to make up for admissions so suspended or canceled. On days that the institutional division is closed due to holidays, the number of admissions is decreased by the number of days of closure multiplied by the current number of daily admission. The balance of admissions for the week is prorated out to the counties based upon their allocated percentage of intake. sec.152.3. Allocation Formula. (a) (No change.) (b) The board has discretion to add other factors which are not mandated by the legislature. In the exercise of that discretion, the board adds the following factors reflecting community effort: (1) the county's percentage of the state's total number of persons placed on probation during the preceding calendar year, as determined by the Criminal Justice Division of the Texas Department of Corrections. "Probation placements" are defined as including felons placed on regular probation, and felons placed in a special program, either through direct sentencing by the court, persons given shock probation; (2) the county's percentage of the state's total number of persons completing probation during the preceding calendar year (as determined by the Community Justice Assistance Division) whose probations were terminated either through early discharge or the expiration of the full term of probation; (3) the county's percentage of the state's total funds expended by counties for juvenile probation services in the most recently audited county fiscal year, as determined by the Texas Juvenile Probation Commission staff; (4) the county's percentage of the total number of paper-ready felons backlogged in all county jails during the most recently completed 12-months, as determined from reports submitted by the counties to the Texas Jail Standards Commission. (c) The board assigns the following weight to each statutory and discretionary factor. [graphic] (d)-(e) (No change.) (f) This formula gives each county a fixed percentage of institutional division admissions, as follows: [graphic] 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 June 7, 1993. TRD-9323927 Jackee Cox General Counsel Texas Department of Criminal Justice Proposed date of adoption: September 1, 1993 For further information, please call: (512) 463-9988 Chapter 155. Reports and Information Gathering Subchapter A. Construction Matters 37 TAC sec.155.1 The Texas Department of Criminal Justice proposes an amendment to sec.155. 1, concerning Procedures to Determine Prevailing Wage Rates. Specifically, the Department proposes an amendment to sec.155.1(e)(2)(B), to assure that the Board of Criminal Justice has the power to correct a rate published by the division, if the board receives information which indicates that the prevailing wage rates published by the Contract Construction Division do not reflect prevailing wages in a locality or localities, as required under Texas Civil Statutes, Article 5159a. David McNutt, assistant director of budget and management services, has determined that the enforcement or administration of this rule will have fiscal implications. The prevailing wage rates set by state agencies serve to establish the minimum permissible wage that may be paid on a project; the agency rate publication sets a floor rather than a ceiling on the wages that will actually be paid for the work to be done. The actual rates to be paid on a project are established as a result of the market place, and the bargained exchange between contractors or subcontractors and their labor force. For these reasons, and because the department cannot predict how much construction will actually be done for five years in the future, this fiscal note is confined to immediate impact. The contract construction division of the TDCJ has obtained projections of the number of work-hours that each skilled labor craft will be required to work to build the Beto I transfer facility now under construction near Palestine. Using those project hours, and adjusting for project differences at the proposed similar project to be built at Chase Field in Bee County, contract construction division staff estimate that $1,953,988 might be saved in labor costs if the board and staff have authority to reject published survey rates and adopt a rate which more accurately reflects the actual prevailing wages in a locality. During calendar year 1993, the potential labor cost savings on the Chase Field project are accordingly estimated to be about $1,221,000. During calendar year 1994, the potential labor cost savings on the same project are projected to be about $732,000. Staff reasonably believe that similar savings may be obtained in future years on like projects. Mr. McNutt also has determined that for each year of the first five years the rule is in effect the public will benefit from the adoption of this rule, because it will have a more accurate means of establishing the actual prevailing wage rates for state prison construction projects. Comments on the proposal may be submitted to Larry Fickel, Assistant Director for Contract Construction, Institutional Division, Texas Department of Criminal Justice, P.O. Box 99, Huntsville, Texas 77342-0099. The amendment is proposed under Texas Civil Statutes, Article 5192a, which require state agencies to ascertain prevailing wages in the localities where such agencies are going to construct state-funded projects. Texas Government Code, sec.492.013, confers authority upon the Texas Board of Criminal Justice to adopt rules governing the operation of the Texas Department of Criminal Justice. sec.155.1. Procedures for Determination of Prevailing Wages. (a)-(d) (No change.) (e) Use of determination. (1) (No change.) (2) Following determination of the Prevailing Wage Rates for a particular project, such Prevailing Wage Rates will not be changed unless: (A) (No change.) (B) If the board or the division has reason to believe that survey data do not reflect the prevailing wages in a locality or uniform service region, then the board may direct staff to obtain the most accurate documentation available concerning prevailing wages, and to publish prevailing wage rates that accurately reflect the prevailing wage rates in the locality. [If prior to bid date for that project substantial evidence is presented to the Division that the survey data on which determination was based does not reflect actual prevailing wages in the locality. 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 June 2, 1993. TRD-9323735 Jackee Cox General Counsel Texas Department of Criminal Justice Proposed date of adoption: July 16, 1993 For further information, please call: (512) 463-9988 Chapter 163. Community Justice Assistance Division Rules Subchapter C. Programs and Services 37 TAC sec.163.45 The Texas Board of Criminal Justice (TBCJ) proposes new s163.45, concerning Allocation Formula for Community Corrections Program funding. Previously, the Texas Government Code, sec.499.071, required the TBCJ to adopt a single allocation formula which was to govern both the distribution of admissions to the Institutional Division and the distribution of Community Corrections Program (CCP) funding for community supervision and corrections departments (CSCDs) under the Texas Code Criminal Procedures, Article 42.13, sec.11(a)(3). Senate Bill 532, passed during the 73rd Legislature, authorizes the TBCJ to adopt differing allocation formulas for Institutional Division admissions and for CCP funding. Because differing policy purposes and considerations govern the functions of funding and admissions, the TBCJ is therefore proposing two separate allocation formulas. The formula for Institutional Division admissions is being published contemporaneously as amendments to sec.152.1, et seq. Under the Texas Government Code, sec.499.071, as amended by Senate Bill 532, the TBCJ must consider the statutory factors listed at the Texas Government Code, sec.499.071(a), and may add other discretionary factors for CCP funding. Under the newly proposed formula for funding, the TBCJ proposes adoption of the following weights for the factors mandated by statute: the weight assigned to historical admissions to the Institutional Division remains unchanged at ten; the weight assigned to violent index crime is to be reduced from 15 to ten; the weight assigned to total index crime is to be reduced from 20 to 15; the weight assigned for drug crime arrests remains unchanged, at ten; the weight assigned to population is to be increased from five to ten; the weight assigned to unemployment remains unchanged at five; the weight assigned to parole releases is to be decreased from ten to five. The board further proposes to exercise its discretion to add factors to the funding formula by adding a new factor for felons under direct probation supervision, and to give that factor a weight of 35. The board further proposes to delete from the funding formula the below-listed discretionary factors, which were given the below-indicated weights for FY 1993 funding: probation placements, previously weighted at ten; probation completions, previously weighted at five; and juvenile probation funding, previously weighted at ten. Proposed new sec.163.45(e) is designed to ensure that no entity either receives a drastic increase or decrease in operational funding as a result of these proposed amendments. It provides that no CSCD shall receive an increase in funding of more than 17%, nor a decrease in funding of more than 8.0%, in any state fiscal year as a result of the changes in the allocation funding formula. David McNutt, assistant director of budget and management services for TDCJ, has determined that these allocation formula rule will not impact state government period the rule or small businesses. No persons will be required to comply; therefore, they will not be affected Some counties may receive increased CCP funding under the proposed amendments, while others may receive decreased CCP funding under the amendments. CJAD has sent all CSCD directors information indicating the impact which the proposals may have on their funding. The information distributed assumed that about $45,032,000 would be made available for CCP funding. Whether that amount will actually be available for CCP funding is still to be determined by the TBCJ. Article V, Section 110 of the appropriations bill for FY 1994 (at pp. V-89 and V-90) requires a state-wide savings of about $100 million in General Revenue spending. According to the Comptroller's Office, that will require that all state agencies save about one-half of 1.0% of their General Revenue appropriations. Further, Article V, Section 160 of the Appropriations Act requires that all state agencies save about one-fourth of 1. 0% of their General Revenue appropriations to pay for early retirement. Aggregated, these require General Revenue savings totaling three-fourths of 1.0%. The TBCJ will have to decide how to apportion these cuts. If they determined that probation funding should bear its prorata share of these cuts with parole and the institutional division, then proposed community corrections funding may be reduced by three-fourths of 1.0%, since such funding is derived from General Revenue. Under the proposed formulas, all CSCD's would share equally in any cuts which the TBCJ may decide to impose on CCP funding. Mr. McNutt also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule reflects legislative intent to give the TBCJ discretion to use the allocation formula funding for community corrections programs in a way that more nearly reflects program need, without being tied to the allocation formula for institutional division admissions. This rule will continue in effect only for one year, as the board is required by law to amend the allocation formulas annually. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the rule as proposed. Comments on the proposal may be submitted to John Newton, Director of Planning and Program Development, Community Justice Assistance Division, Texas Department of Criminal Justice, 8100 Cameron Road, Suite 450B, Austin, Texas 78754-3897. The new section is proposed under the Texas Government Code, sec.499.071, as amended by Senate Bill 532, 73rd Legislative Session, and under Article 42.13, sec.11(a)(3), which require the Texas Board of Criminal Justice to promulgate an allocation formula for the distribution of CCP funds. sec.163.45. Allocation Formula for Community Corrections Program. (a) Purpose. The Texas Government Code, sec.499.071(b), requires the Texas Board of Criminal Justice (TBCJ) to adopt and enforce an allocation formula to fairly and equitably allocate community corrections funding to each community supervision and corrections department (CSCD). The statute further requires the TBCJ to use all of the factors listed in the Texas Government Code, sec.499.071(a), in the funding formula, while giving the TBCJ discretion to add other factors, and to assign weights to each of the statutory and discretionary factors. (b) Statutory formula factors. In creating the allocation formula for Community Corrections Program funding, the board is required to consider and weigh each of the following factors: (1) the percentage of prison admissions for the entire state that were allocated to the county in the preceding 12 months; (2) the percentage of the state's violent index crime that occurred in the county in the preceding 12 months; (3) the percentage of the state's total index crime that occurred in the county in the preceding 12 months; (4) the percentage of the state's total arrests under the Texas Controlled Substances Act, the Health and Safety Code, Chapter 481, that occurred in the county or counties in the preceding 12 months; (5) the percentage of the state's population residing in the county or counties; (6) the percentage of the state's total unemployment in the county or counties; and (7) the percentage of all defendants serving sentences for felonies who were paroled from the institutional division, a jail in this state, or a jail or correctional institutional in another state in the preceding 12 months and who were released to reside in the county or counties. (c) Discretionary factors. The board has discretion to add other factors which are not mandated by the legislature. In the exercise of that discretion, the board adds as a factor the county's percentage of all felony probationers under direct supervision in the state during the preceding 12 months. (d) Factor weights. The board assigns the following weight to each statutory and discretionary factor. [graphic] (e) Weighted statutory and discretionary factors. These weighted statutory and discretionary factors shall be applied to determine the percentage of total funds appropriated by the Legislature for distribution to each county pursuant to the provisions of the current appropriations bill and the provisions of the Texas Code of Criminal Procedure, Article 42.13, sec.11(a) (3). No CSCD may obtain a funding increase of more than 17% in any fiscal year as a result of this formula amendment. Nor may any CSCD suffer a funding cut of more than 8.0% in any fiscal year as a result of this formula amendment. Eligibility for participation in such funding shall be contingent upon a county's compliance with other rules of the Department as published at 37 TAC Chapter 163. 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 June 7, 1993. TRD-9323928 Jackee Cox General Counsel Texas Department of Criminal Justice Proposed date of adoption: September 1, 1993 For further information, please call: (512) 463-9988 Part XIII. Texas Commission on Fire Protection Chapter 421. Standards For Certification 37 TAC sec.421.5 The Texas Commission on Fire Protection proposes an amendment to sec.421.5, concerning the definition for fire protection personnel. The amendment conforms the definition of fire protection personnel to the statutory definition. Alton Bostick, standards and licensing division director, has determined that for the first five years the rule is in effect there will be no fiscal implications for state and local governments as a result of enforcing or administering the amended rule. Mr. Bostick also has determined that for each year of the first five years that the rule as proposed is in effect the public benefit anticipated as a result of enforcing the rule as proposed will be the deletion of obsolete language and an elimination of any conflict with changes to the statutory definition of fire protection personnel. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the rule as proposed. Comments on the proposal may be submitted to Jim Fiero, Chairman, Fire Protection Personnel Advisory Committee, P.O. Box 2286, Austin, Texas 78768- 2286. The amendment is adopted under the Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and the Texas Government Code, sec.419.023, which provides the commission with authority to establish a fire protection personnel advisory committee. sec.421.5. Definitions. (a) (No change.) (b) Definitions [used] include: (1)-(13) (No change.) (14) Fire Protection Personnel-See definition in the Texas Government Code, sec.419.021.
                                                                                                                                                              [Any person who is a full-paid permanent employee of a government entity and who is assigned full-time duties in one of the following categories: fire suppression, fire inspection, fire and arson investigation, marine fire fighting, aircraft crash and rescue fire fighting, fire training, fire education, fire administration and others employed in related positions necessarily or customarily appertaining thereto]. (15)-(26) (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 June 5, 1993. TRD-9323872 Jack Woods General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: July 12, 1993 For further information, please call: (512) 873-1700 Chapter 423. Fire Suppression Subchapter B. Minimum Standards for Aircraft Crash and Rescue Fire Protection Personnel 37 TAC sec.423.201 The Texas Commission on Fire Protection proposes an amendment to sec.423. 201, concerning minimum standards for aircraft crash and rescue fire protection personnel. The amendment clarifies various terms used in the section by adding definitions of the terms "stand by" and "movement area." Alton Bostick, standards and licensing division director, has determined that for the first five-year period the rule is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the rule. Mr. Bostick also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be a clearer understanding of the personnel to whom the aircraft rescue and fire protection personnel rules apply. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the rule as proposed. Comments on the proposal may be submitted to James Fiero, Chairman, Fire Protection Personnel Advisory Committee, P.O. Box 2286, Austin, Texas 78768- 2286. The amendment is adopted on an emergency basis under the Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and sec.419.022, which provides the Commission with authority to establish minimum training standards for fire protection personnel in advanced or specialized fire protection personnel positions. sec.423.201. Minimum Standards for Aircraft Crash and Rescue Fire Protection Personnel. (a) The effective date of this section shall be April 1, 1993. (b) Aircraft rescue and fire protection personnel are employees of a local governmental entity who, as a permanent duty assignment, fight aircraft fires at airports; stand by for potential crash landings; and perform aircraft rescue and firefighting duties. (c) All personnel identified as aircraft rescue and fire protection personnel must be certified to at least the basic level by the Commission. (d) As a minimum, all personnel must have completed all requirements specified in sec.423.203 of this title (relating to Minimum Standards for Basic Aircraft Rescue and Fire Protection Personnel Certification) prior to being assigned to aircraft rescue and fire suppression duties. (e) "Stand by" means the act of responding to a designated position in the movement area on the airfield at which initial response fire and rescue units will await the arrival of an aircraft experiencing an announced emergency. (f) "Movement area" is comprised of all runways, taxiways, and other areas of the airport which are used for taxiing or hover taxiing, take-off, and landing of aircraft, exclusive of loading ramps and aircraft parking areas. (g)
                                                                                                                                                                [(e)] All personnel holding any level of aircraft rescue and fire protection personnel certification shall be required to comply with the continuing education specified in s441.9 of this title (relating to Continuing Education Requirements for Aircraft Rescue and Fire Protection Personnel). 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 June 5, 1993. TRD-9323873 Jack Woods General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: July 12, 1993 For further information, please call: (512) 873-1700 Chapter 425. Fire Protection Instructor Certification 37 TAC sec.sec.425.1, 425.3, 425.5, 425.7, 425.9 (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 Commission on Fire Protection or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas Commission on Fire Protection proposes the repeal of sec.sec.425.1, 425.3, 425.5, 425.7, and 425.9 concerning Fire Protection Instructor Certification. The repealed sections are replaced by new sections concerning the same subject matter. Mr. Alton Bostick, standards and licensing division 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. Bostick also has determined that for each year of the first five years the repeals are in effect the public benefit anticipated as a result of enforcing the repeals will be to eliminate obsolete provisions. 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. Comments on the proposal may be submitted to Jim Fiero, Chairman, Fire Protection Personnel Advisory Committee, P.O. Box 2286, Austin, Texas 78768- 2286. The repeals are proposed under the Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and sec.419.028(b)(3), which provides the commission the authority to certify persons as qualified fire protection personnel instructors under conditions the commission prescribes. sec.425.7. Minimum Standards For Master Fire Protection Instructor Certification. sec.425.9. Minimum Standards for Instructional Specialist Certification. 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 June 5, 1993. TRD-9323879 Jack Woods General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: July 12, 1993 For further information, please call: (512) 873-1700 37 TAC sec.sec.425.1, 425.3, 425.5, 425.7 The Texas Commission on Fire Protection proposes new sec. s425.1, 425.3, 425.5, and 425.7, concerning Fire Service Instructor Certification; new sec.sec.425.301, 425.303, 425.305, and 425.307, concerning Fire Education Specialist Certification; and new sec.425.401, concerning Associate Instructor Certification. The new sections replace existing sections concerning the same subject matter. The new sections pertaining to fire education specialists permit fire instructors not employed by fire departments to achieve higher levels of instructor certification. The new section pertaining to associate instructor certification permits certification of instructors who are not in the fire service but have expertise in areas of fire protection or prevention. Mr. Alton Bostick, standards and licensing division director, has determined that for the first five years the rules are in effect there will be fiscal implications for state governments as a result of enforcing or administering the amended sections. It is estimated that the commission will receive an additional $2,400 each year of the first five-year period the rules are in effect, as a result of additional applications for higher levels of fire educational specialist certification and associate instructor certification and renewals. There will be no effect on local government for the first five-year period the section will be in effect, unless a local government that employs a fire instructor voluntarily chooses to pay the $20 certification fee for higher levels of certification. Mr. Bostick also has determined that for each year of the first five years the rules are in effect the public benefit anticipated as a result of enforcing the rules will be to provide incentives for more fire instructors to obtain advanced levels of certification and thereby increase the level of expertise of instruction of fire protection personnel. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the rules as proposed. Comments on the proposal may be submitted to Jim Fiero, Chairman, Fire Protection Personnel Advisory Committee, P.O. Box 2286, Austin, Texas 78768- 2286. The new sections are proposed under the Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties and sec.419.028(b)(3), which provides the commission the authority to certify persons as qualified fire protection personnel instructors under conditions the commission prescribes. sec.425.1. Minimum Standards For Basic Fire Service Instructor Certification. (a) Fire Service Instructor certificates will be issued by the commission when an individual completes the training and teaching requirements designated in the various certification levels. Complete course descriptions are on file in the commission office for all instructor courses listed in this section. (b) In order to be certified as a Basic Fire Service Instructor the individual must: (1) be permanent, fully paid, full-time fire protection personnel as defined in sec.425.5 of this title (relating to Definitions); (2) have a minimum of three years full time experience relating to fire protection in one or more or any combination of the following: (A) a paid fire department; or (B) a department of a state agency, education institution, or political subdivision providing protection training and related responsibilities; (3) be a high school graduate or possess a GED certificate; (4) be approved by his/her fire chief or training officer; (5) possess at least an active basic certificate from the commission in one of the following disciplines: (A) structural fire protection personnel; (B) aircraft crash and rescue fire protection personnel; (C) marine fire protection personnel; (D) fire inspection personnel; or (E) fire and arson investigation personnel. (6) have completed "Instructional Techniques for Company Officers" or 15 class hours of teacher instructional training courses; and (7) submit an instructor application, with documentation to verify the aforementioned requirements, to the commission for processing. (c) Approved areas of instruction shall include the following. (1) Possession of one or more active certifications listed in sec.425.1(b)(5) will be considered as documentation of knowledge/expertise to instruct in all of the subject areas identified in the curricula in which the certificate(s) are held. (2) Individuals desiring to instruct in basic and advanced subjects they have not previously been approved for must have completed the course they are seeking to instruct or have completed comparable training in the same subject area. Proof of training shall be attached to and submitted with a Course/School Prior Approval Form (CFP-T) when making application for course approval by the commission. Proof of training in a subject need be submitted only once. The following items are acceptable for proof of training: (A) a copy of a commission approved certificate of completion bearing the course approval number and course identification number; (B) semester courses of equivalent training identified on college transcripts; or (C) complete written documentation of equivalent training for staff review. (d) The Basic Fire Service Instructor Certification meets requirements of NFPA 1041, Standard for Fire Service Instructor Professional Qualifications, for Fire Instructor Level I. sec.425.3. Minimum Standards For Intermediate Fire Service Instructor Certification. (a) In order to be certified as an Intermediate Fire Service Instructor, the individual must: (1) have completed all the requirements listed in s425.1(b) of this title (relating to Minimum Standards for Basic Fire Service Instructor Certification), except for subsection (b)(6) (Note: Basic Fire Service Instructor Certification is not a prerequisite for Intermediate Fire Service Instructor Certification.); and (2) have completed a commission approved "Methods of Teaching" course consisting of at least 40 class hours or three college semester hours or the National Fire Academy course, "Instructional Methodology." (b) The Intermediate Fire Service Instructor Certification meets requirements of NFPA 1041, Standard for Fire Service Instructor Professional Qualifications, for Fire Instructor Level I and Fire Instructor Level II. Instructors wanting to meet NFPA 1041 for Fire Service Instructor Level II must meet the requirements for Fire Service Instructor I. sec.425.5. Minimum Standards For Advanced Fire Service Instructor Certification. (a) In order to be certified as an Advanced Fire Service Instructor the individual must: (1) hold as a prerequisite an Intermediate Fire Service Instructor certificate; (2) be a full-time, fully paid member of a fire department, as defined in sec.421.5 of this title (relating to Definitions) and have, as a minimum, five years of experience in one or more or any combination of the following: (A) a paid fire department; or (B) a department of a state agency, education institution, or political subdivision, devoting full time to fire service training and related responsibilities; and (3) successfully complete the following commission-approved instructor training courses: (A) A commission-approved "Instructional Aids" course of at least 40 hours or 3 college semester hours (the National Fire Academy course, "Instructional Methodology," can be substituted for "Methods of Teaching" and "Instructional Aids"); and (B) A commission-approved course in "Analysis and Course Making" consisting of at least 40 class hours or 3 college semester hours; and (C) A commission approved course in "Organization and Use of Instructional Materials" consisting of at least 40 hours or 3 college semester hours. (The National Fire Academy course "Course Development" can be substituted for "Analysis and Course Making" and "Organization and Use of Instructional Material".) (b) The Advanced Fire Service Instructor Certification meets requirements of NFPA 1041, Standard for Fire Service Instructor Professional Qualifications, for Fire Instructor Level III. Instructors wanting to meet NFPA 1041 for Fire Service Instructor Level III must meet the requirements for Fire Service Instructor II. sec.425.7. Minimum Standards For Master Fire Service Instructor Certification. (a) In order to be certified as a Master Fire Service Instructor the individual must: (1) hold as a prerequisite an Advanced Instructor certification; and (2) hold as a prerequisite a Master Structural Fire Protection Personnel Certification, a Master Aircraft Crash and Rescue Fire Protection Personnel Certification, Master Inspector Certification, or Master Fire and Arson Investigator Certification. (b) The Master Fire Service Instructor Certification meets requirements of NFPA 1041, Standard for Fire Service Instructor Professional Qualifications, for Fire Instructor Level IV only if Fire Administration I and Fire Administration II (college level) are completed. Instructors wanting to meet NFPA 1041 for Fire Service Instructor Level IV must meet the requirements for Fire Service Instructor Level III. sec.425.301. Minimum Standards For Basic Fire Education Specialist Certification. (a) Fire Education Specialist certificates will be issued by the commission when an individual completes the training and teaching requirements designated in the various certification levels. Complete course descriptions are on file in the commission office for all instructor courses listed in this section. (b) In order to be certified as a Basic Fire Education Specialist the individual must: (1) be a full-time, fully paid employee of a department of a state agency, an education institution, or political subdivision providing fire protection training and have a minimum of three year's full-time experience in one or more or any combination of the following: (A) a paid fire department; or (B) a department of a state agency, an education institution, or political subdivision fire protection training; (2) be a high school graduate or possess a GED certificate; (3) be approved by his/her employer, department head, or coordinator; (4) have completed "Instructional Techniques for Company Officers" or 15 class hours of teacher instructional training courses; and (5) submit an instructor application, with documentation to verify the aforementioned requirements, to the commission for processing. (c) Approved Areas of Instruction Shall Include: (1) Individuals shall provide acceptable proof of training at the time of application in each subject area they desire to provide instruction in. Individuals must have completed the course they are seeking to instruct or have completed comparable training in the same subject area. Proof of training in a subject need be submitted only once. The following items are acceptable for proof of training: (A) a copy of a commission-approved certificate of completion bearing the course approval number and course identification number; (B) college semester courses of equivalent training identified on college transcripts; or (C) complete written documentation of equivalent training for staff review. (2) Individuals desiring to instruct in basic and advanced subjects they have not previously been approved for must meet the requirements of sec.425.301(c)(1) for acceptable proof of training. Proof of training shall be attached to and submitted with a Course/School Prior Approval Form (CFP-T) when making application for course approval by the commission. (d) The Basic Fire Education Specialist Certification meets requirements of NFPA 1041, Standard for Fire Service Instructor Professional Qualifications, for Fire Instructor Level I. sec.425.303. Minimum Standards For Intermediate Fire Education Specialist Certification. (a) In order to be certified as an Intermediate Fire Education Specialist, the individual must: (1) have completed all the requirements listed under sec.425. 301(b) of this title (relating to Minimum Standards for Basic Fire Education Specialist Certification) except for paragraph (5) (Note: Basic Fire Education Specialist certification is not a prerequisite for Intermediate Fire Education Specialist Certification.); and (2) have completed a commission-approved "Methods of Teaching" course consisting of at least 40 class hours or three college semester hours, or the National Fire Academy course, "Instructional Methodology". (b) The Intermediate Fire Education Specialist Certification meets requirements of NFPA 1041, Standard for Fire Service Instructor Professional Qualifications, for Fire Instructor Level I and Fire Instructor Level II. Instructors wanting to meet NFPA 1041 for Fire Service Instructor Level II must meet the requirements for Fire Service Instructor I. sec.425.305. Minimum Standards For Advanced Fire Education Specialist Certification. (a) In order to be certified as an Advanced Fire Education Specialist must: (1) hold as a prerequisite an Intermediate Fire Education Specialist certificate; (2) be a full-time, fully paid employee of a department of a state agency, an educational institution or political subdivision devoted full-time to fire service training and related responsibilities, and have a minimum of five years' full-time experience in one or more or any combination of the following: (A) a paid fire department; or (B) a department of a state agency, an education institution or political subdivision devoting full time to fire service training and related responsibilities; and (3) successfully complete the following commission approved instructor training courses: (A) A commission-approved "Instructional Aids" course of at least 40 hours or three college semester hours (the National Fire Academy course, "Instructional Methodology" can be substituted for "Methods of Teaching" and "Instructional Aids"); and (B) A commission-approved course in "Analysis and Course Making" consisting of at least 40 class hours or three college semester hours; and (C) A commission-approved course in "Organization and Use of Instructional Materials" consisting of at least 40 hours or three college semester hours. (The National Fire Academy course "Course Development" can be substituted for "Analysis and Course Making" and "Organization and Use of Instructional Material".) (b) The Advanced Fire Education Specialist Certification meets requirements of NFPA 1041, Standard for Fire Service Instructor Professional Qualifications, for Fire Instructor Level III. Instructors wanting to meet NFPA 1041 for Fire Service Instructor Level III must meet the requirements for Fire Service Instructor II. sec.425.307. Minimum Standards For Master Fire Education Specialist Certification. (a) In order to be certified as a Master Fire Education Specialist the individual must: (1) hold as a prerequisite an Advanced Fire Education Specialist certification; and (2) acquire one of the following combinations of college education and the listed years of experience in a paid fire department, or department of a state agency, education institution, or political subdivision devoted full time to fire service training and related responsibilities (A) An associate degree or 60 college semester hours either of which must include 12 college semester hours in fire science, and 12 years of experience; or (B) An associate degree or 60 college semester hours, either of which must include at least 15 college semester hours in fire science subjects, and at least nine years of experience; or (C) An associate degree in fire science and at least six years of experience; or (D) A baccalaureate degree or 120 college semester hours, either of which must include at least 15 college semester hours in fire science subjects, and at least six years of experience; or (E) A masters degree, which must include at least 15 college semester hours in fire science hours, and at least four years of experience. (b) The Master Fire Education Specialist Certification meets requirements of NFPA 1041, Standard for Fire Service Instructor Professional Qualifications, for Fire Instructor Level IV only if Fire Administration I and Fire Administration II (college level) are completed. Instructors wanting to meet NFPA 1041 for Fire Service Instructor Level IV must meet the requirements for Fire Service Instructor III. sec.425.401. Minimum Standards For Associate Instructor Certification. (a) The Associate Instructor certificate is designed for individuals that are not full-time, fully paid fire protection personnel, employees of a department of a state agency, an educational institution or political subdivision devoting full time to fire service training or related responsibilities and who do not qualify for instructor certification in the other instructor categories. (b) In order to be certified as an Associate Instructor the individual must: (1) have completed a commission-approved "Methods of Teaching" course consisting of at least 40 class hours or three college semester hours; and (2) submit an instructor application approved by a fire chief, training officer, or coordinator; and (3) submit an instructor application, with documentation to verify the aforementioned items to the commission for processing. (c) Approved areas of instruction shall include: (1) Individuals shall provide acceptable proof of training at the time of application in each basic and advanced subject area they desire to provide instruction in. Individuals must have completed the course they are seeking to instruct or have completed comparable training in the same subject area. Proof of training in a subject need be submitted only once. The following items are acceptable for proof of training: (A) a copy of a commission-approved certificate of completion bearing the course approval number and course identification number; (B) semester courses of equivalent training identified on college transcripts; or (C) complete written documentation of equivalent training for staff review. (2) Individuals desiring to instruct in basic and advanced subjects they have not previously been approved for must meet the requirements of sec.425.301(c)(1) for acceptable proof of training. Proof of training shall be attached and submitted with a Course/School Prior Approval Form (CFP-T) when making application for course approval by the commission. 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 June 5, 1993. TRD-9323876 Jack Woods General Counsel Texas Commission on Fire Protection Earliest posssible date of adoption: July 12, 1993 For further information, please call: (512) 873-1700 Subchapter C. Fire Education Specialist Certification 37 TAC sec.sec.425.301, 425.303, 425.305, 425.307 The new section is proposed under the Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and the Texas Government Code, sec.419.028(b)(3), which provides the commission the authority to certify persons as qualified fire protection personnel instructors under conditions the commission prescribes. sec.425.301. Minimum Standards For Basic Fire Education Specialist Certification. (a) Fire Education Specialist certificates will be issued by the commission when an individual completes the training and teaching requirements designated in the various certification levels. Complete course descriptions are on file in the commission office for all instructor courses listed in this section. (b) In order to be certified as a Basic Fire Education Specialist the individual must: (1) be a full-time, full paid employee of a department of a state agency, an education institution or political subdivision-providing fire protection training and have a minimum of three years full time experience in one or more or any combination of the following: (A) a paid fire department; or (B) a department of a state agency, an education institution or political subdivision-fire protection training; (2) be a high school graduate or possess a GED certificate; (3) be approved by his/her employer, department head or coordinator; (4) have completed "Instructional Techniques for Company Officers" or 15 class hours of teacher instructional training courses; and (5) submit an instructor application, with documentation to verify the aforementioned requirements, to the commission for processing. (c) Approved areas of instruction shall include the following. (1) Individuals shall provide acceptable proof of training at the time of application in each subject area they desire to provide instruction in. Individuals must have completed the course they are seeking to instruct or have completed comparable training in the same subject area. Proof of training in a subject need be submitted only once. The following items are acceptable for proof of training: (A) a copy of a commission approved certificate of completion bearing the course approval number and course identification number; (B) College semester courses of equivalent training identified on college transcripts; or (C) complete written documentation of equivalent training for staff review. (2) Individuals desiring to instruct in basic and advanced subjects, they have not previously been approved for, must meet the requirements of sec.425.301(c)(1) for acceptable proof of training. Proof of training shall be attached to and submitted with a Course/School Prior Approval Form (CFP-T) when making application for course approval by the commission. (d) The Basic Fire Education Specialist Certification meets requirements of NFPA 1041, Standard for Fire Service Instructor Professional Qualifications, for Fire Instructor Level I. sec.425.303. Minimum Standards For Intermediate Fire Education Specialist Certification. (a) In order to be certified as an Intermediate Fire Education Specialist, the individual must: (1) have completed all the requirements listed under sec.425.301(b) of this title (relating to Minimum Standards for Basic Fire Education Specialist Certification) except for paragraph (5) (Note: Basic Fire Education Specialist certification is not a prerequisite for Intermediate Fire Education Specialist Certification.); and (2) have completed a commission approved "Methods of Teaching" course consisting of at least 40 class hours or three college semester hours, or the National Fire Academy course, "Instructional Methodology." (b) The Intermediate Fire Education Specialist Certification meets requirements of NFPA 1041, Standard for Fire Service Instructor Professional Qualifications, for Fire Instructor Level I and Fire Instructor Level II. Instructors wanting to meet NFPA 1041 for Fire Service Instructor Level II must meet the requirements for Fire Service Instructor I. sec.425.305. Minimum Standards For Advanced Fire Education Specialist Certification. (a) In order to be certified as an Advanced Fire Education Specialist must: (1) hold as a prerequisite an Intermediate Fire Education Specialist certificate; (2) be a full-time, full paid employee of a department of a state agency, an educational institution or political subdivision-devoting full time to fire service training and related responsibilities and have a minimum of five years full-time experience in one or more or any combination of the following: (A) a paid fire department; or (B) a department of a state agency, an education institution or political subdivision-devoting full time to fire service training and related responsibilities; and (3) successfully complete the following commission approved instructor training courses: (A) a commission approved "Instructional Aids" course of at least 40 hours or three college semester hours (the National Fire Academy course, "Instructional Methodology" can be substituted for "Methods of Teaching" and "Instructional Aids"); and (B) a commission approved course in "Analysis and Course Making" consisting of at least 40 class hours or three college semester hours; and (C) a commission approved course in "Organization and Use of Instructional Materials" consisting of at least 40 hours or three college semester hours. (The National Fire Academy course "Course Development" can be substituted for "Analysis and Course Making" and "Organization and Use of Instructional Material.") (b) The Advanced Fire Education Specialist Certification meets requirements of NFPA 1041, Standard for Fire Service Instructor Professional Qualifications, for Fire Instructor Level III. Instructors wanting to meet NFPA 1041 for Fire Service Instructor Level III must meet the requirements for Fire Service Instructor II. sec.425.307. Minimum Standards For Master Fire Education Specialist Certification. (a) In order to be certified as a Master Fire Education Specialist the individual must: (1) hold as a prerequisite an Advanced Fire Education Specialist certification; and (2) acquire one of the following combinations of college education and the listed years of experience in a paid fire department, or department of a state agency, education institution, or political subdivision-devoting full time to fire service training and related responsibilities: (A) an associate degree or 60 college semester hours either of which must include 12 college semester hours in fire science and 12 years of experience; or (B) an associate degree or 60 college semester hours, either of which must include at least 15 college semester hours in fire science subjects and at least nine years of experience; or (C) an Associate Degree in Fire Science and at least six years of experience; or (D) a baccalaureate degree or 120 college semester hours, either of which must include at least 15 college semester hours in fire science subjects and at least six years of experience; or (E) a masters degree which must include at least 15 college semester hours in fire science hours and at least four years of experience. (b) The Master Fire Education Specialist Certification meets requirements of NFPA 1041, Standard for Fire Service Instructor Professional Qualifications, for Fire Instructor Level IV only if Fire Administration I and Fire Administration II (college level) are completed. Instructors wanting to meet NFPA 1041 for Fire Service Instructor Level IV must meet the requirements for Fire Service Instructor III. 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 June 7, 1993. TRD-9323874 Jack Woods General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: July 12, 1993 For further information, please call: (512) 873-1700 Subchapter D. Associate Instructor Certification 37 TAC sec.425.401 The new section is proposed under the Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and the Texas Government Code, sec.419.028(b)(3), which provides the commission the authority to certify persons as qualified fire protection personnel instructors under conditions the commission prescribes. sec.5.401. Minimum Standards For Associate Instructor Certification. (a) The Associate Instructor certificate is designed for individuals that are not full-time, full paid fire protection personnel, employees of a department of a state agency, an educational institution or political subdivision-devoting full time to fire service training or related responsibilities and who do not qualify for instructor certification in the other instructor categories. (b) In order to be certified as an Associate Instructor the individual must: (1) have completed a commission approved "Methods of Teaching" course consisting of at least 40 class hours or three college semester hours; and (2) submit an instructor application approved by a fire chief, training officer or coordinator; and (3) submit an instructor application, with documentation to verify the aforementioned items to the commission for processing. (c) Approved areas of instruction shall include the following. (1) Individuals shall provide acceptable proof of training at the time of application in each basic and advanced subject area they desire to provide instruction in. Individuals must have completed the course they are seeking to instruct or have completed comparable training in the same subject area. Proof of training in a subject need be submitted only once. The following items are acceptable for proof of training: (A) a copy of a commission approved certificate of completion bearing the course approval number and course identification number; (B) College semester courses of equivalent training identified on college transcripts; or (C) complete written documentation of equivalent training for staff review. (2) Individuals desiring to instruct in basic and advanced subjects they have not previously been approved for, must meet the requirements of sec.425.301(c)(1) for acceptable proof of training. Proof of training shall be attached and submitted with a Course/School Prior Approval Form (CFP-T) when making application for course approval by the commission. 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 June 7, 1993. TRD-9323875 Jack Woods General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: July 12, 1993 For further information, please call: (512) 873-1700 Chapter 427. Training Facilities Subchapter A. Minimum Standards for Structure Recruit Training 37 TAC sec.sec.427.1, 427.3, 427.5, 427.7, 427.9, 427.11, 427.13 (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 Commission on Fire Protection or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas Commission on Fire Protection proposes the repeal of sec.sec.427.1, 427.3, 427.5, 427.7, 427.9, 427.11, and 427.13, concerning structure recruit training facilities for paid fire protection personnel and sec.sec.427.201, 427. 203, 425.205, 427.207, 427.209, 427.211, 427.213, 427.215, and 427.217, concerning aircraft fire protection personnel training facilities. The repealed sections are replaced by new sections concerning the same subject matter. The new sections consolidate provisions relating to training facilities for structure fire protection personnel and aircraft rescue fire protection personnel into one chapter. Mr. Alton Bostick, standards and licensing division 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. Bostick 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 the promotion of quality control of instruction of fire protection personnel in certified training facilities, and a more efficient organization of facility requirements. 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. Comments on the proposal may be submitted to Jim Fiero, Chairman, Fire Protection Personnel Advisory Committee, P.O. Box 2286, Austin, Texas 78768- 2286. The repeals are proposed under the Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and sec.419.028(b)(1), which provides the commission the authority to certify facilities operated for training fire protection personnel. sec.427.1. Minimum Standards For Recruit Training Facilities For Fire Protection Personnel. sec.427.3. Apparatus-Structure Training Facility. sec.427.5. Equipment-Structure Training Facility. sec.427.7. Reference Material -Structure Training Facility. sec.427.9. Testing and Records-Structure Training Facility. sec.427.11. Staff-Structure Training Facility. sec.427.13. General Information -Structure Training Facility. sec.427.201. Minimum Standards For Recruit For Aircraft Crash and Rescue Fire Protection Personnel Training Facilities. sec.427.203. Apparatus-Aircraft Crash and Rescue Training Facility. sec.427.205. Equipment-Aircraft Crash and Rescue Training Facility. sec.427.207. Reference Material -Aircraft Crash and Rescue Training Facility. sec.427.209. Training Records -Aircraft Crash and Rescue Training Facility. sec.427.211. Testing Procedures -Aircraft Crash and Rescue Training Facilities. sec.427.213. Staff Requirements -Aircraft Crash and Rescue Training Facilities. sec.427.215. Commission Action -Aircraft Crash and Rescue Training Facilities. sec.427.217. Revocation and Suspension Procedures-Aircraft Crash and Rescue Training Facilities. 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 June 5, 1993. TRD-9323878 Jack Woods General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: July 12, 1993 For further information, please call: (512) 873-1700 Chapter 427. Certified Training Facilities 37 TAC sec.sec.427.1, 427.3, 427.5, 427.7, 427.9, 427.11, 427.13, 427.15, 427.17, 427.19, 427.21 The Texas Commission on Fire Protection proposes new sec. s427.1, 427.3, 427.5, 427.7, 427.9, 427.11, 427.13, 427.15, 427.17, 427.19, and 427.21, concerning certified training facilities for paid fire protection personnel. The new sections replace existing sections concerning the same subject matter. The new sections consolidate provisions relating to training facilities for structure fire protection personnel and aircraft rescue fire protection personnel into one chapter. In addition, the new sections are also applicable to training facilities for marine fire fighters, fire inspectors, and fire and arson investigators. Mr. Alton Bostick, standards and licensing division director, has determined that for the first five years the rules are in effect there will be fiscal implications for state governments as a result of enforcing or administering the new rules. There will be no effect on state government as a result of administering or enforcing these rules. The rules which implement guidelines for training facilities for fire inspectors, arson investigators, and marine fire fighters will have no effect on local governments, as course approvals have already ensured that the guidelines were met. There will be a small increase in personnel costs for training facilities which utilize guest instructors, because the new rules require that a certified instructor be present during instruction by a guest instructor. However, the effect of this requirement may be offset by more flexible requirements for certification as an Associate Instructor. Mr. Bostick also has determined that for each year of the first five years that the rules are in effect the public benefit anticipated as a result of enforcing the rules as proposed will be the promotion of quality control of instruction of fire protection personnel in certified training facilities, and a more efficient organization of facility requirements. The anticipated economic cost to businesses or persons who are required to comply with the sections as proposed will be the same as those estimated for local governments. Comments on the proposal may be submitted to Jim Fiero, Chairman, Fire Protection Personnel Advisory Committee, P.O. Box 2286, Austin, Texas 78768- 2286. The amendments are proposed under the Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and sec.419.028(b)(1), which provides the commission the authority to certify facilities operated for training fire protection personnel. sec.427.1. Minimum Standards For Certified Training Facilities For Fire Protection Personnel. (a) A training facility that provides basic instruction, for certification, to fire protection personnel in any of the following disciplines must be certified by the Texas Commission on Fire Protection: (1) structural fire protection personnel; (2) aircraft crash and rescue fire protection personnel; (3) marine fire protection personnel; (4) fire inspector; (5) fire and arson investigator; and (6) fire protection personnel instructor. (b) A certified training facility may be approved to instruct in any one, or all of the basic fire protection personnel curriculums. Minimum requirements for each curriculum must be met to receive certification. (c) Minimum requirements for certification as a certified training facility shall include facilities, apparatus, equipment, reference materials, and records to support a quality education and training program. The resources must provide for classroom instruction, demonstrations, and practical exercises for the trainees to develop the knowledge and skills required for basic fire protection personnel certification. (d) The facilities and training shall be performance oriented, when required. Practical performance training with maximum participation by trainees shall be an integral part of the training program. The evaluation process for each phase of training will emphasize, as required, performance testing to determine if the trainee has acquired the knowledge and skills to achieve the required level of competency as required by the respective curriculum. (e) It must be clearly understood that the minimum standard for training facilities are applicable only as the title implies and does not address the additional training facility resources which are required for the continuing in- service training essential to the development and maintenance of a well- coordinated and effective fire service organization. (f) An organization, installation, or facility must submit a written application for certification as a certified training facility to the commission. Such application will include descriptions and addresses of physical facilities together with inventory of apparatus, equipment, and reference material to be utilized in conducting the basic curriculum as specified by the commission. It is not required that the equipment be owned by, permanently assigned to, nor kept at a training facility, but must be readily available for instructional purposes. A training facility must submit a letter of commitment authorizing the use of resources not controlled by the training facility from provider of said resources. Photographs of resources, annotated to reflect their identity must be included with the application. (g) All training must be submitted to the commission for approval prior to the commencement of the training. A "Course/School Prior Approval Submission Form", CFP-T, must be submitted to the commission at least 20 days prior to the proposed starting date of the training. (h) A certified training facility must submit a written request to the commission to be issued, at no charge, one Commission Certification Curriculum Manual which is to be utilized by the certified training facility instructors. The certified training facility instructors are responsible for ensuring that all subjects are taught as required by the respective curriculum. Additional copies of the Commission Certification Curriculum Manual may be purchased from the commission. Certified training facilities that renew their certification will receive appropriate updates, at no charge, to the Commission Certification Curriculum Manual. sec.427.3. Facilities. The following minimum resources, applicable to the curricula, are required for certification as a certified training facility. These facilities may be combined or separated utilizing one or more structures. In either event the facilities must be available and used by the instructor and trainees. (1) A training tower equivalent to two or more stories in height. The term "training tower' as used in these standards is a structure suitable for training in the practical application of ladder evolutions, rescue drills, hose advancement, and rope work. (It is important to note these key requirements may not be compatible with the requirements for key rate credit. Cities planning to build or modify a training tower should carefully check the criteria for key rate credit prior to expending funds for such a facility.) (2) A facility for classroom instruction shall have seating capacity for anticipated trainees conducive for an effective learning environment. (3) Area for practical application of principles and procedures of fire fighting, hose loading, pumper operation, to include friction loss, nozzle reaction, fire stream patterns, and GPM discharge utilizing various layouts for hand lines and master stream appliances. (4) An enclosed area or room for use in practical training with self-contained breathing apparatus. This may be a smoke and fire room or enclosed area which can be charged with smoke-producing devices to provide a realistic training environment. (5) A building suitable for live fire training and meeting the requirements of the Basic Fire Suppression Curriculum shall be available for use by the instructors to teach live fire training. National Fire Protection Association 1403, Standard on Live Fire Training Evolutions in Structures shall be used as a guide when conducting live fire training. (6) Facilities to conduct live fire training as required by the applicable chapter of the Commission Certification Curriculum Manual adopted in Chapter 443 of this Title. sec.427.7. Apparatus. (a) Certified Training Facility-Approved for Basic Structural Fire Protection Personnel. (1) A pumper apparatus fully equipped as required by the Basic Fire Suppression Curriculum shall be readily available for use by the instructors for instructional purposes. (2) Ladders or a ladder truck as required by the Basic Fire Suppression Curriculum shall be readily available for use by the instructors for instructional purposes. (b) Certified Training Facility-Approved for Basic Aircraft Rescue and Fire Protection Personnel. Fire apparatus that is equipped to perform aircraft crash and rescue operations as required by the Basic Aircraft Rescue and Fire Protection Curriculum must be readily available for use by the instructors for instructional purposes. sec.427.9. Protective Clothing.
                                                                                                                                                                  Each and every set of protective clothing, including proximity clothing, that will be used during the course of instruction for a commission approved basic fire protection personnel curriculum shall comply with sec.435.1(b) of this title (pertaining to Protective Clothing). sec.427.11. Equipment. The following minimum equipment, that is applicable to the curriculum(s) the training facility is certified to teach, are required for certification as a certified training facility. The equipment must be available for use by the certified training facility. (1) self-contained breathing apparatus in sufficient numbers to enable each trainee to wear the equipment for at least the life of one breathing air tank during the training (Note: Must comply with sec.435.3(2) of this title relating to self-contained breathing apparatus.) (2) standard class room equipment to include chalkboard, speaker rostrum, supportive instructional aids available, including audio/visual projection equipment. The use of cutaways, models, flip charts, and other visual aids are recommended to enhance effectiveness of the instruction (Note: The instructor needs to ensure all necessary equipment is available for trainees to use regarding the basic performance skills as identified in appropriate curriculum and to comply with sec.427.9 of this title (relating to Testing and Records)); and (3) other equipment and tools required by the applicable curriculum. sec.427.13. Reference Material.
                                                                                                                                                                    A reference library is required. The library must contain the publications required to conduct research and develop lesson plans covering the material required in the applicable basic curriculum. sec.427.15. Records. (a) Training records shall be maintained by the training facility which reflect: (1) who was trained, subject, instructor, and date of instruction. (Note- individual records are required rather than class records.); and (2) individual trainee test scores to include performance testing. (b) All training records must be maintained for a minimum of three years. sec.427.17. Testing Procedures. (a) A system for evaluating the effectiveness of the instruction, and the comprehension of the trainee is required. (b) If performance skills are part of the applicable curriculum, performance testing shall be done and records kept to indicate that each trainee has demonstrated an ability to consistently perform, individually and as a member of a team, all tasks and operations associated with the training. Such tests shall also demonstrate each trainee's ability to perform in a safe manner and at a level of competency which contributes to the successful achievement of the purpose for which the task or operation is being performed. (c) Performance testing should be utilized to the maximum extent practical. The performance skills contained in the applicable basic curriculum shall be utilized to satisfy performance skills requirements. Each trainee shall be prepared to demonstrate any performance skill before a commission representative as may be required in Chapter 439 of this title (relating to Examinations for Certification). (d) Written tests shall be designed to encompass the contents of the subjects being taught and phrased in a manner which can be readily understood by a trainee whose comprehension is at a level consistent with the academic level of the material being presented. (1) Periodic written tests serve the dual purpose of permitting the instructor to evaluate the effectiveness of the instruction and the comprehension of the trainees. The instructor must determine that each trainee understands and comprehends the subject matter being presented. Trainees must maintain a grade average of not less than 70% for all periodic testing administered during the course. (A) A minimum of eight periodic written tests shall be administered during the course for certification of Structural Fire Protection Personnel, covering the subjects listed in the Basic Fire Suppression Curriculum. (B) A minimum of four periodic written tests shall be administered during the course for certification of Aircraft Crash and Rescue Fire Protection Personnel, Marine Fire Protection Personnel, Fire Inspectors, and Fire and Arson Investigator, covering the subjects listed in the applicable curriculum. (2) Comprehensive Written Tests shall be administered utilizing one of the following options: (A) A midterm and a final comprehensive written test shall be administered, if this option is utilized. The first or midterm comprehensive test shall be given no later than midway through the curriculum and shall relate to subjects presented from the beginning of the training until the date of test. The final comprehensive test shall be given at the conclusion of the training curriculum and shall relate to subject matter presented from the beginning of the training until the date of the test. Each trainee must maintain a grade average of not less than 70% for the two comprehensive tests. A trainee may be allowed one retest at the discretion of the training facility. (B) A final comprehensive test shall be administered at the conclusion of the course and shall cover all subjects listed in the basic firefighter curriculum. Each trainee must score a grade of not less than 70% on the final examination. A trainee may be allowed one retest, at the discretion of the training facility. (3) The tests in sec.427.17(d)(1) and (2) shall be in addition to the commission examination required in Chapter 439. (e) A master copy of written tests will be maintained for review by commission representatives. The certified training facility shall maintain copies of all tests for a minimum of three years. sec.427.19. Staff. (a) A training officer, as a minimum, must possess an Intermediate Fire Service Instructor Certification (Refer to sec.425.3 of this title, pertaining to Intermediate Fire Service Instructor). A newly appointed training officer must, as a minimum, possess an Intermediate Fire Service Instructor Certification within one year from date of appointment. (b) A coordinator, as a minimum, must possess an Intermediate Fire Education Specialist Certification (Refer to sec.425.303 of this title, pertaining to Intermediate Fire Education Specialist Certification). A newly appointed coordinator must, as a minimum, possess an Intermediate Fire Education Specialist Certification within one year from date of appointment. (c) All instructors, except guest instructors, must as a minimum possess a Basic Fire Service Instructor Certification, as provided in sec.425.1 of this title, a Basic Volunteer Fire Fighter Instructor Certification as provided in sec.475.1 of this title, a Basic Fire Education Specialist Certification as provided in sec.425.301 of this title, or an Associate Instructor Certification as provided in sec.425.401 of this title. The instructor or instructors that will be providing instruction must be approved by the commission to instruct in the applicable curriculum or subjects. (d) The lead instructor, as a minimum, shall possess an Intermediate Fire Service Instructor Certification (Refer to sec.425.3 of this title, pertaining to Intermediate Fire Service Instructor) or an Intermediate Fire Education Specialist Certification (Refer to sec.425.303 of this title pertaining to Intermediate Fire Education Specialist Certification). (e) Guest instructors, including fire protection personnel utilized on a limited basis, are not required to be certified as instructors. A guest instructor is defined as an individual with special knowledge, skill, and expertise in a specific subject area who has the ability to enhance the effectiveness of the training. Guest instructors can teach under the endorsement of and in the presence of the instructor responsible for the subject being taught. (f) The commission encourages all certified training facility staff to upgrade their instructor certification by completing the appropriate instructor training courses and other education requirements set forth for higher levels of instructor certifications. sec.427.21. General Information. (a) All Texas certified training facilities shall meet these minimum requirements. No training credit will be recognized from a Texas training facility that has not been certified by the commission. The commission shall take action on an application for certification of a training facility within 90 days from receipt of same. (b) Certified training facilities are subject to inspection by the commission at any time during regular business hours. (c) A certified training facility is encouraged to upgrade and improve the physical facilities, equipment, and reference material on a continuing basis. (d) In order to retain the certification as a certified training facility, schools desiring to make substantial changes in the facility or other conditions under which the school was approved shall coordinate such plans with the commission. (e) The commission shall be notified, in writing, within 10 days of any change in the certified training facility training officer or coordinator. (f) The commission may revoke the certification of a training facility when, in the judgment of the commission, the training facility: (1) is inadequate and fails to provide the quality of training for which the facility was approved; (2) fails to comply with commission rules and/or these minimum standards; or (3) fails to submit required reports in a timely manner or submits false reports to the commission. 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 June 5, 1993. TRD-9323880 Jack Woods General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: July 12, 1993 For further information, please call: (512) 873-1700 Subchapter B. Minimum Standards for Aircraft Fire Protection Personnel Training Facilities Training Facility 37 TAC sec.sec.427.201, 427.203, 427.205 427.207, 427.209, 427.211, 427.13 The repeals are proposed under the Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and the Texas Government Code, sec.419.028(b)(1), which provides the commission the authority to certify facilities operated for training fire protection personnel. sec.427.201. Minimum Standards For Recruit For Aircraft Crash and Rescue Fire Protection Personnel Training Facilities. sec.427.203. Apparatus-Aircraft Crash and Rescue Training Facility. sec.427.205. Equipment-Aircraft Crash and Rescue Training Facility. sec.427.207. Reference Material -Aircraft Crash and Rescue Training Facility. sec.427.209. Training Records -Aircraft Crash and Rescue Training Facility. sec.427.211. Testing Procedures -Aircraft Crash and Rescue Training Facilities. sec.427.213. Staff Requirements -Aircraft Crash and Rescue Training Facilities. sec.427.215. Commission Action -Aircraft Crash and Rescue Training Facilities. sec.427.217. Revocation and Suspension Procedures-Aircraft Crash and Rescue Training Facilities. 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 June 7, 1993. TRD-9323877 Jack Woods General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: July 12, 1993 For further information, please call: (512) 873-1700 Chapter 435. Fire Fighter Safety 37 TAC sec.435.1 The Texas Commission on Fire Protection proposes an amendment to sec.435.1, concerning protective clothing for fire protection personnel. The amendment adds language concerning requirements for proximity fire fighting clothing used by aircraft rescue fire protection personnel to address a new National Fire Protection Association standard for proximity clothing. The proposed amendment identifies the date the standard became effective. Alton Bostick, standards and licensing division director, has determined that there are no fiscal implications for state and local government as a result of enforcing or administering the amended rule. Mr. Bostick also has determined that for each year of the first five years that the rule as proposed is in effect the public benefit anticipated as a result of enforcing the section as proposed will be to provide clarification of the requirements for proximity clothing used by aircraft rescue fire protection personnel. There will be no effect on small businesses. There are no anticipated additional costs for persons who are required to comply with the rule as proposed due to the fact that the protective clothing is required by statute to comply with the applicable NFPA standard in effect at the time the equipment is purchased or contracted. Comments on the proposal may be submitted to Jim Fiero, Chairman, Fire Protection Personnel Advisory Committee, P.O. Box 2286, Austin, Texas 78768- 2286. The amendment is proposed under the Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties and the Government Code, sec.419.042, which provides the Commission with authority to adopt standards for protective clothing and SCBA. sec.435.1. Protective Clothing.
                                                                                                                                                                      The employing entity shall: (1) purchase, provide, and maintain a complete set of protective clothing for all fire protection personnel that are assigned to fire suppression duties or provide an adequate clothing allowance and require the fire protection personnel to purchase and maintain a complete set of protective clothing. A complete set of protective clothing shall consist of those items listed in the Texas Government Code, sec.419.021, which states, "Protective clothing" means garments, including turnout coats, bunker coats, boots, gloves, trousers, helmets, and protective hoods, worn by fire protection personnel in the course of performing fire-fighting operations; (2) ensure that all protective clothing which are used by fire protection personnel assigned to fire suppression duties, comply with the minimum standards of the National Fire Protection Association. (A) The National Fire Protection Association standard applicable to protective clothing is the standard in effect at the time the entity contracts for new, rebuilt, or used protective clothing. (B) An entity may continue to use protective clothing in use or contracted for before a change in the National Fire Protection Association standard, unless the commission determines that the protective clothing constitutes an undue risk to the wearer, in which case the commission shall order that the use be discontinued and shall set an appropriate date for compliance with the revised standard. (C) Fire fighter boots purchased or contracted for prior to May 16, 1988, are not required to meet the minimum standards for protective clothing. (D) Protective hoods purchased or contracted for prior to August 16, 1991, are not required to meet the minimum standards for protective clothing. (E) Protective clothing for proximity fire fighting purchased or contracted for prior to August 14, 1992, are not required to meet the standards for protective clothing. (3) maintain and provide upon request by the Commission, a departmental standard operating procedure regarding the use of protective clothing, during fire suppression operations. 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 June 5, 1993. TRD-9323881 Jack Woods General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: July 12, 1993 For further information, please call: (512) 873-1700 Chapter 437. Fees 37 TAC sec.437.3, 437.5, 437.9, 437.13 The Texas Commission on Fire Protection proposes amendments to sec.sec.437.3, 437.5, and 437.9, and new sec.437.13, concerning certification and renewal fees, curriculum manual fees, and examination fees. The amendments to sec.437.3 and sec.437.5 require approved training facilities to pay an annual certification fee of $20. The amendment to sec.437.9 establishes an annual fee of $12 to receive current revisions to the curriculum manual. New sec.437.13 establishes a $15 fee for the basic certification written examination. Alton Bostick, standards and licensing division director, has determined that there will be fiscal implications to state and local governments as a result of enforcing or administering the rule. For each year of the first five-year period that the rules will be in effect it is anticipated that the commission will receive an increase in revenue of approximately $2,000 in certification and renewal fees for training facilities, $720 in curriculum manual subscription fees, and $16,890 in testing fees. Local governments that maintain fire protection personnel training facilities regulated by the commission will have an additional annual cost of $20 for facility certification and $15 for each examinee for basic certification tests. Mr. Bostick also has determined that for each year of the first five years that the rules as proposed are in effect the public benefit anticipated as a result of enforcing the rules as proposed will be to make current curriculum information available to the fire service, to provide funds for inspection of training facilities to insure their quality, and to allocate the cost of examinations to those individuals and entities which use those services. The cost for small business will be the same as for local governments. The cost of compliance with these rules for persons who operate training facilities for fire protection personnel will be the same as the cost for local governments. Comments on the proposal may be submitted to Jim Fiero, Chairman, Fire Protection Personnel Advisory Committee, P.O. Box 2286, Austin, Texas 78768- 2286. The amendments and new section are proposed under the Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and the Texas Government Code, sec.419.026, which authorizes the commission to establish fees relating to certification and basic certification tests. sec.437.3. Fees-Certification. (a)-(i) (No change.) (j) A facility that provides training for any certification in subsection (e) of this section must be certified by the commission. A training facility that is certified by the commission to instruct in one or more disciplines shall be charged only one certification fee. sec.437.5. Fees-Renewal. (a) The annual renewal fee shall be $20.00 and shall be assessed for each certified employee of an entity and certified training facility
                                                                                                                                                                        . If an individual holds more than one certificate, the Commission may collect only one $20 renewal fee which will renew all certificates held by the individual. (b)-(l) (No change.) sec.437.9. Fees-Commission Certification Curriculum Manual. (a) A fee of $30 will be charged for each set of the Commission Certification Curriculum Manual. A $12 annual subscription fee will be charged to receive revisions. (b) (No change.) sec.437.13. Fees-Basic Certification Examination. (a) A fee of $15 shall be charged for each basic certification written examination. (b) Basic certification examination fees will not be combined with any other fees, such as renewal fees, fees for commission manuals, and copying fees. 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 June 5, 1993. TRD-9323882 Jack Woods General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: July 12, 1993 For further information, please call: (512) 873-1700 Chapter 439. Examinations For Certification 37 TAC sec.439.7 The Texas Commission on Fire Protection proposes an amendment to sec.439.7, concerning procedures for examinations for certification. The amendment provides guidelines for the conduct of examinations of classes with less than eight examinees, outline equipment required to be furnished by the examinee for a performance examination, and provides for the issuance of a certificate of completion of the basic certification examination. Alton Bostick, standards and licensing division director has determined that there will be fiscal implications for state and local governments as a result to enforcing or administering the rule as amended. The amendment will result in a small increase in revenue if classes smaller than eight examinees are required to pay a minimum fee of $120. However, this increase may be offset by a reduction in the number of smaller classes. The effect on local government will depend on the size of classes taking the basic certification tests. Classes of eight or more are unaffected by the rule change, whereas the smaller classes will see an increase of cost per examinee from $15 to $120 depending on the size of the class. Mr. Bostick also has determined that for each year of the first five years the rule as proposed are in effect the public benefit anticipated as a result of enforcing the section as proposed will be a more efficient allocation of costs of examination and assurance that examinees for performance testing have appropriate equipment. There will be no effect on small businesses. The possible economic cost of complying with the rule for persons and business that conduct training of fire protection personnel will be the same as that estimated for local governments. Comments on the proposal may be submitted to Jim Fiero, Chairman, Fire Protection Personnel Advisory Committee, P.O. Box 2286, Austin, Texas 78768- 2286. The amendment is adopted under the Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and the Texas Government Code, sec.419.032(b), which authorizes the commission to establish qualifications relating to basic certification tests. sec.439.7. Procedures. (a)-(c) (No change.) (d) To apply for a commission examination, the designated training officer or
                                                                                                                                                                          coordinator of the entity providing the training must complete that portion of the "Course/School Prior Approval Submission Form (CFP-T)" pertaining to commission examinations. The CFP-T form must be submitted to the commission 20 days prior to the proposed starting date of the course. The commission will set the time and place of the examination. A reasonable attempt shall be made to schedule the examination as soon as possible after the completion of the applicable course and at a place agreeable to the provider of training. (1) Commission examinations, or retakes, for less than eight examinees shall be conducted in Austin, or other place designated by the commission. The commission shall coordinate with the provider of training as to the time of the examination. (2) Commission examinations, or retakes, for less than eight examinees shall be conducted in accordance with this section, provided that entity providing the training agrees to pay an examination fee equal to amount that would be charged for eight examinees. (3) If a performance test is part of the commission examination, examinees that are required to take the commission examination in Austin, or other place designated by the commission, shall be required to furnish a complete set of protective clothing that complies with sec.435.1(2) of this title (relating to Protective Clothing). Examinees are encouraged, but not required, to provide a self-contained breathing apparatus that complies with sec.435.3(2) of this title (relating to Self-Contained Breathing Apparatus) that the examinee is familiar with and an extra full cylinder. (e) If the designated training officer or
                                                                                                                                                                            coordinator of the entity providing the training determines that the time and/or place of the examination as set by the commission is not acceptable for good cause, he may request the commission to reschedule or relocate the examination providing the request is received at least 20 days prior to the original scheduled time of the examination or the new proposed time, whichever would result in the earliest notification. The commission shall give all such request due consideration and may reschedule or relocate the examination as necessary. (f)-(m) (No change.) (n) An examinee that successfully completes the applicable curriculum and the required commission basic certification examination shall be issued a certificate of completion from the provider of training. The certificate of completion shall, as a minimum, identify the provider of training, the course ID number, the course approval number, hours of instruction, date issued (date commission basic certification examination was successfully passed), name of instructor, and the name of the person completing the course. 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 June 6, 1993. TRD-9323883 Jack Woods General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: July 12, 1993 For further information, please call: (512) 873-1700 Chapter 443. Adoptions by Reference 37 TAC sec.443.1 The Texas Commission on Fire Protection proposes an amendment to sec.443.1, concerning the adoption by reference of the Basic Fire Suppression Curriculum. The amendment adopts a revised edition of Chapter 1, Basic Fire Suppression Curriculum. Alton Bostick, standards and licensing division director, has determined that for the first five years the rule is in effect there will be no fiscal implications for state and local governments as a result of enforcing or administering the amended rule. Mr. Bostick also has determined that for each year of the first five years that the rule as proposed is in effect the public benefit anticipated as a result of enforcing the rule proposed will be the deletion of obsolete language and an elimination of any conflict with changes to the statutory definition of fire protection personnel. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the rule as proposed. Comments on the proposal may be submitted to Jim Fiero, Chairman, Fire Protection Personnel Advisory Committee, P.O. Box 2286, Austin, Texas 78768- 2286. The amendment is adopted under the Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and the Texas Government Code, sec.419.022, which provides the commission with authority to establish minimum training standards for fire protection personnel. sec.443.1. Basic Fire Suppression Curriculum. (a) The effective date of this section shall be April 1, 1992. (b) The Commission on Fire Protection adopts by reference Chapter 1, Basic Fire Suppression Curriculum, of the Commission's document titled "Commission Certification Curriculum Manual" as amended April 14
                                                                                                                                                                              [January 13], 1993. (c) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on June 6, 1993. TRD-9323884 Jack Woods General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: July 12, 1993 For further information, please call: (512) 873-1700 Chapter 473. Volunteer Fire Fighter 37 TAC sec.473.1 The Texas Commission on Fire Protection proposes an amendment to sec.473.1, concerning requirements for volunteer fire fighter certification. Subsection (b)(5) adds language to clarify that approval of a training program under this subsection includes approval of training facilities and instructors recognized by the program. In addition, subsection (d) is amended to expressly exempt out- of-state training, military training, and training through the State Firemen's and Fire Marshals' Association of Texas from the requirements for facility approval. Finally, new subsection (e) is added to provide for certification as a volunteer fire fighter of persons holding certification as paid fire protection personnel under Chapter 423 of this title. John Jandt, volunteer program director, has determined that there will be fiscal implications for state and local government as a result of enforcing or administering this rule. The effect on the commission will be a reduction in the anticipated revenue from certification of training facilities ($1,000) and volunteer fire fighter instructors ($2,500) for each year of the first five years the change is in effect. The effect on local government will be a corresponding reduction in certification fees paid to the commission. Mr. Jandt also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be the reduction in certification fees paid by volunteer fire departments; a reduction in administrative record keeping; and elimination of unnecessary duplicate training of fire fighters previously trained. There is no anticipated increase in economic costs to persons or small businesses required to comply with the rule as proposed. Comments on the proposal may be submitted to Armando O'cana, Volunteer Fire Fighter Advisory Committee, P.O. Box 2286, Austin, Texas 78768-2286. The amendment is proposed under the Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and sec.419.071(e), which provides the Texas Commission on Fire Protection with authority to establish rules for qualifications relating to education, training programs, continuing education, and testing procedures for the volunteer certification program. sec.473.1. Minimum Standards for Basic Volunteer Fire Fighter. (a) (No change.) (b) In order to be certified under this chapter, a basic volunteer fire fighter must complete a commission approved basic volunteer fire fighter curriculum. An approved basic volunteer fire fighter curriculum shall consist of one of the following: (1)-(4) (No change.) (5) Completion of a commission-approved
                                                                                                                                                                                training program that meets or exceeds the standards set for an approved basic volunteer fire fighter curriculum.
                                                                                                                                                                                  [and] Approval of a training program under this subsection constitutes approval of training facilities and instructors recognized by the program. Upon successful completion of the training program, the applicant must
                                                                                                                                                                                    successfully pass the commission examination as specified in Chapter 479 of this title (relating to examinations for volunteer fire fighter certification). (c) (No change.) (d) The commission-approved basic volunteer fire fighter curriculum must be taught through a training facility that has been certified by the commission as provided in Chapter 477, of this title (relating to Volunteer Fire Fighter Training Facilities) or Chapter 427, subchapter A, of this title (relating to Structure Recruit Training Facilities), except as provided in sec.471.7(d) of this title (relating to Minimum Standards for Participation) or subsection (b)(2)-(5) of this section. (e) A person who holds any level of Structure Fire Protection Personnel Certification issued by this commission as provided for in Chapter 423 subsection A, of this title (relating to Minimum Standards for Structure Fire Protection Personnel Certification) may be certified as a Basic Volunteer Fire Fighter. If the certificate has been inactive for more than one year, the persons must take the commission examination as provided for in sec.479.1 of this title (relating to Requirements -General. A person who has completed a Structure Fire Protection Personnel Certification Recruit School prior to January 1, 1993, and has not been certified as provided for in Chapter 423, subchapter A, may be certified as a Basic Volunteer Fire Fighter upon completion of the two additional modules as provided for in sec.473.3 of this title (relating to Adoption by Reference) and successfully completion of the examination provided for in Chapter 479 of this title (relating to Examinations for Volunteer Fire Fighter Certification). 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 June 6, 1993. TRD-9323885 Jack Woods General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: July 12, 1993 For further information, please call: (512) 873-1700 Chapter 475. Volunteer Fire Fighter Instructor and Instructor Training 37 TAC sec.475.1 The Texas Commission on Fire Protection proposes an amendment to sec.475.1, concerning minimum standards for basic volunteer fire fighter instructor certification. The amendment permits persons holding a Level II Instructor certification from the State Firemen's and Fire Marshal's Association of Texas on or before September 1, 1993, to apply for a commission basic instructor certificate, moving the deadline from December 31, 1992. John Jandt, volunteer program director, has determined that for the first five- year period the rule is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the rule. Mr. Jandt also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be an increase in the number of persons qualified to instruct volunteer fire fighters. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the rule as proposed. Comments on the proposal may be submitted to Armando O'cana, Volunteer Fire Fighter Advisory Committee, P.O. Box 2286, Austin, Texas 78768-2286. The amendment is proposed under the Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and sec.419.071(e), which provides the Texas Commission on Fire Protection with authority to establish rules for qualifications relating to education, training programs, continuing education, and testing procedures for the volunteer certification program. sec.475.1. Minimum Standards For Basic Volunteer Fire Fighter Instructor Certification. (a)-(b) (No change.) (c) Prior to September 1, 1993, an individual may be certified as a basic volunteer fire fighter instructor if he or she possesses as a minimum a State Firemen's and Fire Marshals' Association of Texas Intermediate Fire Fighter certificate and a Level II Instructor certificate on or before September 1, 1993
                                                                                                                                                                                      [December 31, 1992], and provides documentation of completion of all of the hours of each competency as outlined in the Basic Volunteer Structure Fire Fighter Curriculum Manual for which the instructor desires to instruct. 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 June 5, 1993. TRD-9323886 Jack Woods General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: July 12, 1993 For further information, please call: (512) 873-1700 Chapter 489. Volunteer Fire Department Inspections 37 TAC sec.489.3 The Texas Commission on Fire Protection proposes an amendment to sec.489.3, concerning volunteer fire department inspection reports. The amendment removes all reference to mandatory language to underline the voluntary nature of inspections of volunteer fire departments. Although volunteer fire departments will be encouraged to take corrective action, the commission has no jurisdiction to compel compliance. John Jandt, volunteer program director, has determined that for the first five- year period the rule is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the rule. Mr. Jandt also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be an increase in the number of volunteer fire departments that request voluntary inspections. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the rule as proposed. Comments on the proposal may be submitted to Armando O'cana, Volunteer Fire Fighter Advisory Committee, P.O. Box 2286, Austin, Texas 78768-2286. The amendment is proposed under the Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and sec.419.071(e), which provides the Texas Commission on Fire Protection with authority to establish rules for qualifications relating to education, training programs, continuing education, and testing procedures for the volunteer certification program. sec.489.3. Report of Inspection. The commission inspector shall furnish a report to the volunteer fire department indicating areas of compliance and non- compliance. The volunteer fire department may
                                                                                                                                                                                        [shall] submit a schedule of corrective action to the commission [within 30 days to address the areas of non-compliance. The schedule of corrective action shall not exceed one-year from the date of the report indicating non-compliance]. The participating volunteer fire department may request a follow-up inspection to determine compliance. 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 June 6, 1993. TRD-9323887 Jack Woods General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: July 12, 1993 For further information, please call: (512) 873-1700 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 10. Family Self-Support Services Child Care Management Services Statewide Implementation 40 TAC sec.10.3433 The Texas Department of Human Services (DHS) proposes an amendment to sec.10.3433, concerning cost reimbursement in child care management services (CCMS) contracts. The purpose of the amendment is to allow a negotiated fee to be used in the CCMS cost reimbursement budget. Burton F. Raiford, commissioner, has determined that for the first five-year period the proposed section will be in effect there will be no fiscal implications for state or local governments as a result of enforcing or administering the section. Mr. Raiford also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be that CCMS will have the flexibility to use the most cost effective method of providing employee benefits. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the proposed section. Questions about the content of the proposal may be directed to Ann Glenn at (512) 450-3943 in DHS's Self-support Services. Comments on the proposal may be submitted to Nancy Murphy, Agency Liaison, Policy and Document Support-134, Texas Department of Human Services E-503, P.O. Box 149030, Austin, Texas 78714- 9030, within 30 days of publication in the Texas Register. The amendment is proposed under the Human Resources Code, Title 2, Chapters 22 and 44, which authorizes the department to administer public assistance and day care programs. sec.10.3433. Cost Reimbursement in Child Care Management Services (CCMS) Contracts. (a) (No change.) (b) The CCMS contractor submits bills for costs incurred monthly under the negotiated budget according to the billing schedule specified in the CCMS contract with DHS. For individual budget items deemed not materially significant by DHS in relation to the total cost reimbursement budget, DHS may allow the CCMS contractor to bill a stipulated amount each month subject to DHS approved terms and conditions of fiduciary accountability, periodic review, and reconciliation. 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 June 7, 1993. TRD-9323899 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Proposed date of adoption: September 1, 1993 For further information, please call: (512) 450-3765 Chapter 48. Community Care for Aged and Disabled Eligibility 40 TAC sec.48.2911 The Texas Department of Human Services (DHS) proposes an amendment to sec.48.2911, concerning family care, in its Community Care for Aged and Disabled (CCAD) chapter. The purpose of the amendment is to require clients to pursue eligibility for Medicaid-funded attendant care services or be denied eligibility for family care services. Burton F. Raiford, commissioner, has determined that for the first five- year period the proposed section will be in effect there will be fiscal implications as a result of enforcing or administering the section. The effect on state government for the first five-year period the section will be in effect is an estimated additional cost of $1,330,319 in fiscal year (FY) 1994. There will be an estimated reduction in cost of $4,309,033 in FY 1995; $6,642, 753 in FY 1996; $7,085,961 in FY 1997; and $7,574,469 in FY 1998. Mr. Raiford also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be that limited Title XX funding will only be spent on those clients who are not eligible for Medicaid-funded attendant care services. There will be no effect on local government or small businesses. There is no anticipated economic cost to persons who are required to comply with the proposed section. Questions about the content of the proposal may be directed to Armando Delgado at (512) 450-3217 in DHS's Community Care Section. Comments on the proposal may be submitted to Nancy Murphy, Agency Liaison, Policy and Document Support-129, Texas Department of Human Services E-503, P.O. Box 149030, Austin, Texas 78714- 9030, within 30 days of publication in the Texas Register. The amendment is proposed under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer public assistance programs. sec.48.2911. Family Care. (a)-(c) (No change.) (d) To be eligible for family care, the individual must not be eligible to receive attendant care services funded through Medicaid. (e)
                                                                                                                                                                                          [(d) ] Establishment of a priority level is made by the community care case manager and is based on an assessment of the client's circumstances and on discussions with the client and others actively involved with the client. A Priority 1 family care client is an individual who is dependent upon the services of the family care attendant for the performance of certain personal care tasks and whose health, safety, or well-being may be jeopardized if services on a normally-scheduled service shift were not provided. An individual is considered a Priority 1 family care client if the following criteria are met. (1) The individual is completely unable to perform one or more of the following activities without hands-on assistance from another person: (A) transferring himself into or out of bed or a chair or on or off a toilet; (B) feeding himself; (C) getting to or using the toilet; (D) preparing a meal; or (E) taking self-administered prescribed medications. (2) During a normally-scheduled service shift, no one is readily available who is capable of providing, and who is willing to provide, the needed assistance other than the family care attendant. (3) The DHS Community Care case manager determines that there is a high likelihood the individual's health, safety, or well-being would be jeopardized if family care services were not provided on a single given shift. 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 June 7, 1993. TRD-9323898 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Proposed date of adoption: September 1, 1993 For further information, please call: (512) 450-3765 Chapter 50. Day Activity and Health Services Reimbursement Methodology for Day Activity and Health Services 40 TAC sec.50.6903 The Texas Department of Human Services (DHS) proposes an amendment to sec.50.6903, concerning reimbursement rate determination, in its Day Activity and Health Services (DAHS) chapter. The purpose of the amendment is to change the method used to determine the reimbursement rate. The proposed method will better reflect the costs incurred in the DAHS industry. Burton F. Raiford, commissioner, has determined that for the first five-year period the proposed rule will be in effect there will be fiscal implications as a result of enforcing or administering the rule. The effect on state government for the first five-year period the rule will be in effect is an estimated additional cost of $11,316 in fiscal year (FY) 1993; $51,880 in FY 1994; $63,694 in FY 1995; $74,276 in FY 1996; and $84,858 in FY 1997. There will be no effect on local government as a result of enforcing or administering the rule. Mr. Raiford also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be ensured continuation of the DAHS program. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the proposed rule. Questions about the content of the proposal may be directed to Mary Anne Howard at (512) 450-4050 in DHS's Provider Reimbursement Section. Comments on the proposal may be submitted to Nancy Murphy, Agency Liaison, Policy and Document Support-086, Texas Department of Human Services E-503, P.O. Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the Texas Register. A copy of the proposal is being sent to each DHS field office where it will be available for public comment. The amendment is proposed under the Human Resources Code, Title 2, Chapters 22 and 32, which provide the department with the authority to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413 (502), sec.16, which provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. sec.50.6903. Reimbursement Rate Determination. The Texas Department of Human Services (DHS) determines rate reimbursement in the following manner. (1)-(4) (No change.) (5) Rate setting methodology. Effective June 1, 1993, DHS
                                                                                                                                                                                            [The department] determines the recommended reimbursement rate by the following computation. DHS
                                                                                                                                                                                              [The department] ranks from low to high all provider agencies' projected costs [per unit of service] in each cost area. The [weighted] median cost
                                                                                                                                                                                                from each projected cost area is then determined. The total that is reached from adding the [weighted] median costs
                                                                                                                                                                                                  [medians] from all six cost areas becomes the recommended reimbursement rate. (6)-(7) (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 June 3, 1993. TRD-9323746 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Proposed date of adoption: September 1, 1993 For further information, please call: (512) 450-3765 Chapter 56. Family Planning Subchapter C. Provider Program Requirements 40 TAC sec.56.302 The Texas Department of Human Services (DHS) proposes an amendment to sec.56.302, concerning types of providers, in its Family Planning chapter. The purpose of the amendment is to include advanced nurse practitioners among those who may provide family planning medical services to eligible clients under Title XIX and to include additional examples of agency clinics. Burton F. Raiford, commissioner, has determined that for the first five-year period the proposed section will be in effect there will be no fiscal implications for state or local governments as a result of enforcing or administering the section. Mr. Raiford also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be that the addition of advanced nurse practitioners will expand family planning services for the indigent population, thereby reducing the numbers of unexpected Medicaid-covered births. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the proposed section. Questions about the content of the proposal may be directed to Beth Weber at (512) 338-6460 in DHS's Family Planning/Genetic Services Section. Comments on the proposal may be submitted to Nancy Murphy, Agency Liaison, Policy and Document Support-121, Texas Department of Human Services E-503, P.O. Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the Texas Register. The amendment is proposed under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413 (502), sec.16, which provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. sec.56.302. Types of Providers. (a) Eligible clients under Title XIX may receive family planning medical services from the following providers: (1)-(2) (No change.) (3) agency clinics such as planned parenthood agencies
                                                                                                                                                                                                    , community action agencies, university or medical schools, hospital districts, natural family planning agencies, independent agencies,
                                                                                                                                                                                                      public health service grantees including health departments with family planning clinics and mobile teams. (4) advanced nurse practitioners. (b)-(c) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on June 7, 1993. TRD-9323897 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Proposed date of adoption: August 1, 1993 For further information, please call: (512) 450-3765 TITLE 43. TRANSPORTATION Part I. Texas Department of Transportation Chapter 31. Division of Public Transportation Federal Programs 43 TAC sec.31.36 (Editor's Note: The Texas Department of Transportation proposes for permanent adoption the amended section it adopts on an emergency basis in this issue. The text of the amended section is in the Emergency Rules section of this issue.) The Texas Department of Transportation proposes an amendment to sec.31.36, concerning Section 18 Grant Program. The amendment would delete subsection (c) (3)(C) of this section, which currently prescribes budgeting requirements for Section 18 contractors. The deletion of this requirement allows the contractor more flexibility in its annual budget application. As a first step in the contracting process, eligible recipients must submit their Fiscal Year 1994 funding requests, which include a project budget, to the Texas Department of Transportation no later than June 15, 1993. The amendment is therefore necessary due to serious funding constraints facing Section 18 contractors in Fiscal Year 1994 and the need to provide them sufficient budgetary flexibility to avoid disruption of vital public transportation services and the attendant adverse impact on the public welfare and economies of affected communities. Richard G. Christie, director of public transportation, has determined that for the first five-year period the rule is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the rule. Mr. Christie has certified that there will be no significant impact on local economies or overall employment as a result of enforcing or administering the proposed rule. Mr. Christie also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule as proposed will be additional budgeting flexibility for rural transit systems that provide needed public transportation services. There is no anticipated economic cost to persons or small businesses who are required to comply with the rule as proposed. Comments on the proposal may be submitted to Richard G. Christie, Director of Public Transportation, Attention: Margot Massey, Texas Department of Transportation, 125 East 11th Street, Austin, Texas 78701-2483. The new rule is proposed under Texas Civil Statutes, Articles 6666, 6663b, and 6663c, which provide the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the Texas Department of Transportation, and more specifically, to administer the state public transportation fund and state and federal public transportation programs. 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 June 2, 1993. TRD-9323689 Diane L. Northam Legal Administrative Assistant Texas Department of Transportation Earliest possible date of adoption: July 12, 1993 For further information, please call: (512) 463-8630