Adopted Sections 
 An agency may take final action on a section 30 days after a proposal has been 
published in the Texas Register. The section becomes effective 20 days after the 
agency files the correct document with the Texas Register, unless a later date 
is specified or unless a federal statute or regulation requires implementation 
of the action on shorter notice. 
 If an agency adopts the section without any changes to the proposed text, only 
the preamble of the notice and statement of legal authority will be published. 
If an agency adopts the section with changes to the proposed text, the proposal 
will be republished with the changes. 
 
   
  TITLE 1. ADMINISTRATION 
 Part XVI. State Council on Competitive Government 
  Chapter 401. Administration 
  
  The Council on Competitive Government adopts new sec. sec.401.1-401.104, 401. 
21-401.28; 401.41-401.49; 401.61, 401.62; 401.81, 401.82, 401.101-401.104, 
concerning administration and implementation of the competitive government 
process. Sections 401.1, 401.2, 401.26, 401.43, 401.61, 401.62, 401.63, 401.81, 
and 401.102 are adopted with changes to the proposed text as published in the 
September 14, 1993, issue of the Texas Register (18 TexReg 6163). Sections 
401.3, 401.4, 401.21-401.25, 401.27, 401.28, 401.82, 401.101, 401.103, and 
401.104 are adopted without change and will not be republished. 
 The new rules apply the statutory requirements of Texas Civil Statutes, Article 
601b, Article 15, by defining standard terms, establishing the guidelines for 
meetings, providing for identification and review of state services, 
establishing requirements for the evaluation of proposals, identifying duties of 
state agencies, and providing for monitoring of services. 
 The council proposes the rules to establish general guidelines and procedures 
to insure an orderly process to encourage competition and accomplish the 
responsibilities provided by law. The council is comprised of the governor, the 
lieutenant governor, the comptroller, the speaker of the house of 
representatives, the presiding officer of the General Services Commission, and 
the commissioner of the Texas Employment Commission representing labor. The 
council has no staff of its own and will utilize staff from the council members' 
respective agencies to assist in the council's responsibilities. 
 Comments were received from private organizations, state agencies labor unions, 
and one individual. The comments are addressed as follows. 
 AFL-CIO. 
 The council received comments from the Texas AFL-CIO. The primary concerns 
raised by the AFL-CIO addressed the minimum requirements for proposals listed in 
sec.401.61, concerning minimum requirements for proposals. The AFL-CIO requested 
that this section be amended to include specific requirements concerning wage 
and benefit levels to be provided by private entities to whom the council may 
award a contract relating to the provision of a state service. The AFL-CIO also 
expressed disapproval of the notion of any contracts being awarded by the 
council to small businesses that provide "bare-bones coverage" pursuant to the 
Small Employer Health Insurance Availability Act (House Bill 2055, 73rd 
Legislature, 1993). The AFL-CIO similarly requested a provision requiring 
workers' compensation coverage for all workers performing a state service under 
a contract awarded by the council. 
 While the council recognizes the concerns of the AFL-CIO regarding employee 
benefits, the council declines to accept these recommendations. The levels of 
health benefits, workers' compensation coverage, and wages may vary depending 
upon the nature of the contract being considered, and the council retains the 
ability to establish minimum benefits requirements for a particular project in 
the applicable bid specifications. The council will assess this issue on a case-
by-case basis. In fact, the council is required by its enabling statute (Texas 
Civil Statutes, Article 601b,  sec.15.07) to analyze the fringe benefits offered 
by proposers to their employees who will be performing the particular state 
service before awarding a contract. This provides assurance to the AFL-CIO that 
employee benefits issues will be considered carefully by the council in 
connection with each contract awarded by the council. 
 In the area of employee rights, the AFL-CIO requests a provision securing, to 
the extent that they exist, the same level of employee rights afforded state 
workers (e.g., the right to due process, property rights, and the right to 
privacy) to employees of private entities to whom the council awards a contract. 
The AFL-CIO also requests a provision requiring proposers to disclose any 
charges of discrimination or unfair labor practices lodged against them. 
 The council accepts these comments to the extent that proposers should be 
required to disclose any discrimination or unfair labor practice charges that 
resulted in convictions or adverse judgments being entered against the proposer 
or any person or entity affiliated with the proposer. The council declines the 
suggestion that successful proposers be required to ensure the same level of 
employee rights that state workers possess, since there is not a single level of 
employee rights available to state workers. There are differences across 
agencies, depending upon agency employee policy practices. The council will 
require, however, that a successful proposer ensure that the employees in 
question be afforded the same rights as any other employee of the proposer. 
Consistent with that intention, a new paragraph (6) has been added to 
sec.401.61. 
 The AFL-CIO requested that language be added to further clarify the standards 
required for designation as a Historically Underutilized Business (HUB). 
 The council agrees with this proposal. Section 401.61 has been changed to 
require qualified HUBs be registered with the General Services Commission. 
 Texas State Employees Union/Communications Workers of America Local 6186 
(TSEU/CWA). 
 Comments were received from the Texas State Employees Union/Communications 
Workers of America Local 6186 (TSEU/CWA). TSEU/CWA adopted the comments of the 
AFL-CIO in addition to offering several of its own. 
 TSEU/CWA suggested adding new subsections to sec.401.61 that would prevent 
persons or business entities convicted of certain crimes from being awarded 
contracts and that would set specific performance standards for contractors. The 
union also recommended that all documents generated by the council be accessible 
to the public and that an appeals process be created. Regarding sec.401.4, 
concerning reporting cost savings, TSEU/CWA suggested that cost savings should 
be real rather than estimated to avoid a potentially inappropriate reduction of 
agency budgets or legislative appropriations. They also recommended that the 
public be able to comment on any study prepared by the Council. 
 The council agrees with TSEU/CWA's recommended addition to sec.401.61 to the 
extent that it seeks to ensure that the council considers information showing 
that a proposer previously has been convicted of bribery or a similar offense. 
The council agrees that it should consider that information when evaluating 
proposals, and may decide to disqualify a proposer on that basis. A new 
paragraph (9) has been added to sec.401.61 to require that detailed information 
of any convictions for bribery or similar offenses be included in a proposal. 
The council declines to include a blanket disqualification, opting instead to 
retain the ability to assess each case on an individual basis. The council also 
declines to go further, as TSEU/CWA suggests, and disqualify proposers who have 
been convicted of "collusion...in restraint of freedom of competition" or have 
"made an admission of guilt" of bribery or collusion "which is a matter of 
record but has not been prosecuted for such conduct." The council questions its 
access to information of this sort other than from the proposers themselves, and 
again believes that a blanket disqualification is not appropriate. The council 
believes that issues such as these may and should be explored by the council 
when evaluating proposals on a case-by-case basis. 
 The council also agrees with TSEU/CWA's suggestion regarding performance 
standards, to the extent that it seeks to require proposers to specify how they 
will satisfy performance standards set forth in bid specifications established 
by the council. A new paragraph (10) has been added to sec.401.61 to this end. 
 The council also declines to insert further language regarding the 
accessibility of council documents to the public. Most documents held or 
prepared by the council are subject to the Open Records Act, and are therefore 
accessible to the public. Additional provision in the rules for accessibility of 
council documents is considered unnecessary. The council also declines to 
incorporate TSEU/CWA's recommendation that a new section be added specifically 
addressing public comments on any studies the council prepares. Council meetings 
are open, public meetings, and sec.401.27 already provides reasonable guidelines 
for hearing public comments at council meetings. 
 The council accepts TSEU/CWA's comment urging the addition of an appeals 
process. The council has added new provisions to sec.401.62 to accomplish that 
goal. 
 As to the issue of reporting cost savings, the council is required by law 
(House Bill 2626, sec.66(b), 73rd Legislature, 1993) to certify the estimate of 
potential savings or enhanced revenue amounts resulting from the council's 
efforts to the legislature. Full compliance with the provisions of Texas Civil 
Statutes, Article 601b, Article 15, and the council's rules should eliminate 
misleading cost savings estimates. 
 TSEU/CWA also objected to sec.401.22, concerning designees, which allows 
council members to designate representatives;  sec.401.24(d), concerning agenda 
for council meetings, which allows the addition of agenda items in certain 
emergency situations; and sec.401.26, concerning voting procedures, which allows 
the council to take action upon the majority vote of those members present and 
voting. 
 The council rejects TSEU/CWA's first and second recommendations. Texas Civil 
Statutes, Article 601b, sec.15.03, specifically grants council members the 
authority to appoint designees. The Open Meetings Act specifically provides 
authority for the addition of emergency agenda items. 
 Regarding voting procedures, the council accepts TSEU/CWA's recommendation that 
action should be taken based on the majority vote of all council members, unless 
a council member is ineligible to vote on a particular matter (e.g., that 
council member's agency is a proposer for the contract in question). In such a 
case, a majority vote of those council members eligible to vote is required. 
Section 401.26 has been amended to reflect this approach. 
 TSEU/CWA recommended that sec.401.48(b)(2)-(4) be deleted from the rules, 
leaving competitive bidding as the only competitive purchasing process available 
to the council. 
 Acceptance of this proposal would contradict the provisions of Texas Civil 
Statutes, Article 601b, sec.15.06, which require the council to subject 
identified state services to either a competitive bidding process or another 
process that creates competition. Accordingly, the council declines to accept 
this suggestion. 
 TSEU/CWA seeks clarification on whether sec.401.49, concerning conflict of 
interest, which prohibits a person with a conflict of interest from 
participating in certain aspects of the competitive process, applies to council 
members. They suggested that the conflict of interest provisions be strengthened 
to protect the public against council-member wrongdoing. The union also 
requested that provisions be added to sec.401.49(e) for assisting state 
employees in competing with other proposers. 
 The council declines to accept the suggestion regarding the conflict of 
interest provisions for two reasons. First, there are no provisions in the rules 
or statute that exempt council members from the conflict of interest provisions 
in sec.401.49, and the council intends that no such exemption be implied or 
inferred. Second, council members, as state officers, are subject to the 
standards of conduct in Texas Civil Statutes, Article 6252-9b. 
 The council agrees with TSEU/CWA that providing assistance to state employees 
interested in bidding on an identified state service may be beneficial. The 
council intends to give this matter further study. TSEU/CWA did not suggest any 
specific amendment language, and the council welcomes any specific suggestions 
on this issue. 
 TSEU/CWA recommended that specific requirements for minimum acceptable cost 
savings be added to sec.401.62, concerning evaluation, for use in the evaluation 
of proposals by the council. Access to all documents generated was requested 
again, as was their request for an appeals process. 
 The council declines to accept the recommendation to establish a minimum 
threshold for cost savings. Minimum cost savings requirements are best decided 
on a case-by-case basis. As written, the rule allows the council to consider the 
unique factors associated with each project. 
 As previously stated, regarding public access to council documents, ample 
protection is afforded to the public by the provisions of the Open Records Act 
and the council declines to add provisions to these rules which may conflict 
with or complicate that established body of law. Regarding an appeals process, 
again as stated above, an appeals process was added in sec.401.62. 
 TSEU/CWA recommended that sec.401.82 concerning disposal of surplus and salvage 
property. be amended to allow affected agencies the authority to dispose of 
surplus and salvage property. 
 The council declines to accept this proposal. This rule was drafted to 
specifically avoid the premature sale of equipment by agencies. Since agencies 
have a duty to report any salvage and surplus property that result from a 
council-initiated contract, the council should have a better understanding of 
what equipment should be retained, sold, or possibly leased to the successful 
proposer. 
 TSEU/CWA recommended that sec.401.27, concerning public comment, be amended to 
allow public comments on each agenda item before a vote is taken. 
 This recommendation does not warrant a change in the rules. Provisions 
currently in the rules allow for public comments to be heard throughout the 
meeting at the discretion of the presiding officer. 
 Texas Association of Business. 
 The Texas Association of Business (TAB) requested that most of the minimum 
requirements for proposals listed in sec.401.61, concerning minimum requirements 
for proposals, be eliminated. Specifically, TAB objected to proposers being 
required to provide detailed descriptions of the number employees and their 
wages, the level of benefits to be offered, and whether workers' compensation 
coverage will be provided. TAB further commented that these requirements place 
an undue burden on potential bidders that create unnecessary administrative 
costs and red tape. TAB also objected to requiring private sector bidders to 
provide benefits comparable to those offered to state employees. 
 The council declines to accept these proposals because this information is 
necessary for the council to make informed decisions regarding a proposal's 
suitability for acceptance. Further, Texas Civil Statutes, Article 601b, sec.15. 
07, specifically requires the council to analyze employee benefits to be 
provided under contracts awarded by the council, and the information required by 
sec.401.61, concerning minimum requirements for proposals, is necessary to 
perform the analysis required by the statute. 
 Minority Purchasing Council of Austin. 
 The Minority Purchasing Council of Austin (MPC) proposed that the rules be 
flexible enough to allow organizations like theirs, which assist historically 
underutilized businesses in the contract process by disseminating bids, 
formulating bid responses, and other related services, to participate in 
improving the purchasing process. MPC also theorized that their service could be 
reasonably susceptible to a competitive process. 
 MPC's comments do not warrant a change in the proposed rules. If MPC would like 
to aid in improving the purchasing process, comments can be made in either a 
written statement or perhaps through public comments at a council meeting. If 
MPC wants its service designated as an "identified state service," it may submit 
a suggestion to the council under sec.401.41, concerning requirements for 
suggestions, and give the council more information supporting this idea. The 
council welcomes MPC's input. 
 Consulting Engineers Council of Texas. 
 Comments were received from the Consulting Engineers of Texas (CEC-T), 
recommending that the council take into consideration any programs an affected 
agency may already have in place for contracting out an identified state 
service, and suggesting that sec.401.47(a) be modified to expressly refer to the 
use of professional services through "competitive quality-based selection. " 
 The council recognizes merit in CEC-T's suggestion, and believes that the 
council should use its authority to examine state services that are already 
contracted out in part, to assess the efficiency of that arrangement and 
determine if improvement is possible. Section 401.43(b) has been amended to add 
new paragraphs (7) and (8) to reflect this intention. The council declines to 
make the change suggested by CEC-T to sec.401.47(a). The council believes that 
sec.401.47(a) already provides for the kind of process suggested by CEC-T. 
 Electronic Data Systems Corporation. 
 The council received comments from Electronic Data Systems Corporation (EDS) 
requesting the addition of provisions regarding methods to be used by state 
agencies to pay the costs of making bids, requiring that bid specifications not 
be changed, that no bid process be initiated unless it can be completed, and 
consideration of the bid process on HUBs. 
 The council declines EDS' comments regarding methods to be used by state 
agencies to pay the costs of making the bids. The rules sufficiently provide for 
the concept of working an agency's cost of making a bid into our analysis of 
actual costs. 
 The council further rejects the concept of guaranteeing that bid specifications 
not be changed once issued and that no bid process is initiated unless it can be 
completed. The council must have the ability to ensure that the bid 
specifications include the detail necessary to accomplish their purpose and that 
a bid not be accepted unless it accomplishes that end. 
 The council agrees that the bid process should consider the impact on HUBs but 
does not agree that further elaboration in the rules is necessary to accomplish 
this end. 
 EDS suggested that the council include a method to hold a state agency 
accountable should it win a state contract. 
 The council agrees that state agencies and private contractors should be held 
accountable should they win a state contract, but believes that the monitoring 
procedures established pursuant to Subchapter F of these rules will achieve that 
purpose. 
 EDS further suggested that rules include benefit comparison models for both 
private and public bidders to facilitate equitable comparison of employee 
redeployment and benefits issues. 
 The council agrees that issues involving the impact on employees affected by a 
contract award are difficult but believes that the rules already allow for 
consideration of benefit comparison models or other means determined to be 
beneficial in the efficient and equitable comparison of benefit levels. 
 EDS recommended that major technology procurement be achieved through 
competitive bids and not through a catalog selection system. It also requests 
the council include a methodology to determine the costs of new technology. 
 The council rejects the concept of requiring that any council action involving 
technology procurement be achieved through competitive bid. The council will 
evaluate whether a competitive bid is the most efficient method of securing 
major technology and will use the process that best fits the particular 
situation. 
 The council further declines the request to include specific methodology to 
determine costs of new technology. The rules sufficiently allow for 
consideration of this issue in developing appropriate cost methodology to be 
used when securing major technology. 
 EDS suggested that sec.401.1, concerning general statement of purpose, be 
amended to include goals other than improved service quality (e.g., cost-
effectiveness). 
 While the council intended for the term "quality" to embody the notion of cost-
effectiveness in the provision of state services, sec.401.1 has been amended to 
make that clear. The council accepts this comment from EDS. 
 EDS also recommended that the definition of "agency in-house estimate" be 
expanded to include language referring to an agency's duty to include indirect 
costs in its analysis of a service. EDS also offered an alternative definition 
for the term "competitive process," which focuses on the process of comparing 
the costs of public and private service providers rather than the actual 
purchasing procedures designed by the council. Finally, EDS found the definition 
of "suggestion" to be unclear in its scope. Specifically, EDS asked whether the 
term includes unsolicited "proposals." 
 The council declines to accept the suggested change for "agency in-house cost 
estimate." Section 401.43, concerning council mandated information, provides 
sufficient guidelines for an agency performing an analysis at the request of the 
council, and specifically requires that cost information be prepared by state 
agencies using the council-approved cost methodology. Therefore, it is not 
necessary to modify the definition of "agency in-house cost estimate." 
 The council also declines EDS' definition of "competitive process." The 
council's definition of "competitive process" is broader and more in line with 
the legislative intent of Texas Civil Statutes, Article 601b, Article 15. 
However, the definition has been changed to add clarity to the concept. The 
definition of "suggestion" has been changed to include both solicited and 
unsolicited ideas. Nevertheless, the term "suggestion" does not include a 
"proposal" as it is defined in the rules. An unsolicited document that meets the 
minimum requirements of a "proposal" will only be treated as such once the 
service has been designated an identified state service and has been subjected 
to a competitive process by the council. 
 EDS requested clarification on the scope of the council's exemption from state 
purchasing laws. It appears from the inquiry that EDS believes that the rule is 
designed to exempt the council from its own rules and statutory guidelines. 
 Section 401.3 is based on authority granted by the legislature in Texas Civil 
Statutes, Article 601b, sec.15.09, exempting the council from state laws 
regulating or limiting state purchasing decisions. Through this provision, the 
legislature granted the council the freedom to develop rules and procedures that 
will facilitate attainment of the prescribed goals. 
 EDS questioned whether an affected state agency can, if directed by the 
council, perform such tasks as preparing its own requests for proposals and 
invitations to bid. 
 As proposed, sec.401.47(b), concerning requirement that state engage in a 
competitive process, provides authority for the council to designate any other 
state agency besides the General Services Commission to prepare bid 
specifications. This language does not preclude the council from requesting the 
affected agency to prepare the necessary documents, if the council determines 
that it would not involve a conflict. In any event, all such information will be 
closely reviewed, and subject to verification, by the council. 
 EDS recommended that several processes contained within the rules include time 
limits for compliance. Specifically, they requested a time limit be placed on 
agencies when having to prepare council mandated analyses (sec.401.43) , on the 
council's designation of a suggested service as an identified state service 
(sec.401.44), and on the council's evaluation of proposals (sec.401.62). 
 The council declines to specify time requirements in the rules. The council 
will set time limits on a case-by-case basis due to the unique nature of each 
project. Language has been added to sec.sec.401.43(a), 401.62(c), and 401.81(c), 
making it clearer that any requested information must be provided within the 
time limits prescribed by the council. 
 EDS requested that a provision be added to sec.401.62 requiring the council to 
state a reason for rejecting a proposal. EDS also wants the council or a 
designee to negotiate with a proposer instead of with the affected agency as 
required by subsection (c). 
 The council has added new language to sec.401.62 that allows a contractor to 
lodge a protest when a proposal is rejected, but declines to amend sec.401.62 as 
requested. Once a contract has been awarded, materials relating to the council's 
evaluation process will be open to public inspection and any proposer can review 
those materials to determine the reasons the council selected another proposer. 
Relating to EDS' other comment here, the council has added new language to 
sec.401.62 to clarify the council's ability to enter into negotiations on behalf 
of a state agency. 
 State Auditor's Office. 
 The council received comments from the State Auditor's Office (SAO) on four 
rules. First, regarding sec.401.42, SAO requested that staff be allowed to group 
and summarize suggestions submitted to the council. Second, SAO requested a 
deadline for an agency to provide information requested under sec.401.43. The 
third change SAO requested is that language be added to sec.401. 47 to allow the 
council to switch an agency from contracting out for a service to providing it 
either in-house or through an inter-agency contract. The last change desired by 
SAO was the inclusion in sec.401.61 of a detailed description of how performance 
standards will be met (e.g., quality specifications and financial stability). 
 SAO's first and third comments do not warrant changes in the rules. Council 
members are allowed to designate appropriate staff under sec.401.22(c). Also, 
the council has the authority to direct an agency to provide a service in-house 
or to secure it through an interagency contract, if the service can be better 
provided in that manner. The council declines to accept the second request 
concerning setting specific time limits on agency compliance because time 
constraints vary on a case-by-case basis depending upon the complexity of the 
contract. 
 The council agrees with SAO's suggestion regarding performance standards, to 
the extent that it requires proposers to specify how performance standards 
established by the council in its bid specifications will be satisfied. The 
council has added a new paragraph (10) to sec.401.61 to achieve this result. 
 Texas Parks and Wildlife Department (TPWD). 
 TPWD requested assistance in cutting the administrative costs related to 
governmental procurement rules that ultimately increase the price for goods and 
services. 
 It is the goal of the council to make the governmental procurement process a 
more cost-effective system. Administrative costs that can either be reduced or 
eliminated should surface in the cost analyses performed by affected agencies. 
 TPWD expressed concern that leveling the playing field between public and 
private sector service providers could be troublesome, in view of the unique 
costs facing agencies (e.g., open records compliance, open meetings compliance, 
legislative reporting requirements, and other statewide overhead costs). 
 The council agrees that this may be true, and has addressed this and other 
issues in its cost methodology. No amendments to the rules are necessary. 
Agencies are encouraged to evaluate unnecessary requirements and implement their 
findings, where possible, or forward the information to the legislature for 
evaluation. 
 TPWD stressed the importance of in-house monitoring and planning of services 
that are contracted out. Also mentioned were the benefits of partial outsourcing 
of certain services. 
 The rules are designed to provide for monitoring, and to accommodate public and 
private sector partnerships, if it is determined to be the most effective and 
efficient manner to provide a service. 
 TPWD asked whether all private sector contractors with the state will be 
required to provide benefits comparable to those provided by the state. 
 This question is outside of the scope of the council's authority. The 
provisions contained in the rules apply only to those contractors who 
participate in a council-initiated competitive process. Once a service is 
designated an identified state service, contractors desiring to provide that 
service must observe the council's guidelines. 
 TPWD asked whether certain state purchasing requirements will be waived. They 
also asked if an agency must comply with the council if the council initiates a 
countywide or statewide contract for an identified state service that the agency 
perceives is more effectively provided on an agency wide basis. TPWD asked if 
all state entities receiving state funds are covered by the council's 
recommendations. 
 Only state agencies falling within the Texas Civil Statutes, Article 601b, 
Article 15, definition of "state agency" are required to follow the 
recommendations of the council. Any purchases made as a result of a council-
initiated competitive process will be subject to all the statutes and rules 
applicable to the council. Ultimately, agencies are directed under the statute 
to cooperate fully with the council. However, it should be noted that the rules 
anticipate an overall costs savings to agencies and that the application of a 
contract will be determined on an individual basis. To facilitate the process, 
agencies are given an opportunity within their analyses to convey to the council 
any special facts that would be beneficial in the decision making process. 
 TPWD asked how loss factors and quality issues will be included in cost 
comparisons? What happens if a contractor fails to meet the necessary service 
level after the contract has been awarded? What if contract prices dramatically 
increase due to "low-balling" by contractors? 
 The rules allow for loss factors and quality issues to be considered by 
agencies in evaluating costs as well as by the council in requesting additional 
information. The council is developing monitoring guidelines to ensure early 
detection of nonperformance problems to minimize any negative effects. The ease 
with which a new contract can be put in place in the event of contractor default 
is a consideration the council intends to research before committing an 
identified state service to a competitive process. 
 TPWD asked whether the public sector would be required to respond to 
unsolicited suggestions and proposals from the private sector. 
 Any unsolicited suggestions or proposals for an identified state service must 
be submitted to the council in accordance with the rules. The council will then 
respond appropriately. 
 TPWD questioned the applicability of sharing statewide overhead costs with the 
private sector rather than having them fall exclusively on the public sector. 
They also questioned how "real savings" can be determined after a service has 
been contracted out, potentially leaving the need for "out-placing" displaced 
workers, eliminating empty office space, and other related variables. They also 
asked whether private sector profits will be included in the cost methodology, 
whether the council will use the 1992 DIR committee-developed cost methodology 
for certain technology projects, and what formula will be used to accurately 
reflect the level of benefits paid to state employees. They asked whether the 
pros and cons of requiring private contractors to match state benefits are fully 
being considered. 
 To the extent these issues are not mandated by statute, these concerns are 
policy questions to be considered by the council in determining the appropriate 
cost methodology to be used. 
 TPWD further asked who owns the data when processing services are contracted 
out, as between the agency and the private contractor. 
 To the extent this question has not been decided by law, the details would be 
included within the contract provisions. 
 Texas Department of Criminal Justice. 
 The council received comments from Texas Department of Criminal Justice (TDCJ) 
concerning the minimum requirements for proposals as they affect information 
involving employees and HUBs. TDCJ requests that a proposer meet the same 
guidelines pertaining to work force underutilization and HUB procurement as a 
state agency is required to provide. 
 The council agrees that information identifying HUBs is significant but 
believes the suggestion is too burdensome to be a universal requirement for all 
competitive processes to be employed by the council. The rules allow such 
requirements to be included in the bid process and at other times the council 
considers appropriate. 
 Texas Department of Transportation. 
 The council received comments from the Texas Department of Transportation 
(TxDOT). TxDOT expressed an overall agreement with the rules but recommended 
several amendments. 
 TxDOT recommended that the definition of "suggestion" be narrowed to avoid a 
large volume of correspondence being forwarded to the council. Specifically, 
TxDOT suggested that an estimated minimum savings requirement be considered. 
 The council understands TxDOT's concerns but declines to incorporate any 
exceptions into the rules at this time. The council needs the opportunity to 
review a reasonable volume of suggestions before considering the possibility of 
setting minimum standards. 
 TxDOT suggested that the "level playing field" concept be defined in the rules. 
They also offered two alternative ideas for leveling the playing field between 
public and private service providers. 
 The council believes there are too many variables involved in "leveling the 
playing field" to provide a practical or workable definition that is appropriate 
for all cases. The council anticipates that different approaches will be needed 
to accurately compare services subjected to council review. Accordingly, the 
council declines to make any changes at this time. 
 TxDOT recommended that sec.401.81(d) be amended to provide blanket waivers for 
ongoing contracting efforts by agencies. 
 The council declines to accept this suggestion because the rules currently 
provide sufficient protection for agencies with existing contracts. 
 TxDOT suggested that agencies be included in the monitoring process developed 
by the council. 
 The council accepts TxDOT's suggestion and has added a new paragraph (9) to 
sec.401.102 that requires agency input in the monitoring process. 
 Individual Commenter. 
 A commenter suggested that state employees have the option to bid on identified 
state services. 
 The rules already provide state employees with this option. 
 A commenter offered the observations that large private corporations may 
provide superior benefits than those offered by the state, that a variety of 
services should be examined by the council, that training sessions should be 
sponsored by the state to draw new contractors into the system, that reporting 
requirements to the council should be minimized, that opportunities for having 
political subdivisions of the state bid on services should be explored, and that 
the council should share its experiences with other jurisdictions. A commenter 
also suggested that the council thoroughly examine the effect of the 
Productivity Bonus Program on the council's cost-saving activities. 
 The issues raised by the commenter are issues to be decided in deliberations of 
the council. At this time they cannot be incorporated into the rules. 
   
  Subchapter A. General Rules 
 
  1 TAC sec.sec.401.1-401.4 
 new sections are adopted under the Texas Civil Statutes, Article 601b, Article 
15, which provide the council with the authority to promulgate rules to carry 
out the purposes of that article. 
 
 
  sec.401.1. General Statement of Purpose.  Pursuant to Texas Civil Statutes, 
Article 601b, Article 15, the State Council on Competitive Government is 
responsible for developing a program to encourage competition, innovation, and 
creativity in providing state services in order to improve the quality and cost-
effectiveness of those services. These rules are promulgated to inform the 
public and provide an orderly procedure to accomplish the responsibilities 
provided by law. 
 
   
  sec.401.2. Definitions.   The following words, terms, and phrases, when used 
in this chapter, shall have the following meanings, unless the context clearly 
indicates otherwise: 
   
     Agency in-house cost estimate-A state agency report that contains the 
agency's computation of the estimated cost to the agency to produce or deliver a 
desired quality and quantity of an identified state service using agency 
personnel and facilities, which computation must be made using the council-
approved cost methodology. 
   
     Clerk-The executive director of the commission, who shall serve as the 
clerk of the council pursuant to sec.401.21(b) of this title (relating to 
Council Officers) as follows. 
   
     Commission-The General Services Commission. 
   
     Commercially available service-A service performed or provided by at least 
two private service providers within the state. 
   
     Competitive process -Any procedure approved by the council that is designed 
to provide identified state services in competition with private service 
providers or other state agency providers. 
   
     Comptroller-The Comptroller of Public Accounts. 
   
     Council-The State Council on Competitive Government. 
   
     Council-approved cost methodology-A methodology developed or approved by 
the council, designed to accurately identify all direct and indirect costs 
incurred by a state agency in providing a particular service, for use by state 
agencies in preparing agency in-house cost estimates or similar reports to the 
council, and for other purposes specified in this chapter. 
   
     Designees-Individuals designated by council members to act on their behalf 
pursuant to sec.401.22 of this title (relating to Designees) as follows. 
   
     Historically underutilized business: 
 
  (A) a corporation formed for the purpose of making a profit in which at least 
51% of all classes of the shares of stock or other equitable securities are 
owned by one or more persons who: 
 
  (i) have suffered the effects of discriminatory practices or similar insidious 
circumstances over which they have no control, including African Americans, 
Hispanic Americans, women, Asian Americans, and Native Americans; and 
   
  (ii) have a proportionate interest and demonstrate active participation in the 
control, operation, and management of the corporation's affairs; 
     
  (B) a sole proprietorship created for the purpose of making a profit that is 
100% owned, operated, and controlled by a person described by subparagraph 
(A)(i) of this paragraph; 
   
  (C) a partnership formed for the purpose of making a profit in which at least 
51% of the assets and interest in the partnership is owned by one or more 
persons who: 
 
  (i) are described by subparagraph (A)(i) of this paragraph; and 
   
  (ii) have a proportionate interest and demonstrate active participation in the 
control, operation, and management of the partnership affairs; 
     
  (D) a joint venture in which each entity in the joint venture is a 
historically underutilized business under this section; or 
   
  (E) a supplier contract between a historically underutilized business under 
this section and a prime contractor under which the historically underutilized 
business is directly involved in the manufacture or distribution of the supplies 
or materials or otherwise warehouses and ships the supplies. 
     
     Identified state service-A service provided by the state that the council 
has identified as a commercially available service and is brought under study by 
the council to determine whether the service may better be provided through 
competition with private service providers and/or state agencies other than the 
agency currently providing the service. 
   
     Management study -A state agency analysis of an activity conducted by that 
agency that is made to determine the essential elements of an activity, the 
quality and quantity of the services delivered, and the method used by the 
agency to provide those services. 
   
     Person-Any individual, corporation, partnership, joint venture, or other 
legal entity, including an agency or office of state or local government. 
   
     Proposal-An offer to perform an identified state service, made within 
guidelines prescribed by the council. 
   
     Proposer-Any person who submits a proposal to the council. 
   
     Salvage property -Any personal property which through use, time, or 
accident is so depleted, worn out, damaged, used, or consumed that it has no 
value for the purpose for which it was originally intended. 
   
     Service provider -A public or private entity performing an identified state 
service. 
   
     State agency: 
 
  (A) any department, commission, board, office, or other agency in the 
executive branch of state government created by the constitution or a statute of 
this state, except the Texas High-Speed Rail Authority; 
   
  (B) the Supreme Court of Texas, the Court of Criminal Appeals of Texas, a 
court of civil appeals, or the Texas Civil Judicial Council; or 
   
  (C) a university system or an institution of higher education as defined in 
the Education Code, sec.61.003, as amended, other than a public junior college. 
     
     Suggestion-A solicited or unsolicited letter, memorandum, or other document 
submitted to the council or a state agency pursuant to sec.401.42 of this title 
(relating to Submission and Receipt of Suggestions), recommending that the 
council consider designating a particular state service as an identified state 
service. 
   
     Surplus property -Any personal property which is in excess of the needs of 
any state agency and which is not required for its foreseeable needs. Surplus 
property may be used or new but possesses some usefulness for the purpose of 
which it was intended or for some other purpose. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on November 3, 1993. 
 TRD-9331438 
  John Pouland 
 Executive Director 
 General Services Commission 
    Effective date: November 24, 1993 
 Proposal publication date: September 3, 1993 
 For further information, please call: (512) 463-4028 
         
         
  Subchapter B. Council Meeting Guidelines and Requirements 
 
  1 TAC sec.sec.401.21-401.28 
 new sections are adopted under Texas Civil Statutes, Article 601b, Article 15, 
which provide the council with the authority to promulgate rules to carry out 
the purposes of that article. 
 
 
  sec.401.26. Voting Procedures.  The council may take action upon a majority 
vote of the members eligible to vote on that action. A council member is not 
eligible to vote on the award of a contract by the council if that council 
member has a conflict of interest under sec.401.49 of this title (relating to 
Conflict of Interest), or is otherwise precluded from voting by sec.401.49 of 
this title. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on November 3, 1993. 
 TRD-9332439 
  John Pouland 
 Executive Director 
 General Services Commission 
    Effective date: November 24, 1993 
 Proposal publication date: September 3, 1993 
 For further information, please call: (512) 463-4028 
         
         
  Subchapter C. Identification and Review of State Services 
 
  1 TAC sec.sec.401.41-401.49 
 new sections are adopted under Texas Civil Statutes, Article 601b, Article 15, 
which provide the council with the authority to promulgate rules to carry out 
the purposes of that article. 
 
 
  sec.401.41. Requirements for Suggestions. 
 
  (a) A suggestion must: 
 
  (1) be in writing; 
   
  (2) describe a service currently provided by the state that is reasonably 
susceptible to a competitive process; and 
   
  (3) provide sufficient information to allow the council to review the 
suggestion. 
 
       
  sec.>>401.42. Submission and Receipt of Suggestions. 
 
  (a) Any person may submit written suggestions to the council. Such suggestions 
should be submitted to the council through the clerk, by means of facsimile 
transmission, hand delivery, or private or public mail. The clerk will promptly 
distribute copies of all suggestions to council members. 
   
  (b) The council may request and receive suggestions from any source, public or 
private. 
   
  (c) A state agency that receives a suggestion or proposal shall forward a copy 
to the clerk within 10 days of the receipt of the same by the state agency. 
 
     
  sec.401.43. Council-Mandated Information. 
 
  (a) The council may require a state agency to provide information regarding 
any service it provides, to assist the council in identifying state services 
that are commercially available and could be provided through competition with 
commercial sources and/or other service providers. A state agency that has been 
required by the council to provide information regarding a service must provide 
a written analysis of the service, within the time prescribed by the council. 
   
  (b) The written analysis must include the following: 
 
  (1) a brief overview and a description of the service, including the technical 
requirements or specifications of the service; 
   
  (2) an analysis of the quality and quantity of work performed by the agency in 
relation to the service; 
   
  (3) a description of any efficiency initiatives the agency has designed or 
implemented in relation to that service; 
   
  (4) a detailed statement and itemization of all direct and indirect costs 
incurred in providing the service (including costs incurred by other agencies, 
such as the comptroller, treasurer, and attorney general), based upon the 
council-approved cost methodology and conforming to all applicable council 
guidelines and instructions that will enable the council to make meaningful and 
accurate cost comparisons with other potential service providers; 
   
  (5) a detailed statement of the number of full-time employees (or full-time 
employee equivalents), and their salary levels, used to provide the service; 
   
  (6) a detailed description of the service that conforms to all applicable 
council guidelines and instructions, containing sufficient information, as 
determined by the council, to allow the council to obtain adequate price 
information from other qualified service providers; 
   
  (7) a detailed description of existing contractual obligations, related to all 
or any portion of the service, incurred by the agency within the last three 
calendar years; 
   
  (8) detailed description of the agency's level of satisfaction with the 
service provider and the performance records of the service providers hired as a 
result of the contracts described under paragraph (7) of this subsection; and 
   
  (9) any other information requested by the council. 
 
       
  sec.401.44. Designation of Identified State Services. 
 
  (a) After it has reviewed a state service pursuant to sec.401.43 of this title 
(relating to Council-Mandated Information), the council may designate the 
service as an identified state service. The designation shall be in writing, and 
copies shall be provided to the clerk and all affected state agencies. 
   
  (b) Alternatively, after it has reviewed a state service pursuant to 
sec.401.43 of this title (relating to Council-Mandated Information), the council 
may defer a decision regarding designation of that service as an identified 
state service pending further study of the service. Upon completion of such 
further study, the council may then designate the service as an identified state 
service, which designation shall be in writing, with copies provided to the 
clerk and all affected state agencies. 
   
  (c) For purposes of this section and sec.401.46 of this title (relating to 
Determination to Subject an Identified State Service to Competition), an 
"affected state agency" is an agency that provides all or a portion of the state 
service designated by the council as an identified state service. 
 
     
  sec.401.45. Information Required for Council's Study. 
 
  (a) The council may require a state agency to prepare a written analysis of 
one or more identified state services. The council may require that any such 
written analysis include the information set forth in sec.401. 43(b) of this 
title (relating to Council-Mandated Information), and any other information 
deemed pertinent by the council. 
   
  (b) The council may request information from any source, public or private, in 
connection with its review of an identified state service. The council may 
consider: 
 
  (1) other expedient and efficient methods of acquisition; 
   
  (2) the availability of potential service providers; 
   
  (3) similar suggestions under review; and 
   
  (4) other relevant information. 
 
       
  sec.401.46. Determination to Subject an Identified State Service to 
Competition.  The council may determine that an identified state service may 
better be provided through competition with private commercial sources, other 
state agency service providers, or both. The council's determination shall be in 
writing and shall contain a brief statement of the reasons for the 
determination. A copy of the council's written determination shall be provided 
to all affected state agencies. 
 
   
  sec.401.47. Requirement that State Agencies Engage in a Competitive Process. 
 
  (a) The council may at any time require a state agency to engage in any 
competitive process developed or described by the council to subject an 
identified state service to competition with private commercial sources, with 
other state agency service providers, or both. A state agency that is required 
to engage in such a process shall comply fully with all requirements and 
instructions of the council. 
   
  (b) The council may require the commission or any other state agency to 
prepare specifications, bid invitations, requests for proposal, or any other 
documents necessary for submitting an identified state service to competition, 
and may require the commission to provide any other assistance deemed necessary 
by the council. The commission shall comply fully with all requirements and 
instructions of the council. 
 
     
  sec.401.48. Development of Competitive Process. 
 
  (a) The council may establish procedures, issue guidelines or instructions, 
and take any other steps to describe and identify the competitive process to be 
followed by a state agency in submitting an identified state service to 
competition. The written description of the competitive process may incorporate 
by reference any process or portion of a process described in another commonly 
available source. Such sources may include but shall not be limited to federal, 
state, and local statutes, rules, regulations, ordinances, procedures, and 
guidelines, as well as private commercial publications. 
   
  (b) The council may require an agency to engage in any competitive process 
reasonably calculated to ensure competition among service providers, including, 
but not limited to: 
 
  (1) competitive bidding; 
   
  (2) competitive sealed proposals; 
   
  (3) a two-step selection process such as that described in the Professional 
Services Procurement Act, Texas Civil Statutes, Article 664-4; and 
   
  (4) any other acquisition process identified by the council. 
 
       
  sec.401.49. Conflict of Interest. 
 
  (a) No person may participate in the preparation of specifications, evaluation 
of proposals, or any significant administrative function related to the 
competitive process, if the person has or may have a conflict of interest in the 
proposed or resulting contract. 
   
  (b) Without limiting the foregoing, a conflict of interest may be determined 
by the council to exist if a person participates directly or indirectly in the 
preparation of specifications, evaluation of proposals, or any significant 
administrative function related to the competitive process knowing that: 
 
  (1) the person, or any member of the person's immediate family has a 
significant financial interest in the proposed or resulting contract; 
   
  (2) the person, or any member of the person's immediate family, has a 
significant financial interest in a business or organization directly involved 
in the proposed or resulting contract; or 
   
  (3) any other person, business, or organization with whom the person or any of 
the person's immediate family is negotiating or has an arrangement concerning 
prospective employment is directly involved in the proposed or resulting 
contract. 
     
  (d) In this section: 
 
  (1) "immediate family" means a person related in the first degree of 
consanguinity or affinity to a person that has a significant financial interest 
in the proposed contract. 
   
  (2) "significant financial interest" refers to either: 
 
  (A) a personal receipt, or right to receive, money or other valuable property 
or benefits under the actual or proposed contract; 
   
  (B) the holding of a position in a business such as a principal, officer, 
director, trustee, partner, employee, or the like, or holding any position of 
management; 
   
  (C) the ownership of substantial stock, or other interest in a business. 
Substantial in this context shall not include token ownership or ownership which 
would not normally be able to influence the decisions of the business; or 
   
  (D) holding more than 10% of the outstanding debt of a person directly 
involved in the proposed or resulting contract. 
       
  (d) This section does not preclude a state agency or employees of a state 
agency from competing to provide an identified state service already being 
provided by that agency, if the agency or employees do not participate directly 
in the evaluation of proposals relating to the council's submission of such 
service to a competitive process. 
   
  (e) Without limiting the foregoing, a council member is not eligible to vote 
on the award of a contract if the agency represented by that council member has 
submitted a proposal to the council seeking such contract or if the council 
member has a conflict of interest with respect to such contract, as defined in 
this section. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on November 3, 1993. 
 TRD-9331440 
  John Pouland 
 Executive Director 
 General Services Commission 
    Effective date: November 24, 1993 
 Proposal publication date: September 3, 1993 
 For further information, please call: (512) 463-4028 
         
           
  Subchapter D. Evaluation of Proposals 
 
  1 TAC sec.401.61 and sec.401.62 
 new sections are adopted under Texas Civil Statutes, Article 601b, Article 15, 
which provide the council with the authority to promulgate rules to carry out 
the purposes of that article. 
 
 
  sec.401.61. Minimum Requirements for Proposals. Proposals must include: 
 
  (1) price; 
   
  (2) a detailed statement of the number of individuals and the salary levels of 
those individuals connected with the performance of the work, including 
employees, independent contractors or subcontractors, and others, including 
detailed information regarding any contractors or subcontractors who qualify as 
historically underutilized businesses and are listed in the directory published 
by the commission in compliance Texas Civil Statutes, Article 601b, sec.1.03; 
   
  (3) a detailed description of health care benefits to be provided for the 
individuals who will receive compensation in connection with the performance of 
the work, and the cost to the proposer of providing such benefits; 
   
  (4) a detailed description of retirement benefits to be provided for the 
individuals who will receive compensation in connection with the performance of 
the work, and the cost to the proposer of providing such benefits; 
   
  (5) a detailed description of workers' compensation insurance to be provided 
for the individuals who will receive compensation in connection with the 
performance of the work, and the cost to the proposer of providing such 
benefits; 
   
  (6) a detailed description of any employee rights or personnel policies to 
which the proposer's other employees are subject or entitled; 
   
  (7) a detailed description of all charges filed against the proposer, or any 
person or entity affiliated with the proposer, alleging discrimination or unfair 
labor practices with any state or federal agency or state or federal court in 
the five years proceeding the submission of the bid, together with a description 
of the resolution, if any, of each charge; 
   
  (8) a detailed statement certifying that the overall package of salaries and 
benefits to be provided to employees performing the identified state service 
under the proposer's contract will be reasonably comparable to the overall 
package of salaries and benefits of those state employees currently performing 
functions similar to those performed by the proposer's employees with respect to 
the identified state service, provided that the certification shall be based on 
the overall character of the salaries and benefits package and not on the 
presence, absence or level of one particular benefit or on a specific salary 
level; 
   
  (9) a detailed description of any convictions for bribery or similar offenses 
entered against the proposer or any person or entity affiliated with the 
proposer; 
   
  (10) a detailed statement explaining how the proposer will satisfy the 
specifications for the contract established by the council, and how the 
proposer's performance will be measured; and 
   
  (11) any other information requested by the council. 
 
     
  sec.401.62. Evaluation. 
 
  (a) Upon receipt of a proposal, the council may evaluate a proposal by 
considering the following factors: 
 
  (1) the information provided by the proposer as required by sec.401.61 of this 
title (relating to Evaluation); 
   
  (2) the information provided by a state agency as required by sec.401.81 of 
this title (relating to Duties of Affected State Agencies); and 
   
  (3) any other information the council deems relevant to the proposal. 
     
  (b) The council may provide further guidelines or procedures for evaluating 
proposals, and may include such guidelines or procedures in the specifications 
for a particular contract or in any related written document as the council 
deems necessary or advisable. 
   
  (c) Following its evaluation of a proposal, the council may either reject the 
proposal or direct a state agency to: 
 
  (1) accept the proposal on behalf of the state; and 
   
  (2) enter into negotiations, within the time period prescribed by the council, 
with the proposer aimed at reaching a contractual agreement to provide the 
identified state service, on terms consistent with the proposal and the 
council's actions in connection therewith. 
     
  (d) A contract executed by a state agency pursuant to subsection (c) of this 
section must be approved by the council before such contract shall be effective, 
which approval must be evidenced by the signature of an authorized member of the 
council. 
   
  (e) The council shall have the authority to negotiate contractual terms or 
enter into a contract on behalf of a state agency, or both, if the council 
determines that the state agency has not made a good faith effort to comply with 
the council's instructions under subsection (c) of this section. 
   
  (f) After all proposals have been evaluated fully and the council has made its 
determination under subsection (c) of this section regarding the course of 
action to be taken with respect to a proposal, the council shall provide to any 
party on request a brief written statement of the results of the evaluation. 
   
  (g) Any actual bidder, offeror, proposer, or contractor, or any affected 
agency, or any affected state employee who is aggrieved in connection with the 
award of a contract under this chapter may formally protest to the council. The 
council may consolidate claims by affected state employees that raise 
substantially similar issues. Protests must be in writing and received in the 
office of the clerk within five working days after the aggrieved person knows or 
should have known of the award of the contract. Copies of the protest must be 
mailed or delivered by the protesting party to the affected agency or agencies 
and all other interested parties. 
   
  (h) A protest must contain: 
 
  (1) a precise statement of the relevant facts; 
   
  (2) an identification of the issue or issues involved; 
   
  (3) argument and authorities in support of the protest; 
   
  (4) a statement that copies of the protest have been mailed or delivered to 
the affected agency or agencies and all other interested parties; and 
   
  (5) a sworn affidavit certifying that all information submitted to the council 
by or on behalf of the person filing the protest is true and correct. 
     
  (i) If the protest is not withdrawn or resolved by mutual agreement, the clerk 
shall issue a written recommendation regarding the disposition of the protest 
within five days of receipt of the protest, which recommendation shall be 
distributed to members of the council. The recommendation shall suggest that the 
protest be sustained or denied, and shall set forth the reasons for the 
recommendation. The recommendation may also specify appropriate remedial action 
including, but not limited to, entry of an order declaring the contract void. In 
addition to members of the council, the clerk shall provide a copy of the 
recommendation to the protesting party, the affected agency or agencies, and all 
other interested parties. 
   
  (j) The clerk's recommendation may be approved, rejected, or modified by the 
council. The council's disposition of the protest shall be made in open meeting 
of the council. The council's decision shall the be final administrative action 
of the council relating to such protest. 
   
  (k) Unless the council finds good cause exists for a delay or the council 
determines that a protest on appeal raises issues significant to procurement 
practices or procedures, a protest or appeal that is not filed timely will not 
be considered. 
   
  (l) In this section an: 
 
  (1) "interested party" is a person who has submitted a proposal for the 
contract involved; and 
   
  (2) "affected state agency" is an agency that provides all or a portion of the 
state service that is the subject of the proposal; and 
   
  (3) "affected state employee" is a state employee whose job is performed as 
part of an identified state service subject to a contract awarded by the 
council. 
     
  (m) If the clerk's agency has submitted a proposal for the contract involved, 
the presiding officer shall appoint another council member who is disinterested 
in the transaction to perform the review and make the recommendations required 
of the clerk under this section. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on November 3, 1993. 
 TRD-9331441 
  John Pouland 
 Executive Director 
 General Services Commission 
    Effective date: November 24, 1993 
 Proposal publication date: September 3, 1993 
 For further information, please call: (512) 463-4068 
         
           
  Subchapter E. Duties of Affected State Agencies. 
 
  1 TAC sec.401.81, sec.401.82 
 new sections are adopted under Texas Civil Statutes, Article 601b, Article 15, 
which provide the council with the authority to promulgate rules to carry out 
the purposes of that article. 
 
 
  sec.401.81. Duties of Affected State Agencies. 
 
  (a) The council may prescribe the format to be used by state agencies in 
providing any information to the council, and may require an agency to adhere to 
any other guidelines, procedures, or instructions concerning cost accounting, 
auditing, or any other pertinent activity, including but not limited to use of 
the council-approved cost methodology. 
   
  (b) The council may require an agency to conduct one or more public hearings 
on any aspect of a state service, or to prepare an agency in-house cost 
estimate, a management study or any other studies, reviews, cost estimates, or 
other information-gathering activities in connection with any aspect of a state 
service under review by the council. 
   
  (c) The council may require an agency to provide information to the council, 
perform such tasks and engage in any process deemed advisable by the council in 
connection with any effort by the council to review a state service, or to 
submit an identified state service to competition, within a time period 
prescribed by the council. 
   
  (d) Once the council has designated a state service as an identified state 
service, it may instruct an affected state agency not to enter into any contract 
that impairs the council's review and potential bidding of such service, 
including any contract directly relating to the delivery of all or a portion of 
the identified state service. The council may grant a waiver to an affected 
state agency if the agency provides a written justification that the council 
finds meritorious. 
   
  (e) A state agency shall comply fully with all requirements and instructions 
made or given by the council in the performance of its duties or the exercise of 
its powers. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on November 3, 1993. 
 TRD-9331442 
  John Pouland 
 Executive Director 
 General Services Commission 
    Effective date: November 24, 1993 
 Proposal publication date: September 3, 1993 
 For further information, please call: (512) 463-4068 
         
           
  Subchapter F. Monitoring of Services 
 
  1 TAC sec.sec.401.101-401.104 
 new sections are adopted under Texas Civil Statutes, Article 601b, Article 15, 
which provide the council with the authority to promulgate rules to carry out 
the purposes of that article. 
 
 
  sec.401.102. Minimum Monitoring Guidelines.  Guidelines for monitoring must 
include, at a minimum, provisions for: 
 
  (1) periodic reporting by the service provider regarding any performance 
standards, benchmarks, and requirements established under its contract, which 
reports shall be reviewed by the council or its staff; 
   
  (2) ensuring contract compliance (e.g., wage rates, equipment charges, rental 
rates); 
   
  (3) verifying that all services, material, labor, and equipment were actually 
received, used, or consumed in accordance with the contract provisions; 
   
  (4) initiating change orders; 
   
  (5) making on-site inspections, where possible, and reporting and comparing 
the findings with the contract provisions; 
   
  (6) surveying satisfaction of users of the identified state service; 
   
  (7) following up on complaints; 
   
  (8) analyzing cost effectiveness; and 
   
  (9) agency input. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on November 3, 1993. 
 TRD-9331443 
  John Pouland 
 Executive Director 
 General Services Commission 
    Effective date: November 24, 1993 
 Proposal publication date: September 3, 1993 
 For further information, please call: (512) 463-4068 
         
                 
  TITLE 4. AGRICULTURE 
 Part I. Texas Department of Agriculture 
  Chapter 3. Texas-Federal Inspection Service 
  
  Standardization of Citrus Fruit Act 
 
  4 TAC sec.sec.3.1-3.11 
 
  The Texas Department of Agriculture (the department) adopts the repeal of 
sec.sec.3.1-3.11, concerning Standardization of Citrus Fruit Act, without 
changes to the proposed text as published in the September 21, 1993, issue of 
the Texas Register (18 TexReg 6387). 
 These sections are being repealed because of new legislation passed by the 73rd 
Legislative Session (1993), and to enable the department to propose new sections 
consistent with current law and procedures. 
 No comments were received regarding adoption of the repeals. 
 The repeals are adopted under the Texas Agriculture Code, Chapter 91, 
Subchapters A and B, which provides the Texas Department of Agriculture with the 
authority to enter into cooperative agreements for certification of grades of 
fruits and vegetables and to establish standards for inspection of citrus fruit; 
and the Texas Agriculture Code, Chapter 93, which provides the department with 
the authority to enter into cooperative agreements for inspection of citrus 
fruit and to adopt rules relating to grading, packing and marketing of citrus 
fruit. The repeals will affect Code Chapters 91 and 93. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on October 25, 1993. 
 TRD-9331177 
  Dolores Alvarado Hibbs 
 Chief Administrative Law Judge 
 Texas Department of Agriculture 
    Effective date: November 19, 1993 
 Proposal publication date: September 21, 1993 
 For further information, please call: (512) 463-7583 
         
         
  Color-Add and Citrus Maturity Laws 
 
  4 TAC sec.sec.3.21-3.24 
 
  The Texas Department of Agriculture (the department) adopts the repeal of 
sec.sec.3.21-3.24, concerning Color-Add and Citrus Maturity Laws, without 
changes to the proposed text as published in the September 21, 1993, issue of 
the Texas Register (18 TexReg 6387). 
 These sections are being repealed because of new legislation passed by the 73rd 
Legislative Session (1993), and to enable the department to propose new sections 
consistent with current law and procedures. 
 No comments were received regarding adoption of the repeals. 
 The repeals are adopted under the Texas Agriculture Code, Chapter 94, 
Subchapter D, which provides the Texas Department of Agriculture with the 
authority to inspect citrus fruit for maturity and issue maturity stamps to 
shippers and vendors of citrus fruit. The repeals affects the Code, Chapter 94. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on October 25, 1993. 
 TRD-9331178 
  Dolores Alvarado Hibbs 
 Chief Administrative Law Judge 
 Texas Department of Agriculture 
    Effective date: November 18, 1993 
 Proposal publication date: September 21, 1993 
 For further information, please call: (512) 463-7583 
         
         
  Tomato Standardization and Inspection Act 
 
  4 TAC sec.sec.3.31-3.39 
 
  The Texas Department of Agriculture (the department) adopts the repeal of 
sec.sec.3.31-3.39, concerning Tomato Standardization and Inspection Act, without 
changes to the September 21, 1993, issue of the Texas Register (18 TexReg 6388). 
 These sections are being repealed because of new legislation passed by the 73rd 
Legislative Session (1993), and to enable the department to propose new sections 
consistent with current law and procedures. 
 No comments were received regarding adoption of the repeals. 
 The repeals are adopted under the Texas Agriculture Code, Chapter 92, which 
provides the Texas Department of Agriculture with the authority to enter into 
cooperative agreement for the inspection of grading of tomatoes and authorizes 
the department to set standards and procedures for inspection. The repeal 
affects the Code, Chapter 92. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on October 25, 1993. 
 TRD-9331278 
  Dolores Alvarado Hibbs 
 Chief Administrative Law Judge 
 Texas Department of Agriculture 
    Effective date: November 18, 1993 
 Proposal publication date: September 21, 1993 
 For further information, please call: (512) 463-7583 
         
               
  TITLE 13. CULTURAL RESOURCES 
 Part III. Texas Commission on the Arts 
  Chapter 31. Agency Procedures 
  
  13 TAC sec.31.10 
 
  The Texas Commission on the Arts adopts an amendment to  sec.31.10, with 
changes to the proposed text as published in the September 24, 1993, issue of 
the Texas Register  (18 TexReg 6505). The changes reflect changes in the 
material adopted by reference. 
 The amendment to the Financial Assistance Application Form will revise the form 
and instructions to be consistent with the Texas Arts Plan as amended September, 
1993. 
 By adopting the amendment the commission will be able to utilize federal and 
state financial assistance funds in a more effective manner, thereby allowing 
more Texas organizations, communities, and citizens to participate in agency 
programs. 
 No comments were received regarding adoption of the amendment. 
 The amendment is adopted under the Government Code, sec.444.009, which provides 
the Texas Commission on the Arts with the authority to make rules and 
regulations for its government and that of its officers and committees. 
 
 
  sec.31.10. Financial Assistance Application Form. The commission adopts by 
reference the application form and instructions for Financial Assistance as 
outlined in the Texas Arts Plan as amended September, 1993. This document is 
published by and available from the Texas Commission on the Arts, P.O. Box 
13406, Austin, Texas 78711. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on October 28, 1993. 
 TRD-9331254 
  Connie Ree Green 
 Director of Finance and Administration 
 Texas Commission on the Arts 
    Effective date: November 19, 1993 
 Proposal publication date: September 24, 1993 
 For further information, please call: (512) 463-5535, Ext. 42324 
         
           Chapter 37. Application Forms and Instructions for Financial 
Assistance 
  
  Forms and Instructions 
 
  13 TAC sec.sec.37.23, 37.24, 37.26 
 
  The Texas Commission on the Arts adopts amendments to sec.37.23, 37.24, and 
37.26, with changes to the proposed text as published in the September 24, 1993, 
issue of the Texas Register (18 TexReg 6505). The changes reflect changes in the 
material adopted by reference. 
 The amendments to the Application Forms and Instructions for the Arts In 
Education Program-Sponsors, the Texas Touring Arts Program-Performing Arts, and 
the Texas Touring Arts Program-Sponsors, will revise these application forms and 
instructions to be consistent with the Texas Arts Plan as amended September, 
1993. 
 By adopting the amendments the commission will be able to utilize federal and 
state financial assistance funds in a more effective manner, thereby allowing 
more Texas organizations, communities, and citizens to participate in agency 
programs. 
 No comments were received regarding adoption of the amendments. 
 The amendments are adopted under the Government Code, sec.444.009, which 
provides the Texas Commission on the Arts with the authority to make rules and 
regulations for its government and that of its officers and committees. 
 
 
  sec.37.23. Application Form and Instructions for Arts in Education Program-
Sponsors.  The commission adopts by reference the application form and 
instructions for the Arts in Education Program-Sponsors as outlined in the Texas 
Arts Plan as amended September, 1993. This document is published by and 
available from the Texas Commission on the Arts, P.O. Box 13406, Austin, Texas 
78711. 
 
   
  sec.37.24. Application Form and Instructions for the Texas Touring Arts 
Program -Performing Arts. The commission adopts by reference the application 
form and instructions for the Texas Touring Arts Program-Performing Arts as 
outlined in the Texas Arts Plan as amended September, 1993. This document is 
published by and available from the Texas Commission on the Arts, P.O. Box 
13406, Austin, Texas 78711. 
 
   
  sec.37.26. Application Form and Instructions for the Texas Touring Arts 
Program -Sponsors. The commission adopts by reference the application form and 
instructions for the Texas Touring Arts Program-Sponsors as outlined in the 
Texas Arts Plan as amended September, 1993. This document is published by and 
available from the Texas Commission on the Arts, P.O. Box 13406, Austin, Texas 
78711. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on October 28, 1993. 
 TRD-9331255 
  Connie Ree Green 
 Director of Finance and Administration 
 Texas Commission on the Arts 
    Effective date: November 19, 1993 
 Proposal publication date: September 24, 1993 
 For further information, please call: (512) 463-5535, Ext. 42326 
         
                 
  TITLE 16. ECONOMIC REGULATION 
 Part I. Railroad Commission of Texas 
  Chapter 3. Oil and Gas Division 
  
  Conservation Rules and Regulations 
 
  16 TAC sec.3.83 
 
  The Railroad Commission of Texas adopts new sec.3.83, concerning three-year 
inactive wells, with changes to the proposed text as published in the August 31, 
1993, issue of the Texas Register (18 TexReg 5827). 
 The section specifies which wells qualify as three-year inactive wells for the 
purpose of the ten-year severance tax exemption provided for in House Bill 1975, 
73rd Legislature, 1993. Adoption of the proposed rule will increase oil and gas 
production in Texas by providing an incentive to operators to produce wells 
which have been inactive for three years or more. 
 One commenter suggested that the prohibition against production "in more than 
one month in the three years prior to application" be more clearly defined as 31 
total days, 31 consecutive days, or a calendar month. The Commission agrees that 
clarification is needed and does not believe that an exact number of days should 
be required. Rather, the Commission has identified the period as a calendar 
month without regard to the number of days or the amount of production. 
 Another commenter suggested that "the three years prior to application" should 
be prior tot he earlier of either the date of designation by the commission or 
the date of application by the operator. The commission agrees and that change 
has been made in the rule. 
 Several commenters suggested that subsection (b)(1), which defines a "three-
year inactive well" is unclear; two types of wells listed in the definition 
appear to be the only types of wells eligible. The commission agrees and has 
clarified the definition. 
 One commenter suggested that "the three years prior to application" in 
subsection (b)(1) should be changed to "the three years prior to restoration of 
production" so that operators which failed to apply for certification prior to 
restoring production can still take advantage of the tax exemption. The 
commission disagrees. This suggested change would expand the number of wells 
beyond that defined in the underlying statute. House Bill 1975 is explicit that 
the three-year period of inactivity is the "three years prior to the date of 
application for severance tax exemption." 
 A commenter suggested that the requirement for an affidavit be dropped and 
replaced with a requirement for certification. The commission agrees and that 
change has been made in the rule. 
 One commenter suggested that subsection (d) concerning revocation of 
certification be expanded to state that not only does revocation of 
certification disallow the tax exemption for oil sold after the revocation, but 
that all taxes previously not paid due to the erroneous certification are now 
due along with any interest and penalties. The commission disagrees. This 
suggested change is not appropriate for this rule, as the collection of taxes 
owed is a matter handled by the comptroller. 
 One commenter suggested that the exemption effective date be the first day of 
the month in which certification occurs. The commission agrees with the 
suggestion, although no change in the wording of the section is necessary. The 
tax exemption applies to all production sold after the date of certification, 
which is the date production is restored. This will automatically apply to all 
production reported in the first month of production. 
 Another commenter suggested that the section should clarify when wells qualify 
for a tax exemption under this rule and when they qualify for a tax credit under 
Statewide Rule 50. The commission disagrees. No clarification is needed as the 
two rules are distinct and do not conflict. 
 The following groups or associations commented and supported adoption of the 
rule with no, or minor, changes: Exxon Company, U.S.A., Mitchell Energy 
Corporation, Permian Basin Petroleum Association, Phillips Petroleum Company, 
and Mid-Continent Oil and Gas Association. There were no comments opposing the 
proposed rule. 
 The new section is adopted pursuant to Natural Resources Code, sec.sec.81.052, 
85.046, and 85.202, which provides the commission with authority to adopt rules 
to regulate persons and their operations under the jurisdiction of the 
commission and to prevent the waste of oil in producing operations, and Tax 
Code, sec.202.056, which provides the commission with authority to adopt all 
necessary rules to administer this section. The rule implements Tax Code, 
sec.202.056, which provides for severance tax exemption for wells which have not 
produced in more than one month in the three years prior to application for the 
exemption. 
 
 
  sec.3.83. Tax Exemption for Three-Year Inactive Wells. 
 
  (a) Purpose. The purpose of this section is to provide a procedure by which an 
operator can obtain commission certification of a wellbore as a three-year 
inactive well in order to qualify for the tax exemptions provided for in Tax 
Code, sec.sec.201.053, 202.052, and 202.056. 
   
  (b) Definitions. 
 
  (1) Three-year inactive well-A well that has not produced any hydrocarbons in 
more than one calendar month in the three years prior to the date of application 
to the commission or designation by the commission under this section, whichever 
is earlier. Wells eligible under this section include those that: 
 
  (A) were previous producing or injection wells that have not been plugged or 
abandoned; 
   
  (B) have been plugged or abandoned; or 
   
  (C) are active injection wells. 
     
  (2) Well-A wellbore with single or multiple completions. 
     
  (c) Certification. 
 
  (1) The commission or its delegate may designate a well as a candidate for 
certification as a three-year inactive well without application if the well 
qualifies during the period from September 1, 1993-August 31, 1995. 
   
  (2) An application for certification as a three-year inactive well may be made 
by the owner of operator of the well from September 1, 1993-August 31, 1995. 
Applications shall be submitted to the Oil and Gas Division on a form prescribed 
by the commission according to instructions on the form. The commission may 
require the applicant to provide any relevant information needed to certify the 
well. 
   
  (3) If the commission or its delegate declines to administratively certify a 
well, the applicant may request a hearing on the application. At such hearing, 
the applicant shall have the burden of proving that the well has not produced 
any hydrocarbons in more than one calendar month in the three years prior to 
application or designation, whichever is earlier. For administratively denied 
applications involving active injection wells, the applicant shall present 
evidence showing the period of time the well has been on injection and shall 
have the burden of showing that the conversion from injection to production will 
result in increased recovery over the current enhanced recovery plan. 
     
  (d) Revocation of Certification. Certification may be revoked by the 
commission for cause which includes, but is not limited to, receipt of 
information by the commission that a certified well produced hydrocarbons in 
more than one calendar month in the three years prior to application or 
designation, whichever is earlier, or if production from other wells is credited 
to the three-year inactive well. Upon notice from the commission that the 
certification for a three-year inactive well has been revoked, the tax exemption 
obtained as a result of such certification shall not apply to oil or gas 
production from that well sold after the date of notification. 
   
  (e) Certified Wells. The Commission may not certify a well under this section 
after February 29, 1996. Certification will be issued upon the filing of a test 
report showing the well a productive capability. Production is presumed to begin 
on the well test date as reported on a Form W-2, W-10, G-1, or G-10. The ten-
year period for tax exemption begins with the date of certification and runs 
with the well. A change in ownership or operator status does not renew the 
exemption period. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on November 1, 1993. 
 TRD-9331417 
  Mary Ross McDonald 
 Assistant Director, Legal Division-Gas Utilities/LP Gas 
 Railroad Commission of Texas 
    Effective date: November 22, 1993 
 Proposal publication date: August 31, 1993 
 For further information, please call: (512) 463-6855 
         
               Chapter 5. Transportation Division 
  
  Subchapter W. Registration of Commercial Carriers 
 
  16 TAC sec.5.507 
 
  The Railroad Commission of Texas adopts an amendment to  sec.5.507, without 
changes to the proposed text as published in the August 31, 1993, issue of the 
Texas Register  (18 TexReg 5828). Senate Bill 5 of the 73rd Legislature, 1993, 
reduced the fee for international registration stamps from $20 to $10 per stamp. 
The amendment reflects the fee reduction. 
 The sole commenter opposed the rule on the grounds that the Railroad Commission 
does not have jurisdiction over insurance agents; the Railroad Commission has 
not addressed certain legislation in its amendment of the rule; the rule's fee 
requirement of $10 per trip per vehicle violates certain provisions of federal 
law pertaining to the registration of motor carriers; the examiner's finding of 
no anticipated economic cost to persons required to comply with the section as 
proposed is incorrect; and the notice of the proposed rulemaking fails to cite 
the statutory authority under which the rule is proposed. 
 The commission disagrees with the comments. Although the only change proposed 
to the rule is the reduction in the fee for international registration stamps 
from $20 to $10 per stamp, the commenter takes a much broader approach, 
challenging a large portion of sec.5.507 as beyond the commission's 
jurisdiction. The majority of the comments, therefore, are beyond the scope of 
this rulemaking. Nevertheless, in a final judgment signed on October 11, 1993, 
in the case styled International Insurance Agency, Inc. v. Railroad Commission 
of Texas, Number 92-15754 (District Court of Travis County, 331st Judicial 
District of Texas, October 11, 1993), the District Court declared that "[t]he 
Railroad Commission of Texas did not exceed its authority in promulgating 16 TAC  
sec.5.507," and that "[f]ederal law does not preempt 16 TAC  sec.5.507." 
 The amendment is adopted under Texas Civil Statues, Article 911b, sec.4(a) 
(13), which require all commercial motor vehicles to be registered with the 
commission and to pay a registration fee, and under Texas Civil Statutes, 
Article 6701d, sec.139(c), which require all commercial motor vehicles to file 
proof of insurance with the commission and to pay a fee for those filings. The 
amendment is also adopted under Senate Bill 5, Regular Session, 73rd 
Legislature, which directed the commission to lower the fee for international 
stamps to $10 per stamp. 
 The articles affected by this rule are Texas Civil Statutes, Articles 911b, 
sec.4(a)(13) and 6701d, sec.139(c). 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on November 1, 1993. 
 TRD-9331356 
  Mary Ross McDonald 
 Assistant Director, Legal Division-Gas Utilities/LP Gas 
 Railroad Commission of Texas 
    Effective date: November 22, 1993 
 Proposal publication date: August 31, 1993 
 For further information, please call: (512) 463-7095 
         
             Part IV. Texas Department of Licensing and Regulation 
  Chapter 71. Nonagricultural Public Warehouses 
  
  16 TAC sec.sec.71.1, 71.10, 71.20-71.22, 71.40, 71.60, 71.70, 71. 80, 71.81, 
71.90 
 
  The Texas Department of Licensing and Regulation adopts new sec.sec.71.1, 71. 
10, 71.20-71.22, 71.40, 71.60, 71.70, 71.80, 71.81, and 71.90, concerning 
nonagricultural public warehouses, without changes to the proposed text as 
published in the September 21, 1993, issue of the Texas Register  (18 TexReg 
6407). 
 Texas Civil Statutes, Article 9103 and Article 9100, provide the department 
with the authority to supervise and certificate nonagricultural public 
warehouses and public warehousemen. 
 No comments were received regarding adoption of the new sections. 
 The new sections are adopted under Texas Civil Statutes, Article 9103 and 
Article 9100, which provide the Texas Department of Licensing and Regulation 
with the authority to promulgate and enforce a code of rules and take all action 
necessary to assure compliance with the intent and purposes of the Act. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on October 27, 1993. 
 TRD-9331226 
  Jack W. Garison 
 Executive Director 
 Texas Department of Licensing and Regulation 
    Effective date: November 19, 1993 
 Proposal publication date: September 21, 1993 
 For further information, please call: (512) 463-3127 
         
         Chapter 72. Staff Leasing Services 
  
  16 TAC sec.sec.72.1, 72.10, 72.20-72.22, 72.60, 72.70, 72.71, 72. 80-72.83, 
72.90, 72.91 
 
  The Texas Department of Licensing and Regulation adopts new sec.sec.72.1, 72. 
10, 72.20-72.22, 72.60, 72.70, 72.71, 72.80-72.83, 72.90, and 72.91, concerning 
staff leasing service companies. Section 72.21 and sec.72.91 are adopted with 
changes to the text as proposed in the September 14, 1993, issue of the  Texas 
Register (18 TexReg 6179). Sections 72.1, 72.10, 72.20, 72. 22, 72.60, 72.70, 
72.71, 72.80-72.83, and 72.90 are adopted without changes and will not be 
republished. 
 Texas Civil Statutes, Article 9104 authorizes the department to administer the 
Staff Leasing Services Act. 
 These rules function by allowing the department to regulate and license staff 
leasing services. 
 The department held a public hearing regarding the proposed rules on September 
28, 1993. Comments were received from the Texas Chapter of the National Staff 
Leasing Association and several individuals. A summary of the comments and the 
department's response follow. 
 Overall, comments were in favor of the proposed rules. 
 Comment: sec.72.21(a) is vague because it lists falsification as a cause for 
denial. 
 Response: The department acknowledges and appreciates the comment. 
 Comment: sec.72.21(b)(3), sworn biographical history should be defined. 
 Response: The department agrees and incorporates clarifying language into the 
section. 
 Comment: sec.sec.72.80-72.83, regarding appropriateness and reasonableness of 
fees. 
 Response: Authority for fees is given in Texas Civil Statutes, Article 9104. 
 Comment: sec.72.91, the terms duties and responsibilities were not defined and 
due process would be denied. 
 Response: The department appreciates the comment and is incorporating changes 
to the section. 
 The new sections are adopted under Texas Civil Statutes, Article 9104 and 
Article 9100, which provide the Texas Department of Licensing and Regulation 
with the authority to promulgate and enforce a code of rules and take all action 
necessary to assure compliance with the intent and purposes of the Act. 
 
 
  sec.72.21. Licensing Requirement. 
 
  (a) A falsification is cause for denial and/or revocation of license. 
   
  (b) The annual license application shall: 
 
  (1) state the name, physical address, and telephone number of the place of 
business and residence of the person or individual making the application; 
   
  (2) certify that the applicant is 18 years of age or older; 
   
  (3) have attached a sworn biographical history on the form provided by the 
department of: each controlling person; each person holding 10% or more of the 
voting stock of a corporation seeking to offer staff leasing services; or any 
individual who possesses, directly or indirectly, the power to direct or cause 
the direction of the management or policies of a company seeking to offer staff 
leasing services through ownership of voting securities, by contract or any 
other means; 
   
  (4) include a disclaimer advising applicant of required background check 
through appropriate local, state, or federal law enforcement agencies; 
   
  (5) have attached completed fingerprint card provided with the application; 
and 
   
  (6) state whether the applicant is currently providing or intends to provide 
insurance and if so identify the insurer providing the insurance and the type of 
insurance being provided. 
     
  (c) The license application shall be updated within 30 days after a material 
change to any of the information in the application. Failure to provide updated 
information shall be grounds for denial and/or revocation of the license. 
 
     
  sec.72.91. Sanctions-Revocation, Suspension, or Denial Because of a Criminal 
Conviction. 
 
  (a) Pursuant to Texas Civil Statutes, Article 6252-13c, the commissioner, 
after a hearing, may suspend or revoke an existing license, or disqualify a 
person from receiving a license, because the licensee or applicant or a 
controlling person has a felony or misdemeanor conviction that directly relates 
to the duties and responsibilities involved in staff leasing services, 
including, but not limited to, conviction of offenses related to workers 
compensation, health benefit plans, unemployment taxes, payroll, or other staff 
leasing or employee related offenses. 
   
  (b) Pursuant to this Act, a license may be denied by the commissioner without 
a hearing if it determined that the applicant or a controlling person listed on 
the Staff Leasing Service application has been convicted of a felony or 
misdemeanor related to workers compensation, health benefit plans, unemployment 
taxes, payroll, or other staff leasing or employee related offenses. The 
applicant may request and will be granted a hearing if a request is made within 
20 days of written notification of denial. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on October 27, 1993. 
 TRD-9331225 
  Jack W. Garison 
 Executive Director 
 Texas Department of Licensing and Regulation 
    Effective date: November 19, 1993 
 Proposal publication date: September 14, 1993 
 For further information, please call: (512) 463-3127 
         
                 
  TITLE 22. EXAMINING BOARDS 
 Part XIV. Texas Optometry Board 
  Chapter 273. General Rules 
  
  22 TAC sec.273.9 
 
  The Texas Optometry Board adopts new sec.273.9, concerning public interest 
information, without changes to the proposed text as published in the September 
3, 1993, issue of the  Texas Register (18 TexReg 5876). 
 The rule is required in order to implement House Bill 1479, 73rd Legislature 
amending the Texas Optometry Act. It requires that the general public be 
informed of the process for filing complaints; it requires that a sign be posted 
in each optometric office or consumer pamphlets be made available to patients. 
The general public will be informed of the process to follow in making 
complaints to the Board. 
 It will require each optometrist to comply with the statutes for posting 
information to the general public of the process to following filing complaints 
with the Texas Optometry Board. 
 No comments were received regarding adoption of the new section. 
 The new section is adopted under Texas Civil Statutes, Article 4552, sec.2. 14, 
which provide the Texas Optometry Board with the authority to promulgate 
substantive and procedural rules, and to set fees. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on October 27, 1993. 
 TRD-9331160 
  Lois Ewald 
 Executive Director 
 Texas Optometry Board 
    Effective date: November 18, 1993 
 Proposal publication date: September 3, 1993 
 For further information, please call: (512) 835-1938 
         
           Part XXIII. Texas Real Estate Commission 
  Chapter 535. Provisions of the Real Estate License Act 
  
  Licenses 
 
  22 TAC sec.535.92 
 
  The Texas Real Estate Commission adopts an amendment to  sec.535.92, 
concerning renewals of real estate licenses, without changes to the proposed 
text as published in the September 21, 1993, issue of the Texas Register  (18 
TexReg 6415). The amendment clarifies that the manager of a limited liability 
company or an officer of a corporation licensed as a real estate broker must 
also hold an active real estate broker license in order for the company or 
corporation to obtain or renew the entity's license; the designated manager or 
officer would also satisfy applicable mandatory continuing education (MCE) 
requirements. 
 Adoption of the amendment is necessary to conform the section with current law. 
 No comments were received regarding adoption of the amendment. 
 The amendment is adopted under Texas Civil Statutes, Article 6573a, sec.5(h), 
which provide the Texas Real Estate Commission with the authority to make and 
enforce all rules and regulations necessary for the performance of its duties. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on September 13, 1993. 
 TRD-9331380 
  Mark A. Moseley 
 General Counsel 
 Texas Real Estate Commission 
    Effective date: November 23, 1993 
 Proposal publication date: September 21, 1993 
 For further information, please call: (512) 465-3900 
         
         
  Termination of Salesman's Association with Sponsoring Broker 
 
  22 TAC sec.535.123 
 
  The Texas Real Estate Commission adopts an amendment to  sec.535.123, 
concerning inactive broker status, without changes to the proposed text as 
published in the September 21, 1993, issue of the Texas Register (18 TexReg 
6416). The amendment permits a broker who has been on inactive status to return 
to practice once the broker has satisfied mandatory continuing education (MCE) 
requirements and has mailed or delivered to the commission an application for 
return to active status accompanied by the appropriate fee. 
 Adoption of the amendment is necessary to conform the section with current law. 
Recent amendments to Texas Civil Statutes, Article 6573a, have eliminated 
examinations and other education requirements for real estate brokers who were 
on inactive status for more than 36 months. 
 No comments were received regarding adoption of the amendment. 
 The amendment is adopted under Texas Civil Statutes, Article 6573a, sec.5(h), 
which provide the Texas Real Estate Commission with the authority to make and 
enforce all rules and regulations necessary for the performance of its duties. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on November 1, 1993. 
 TRD-9331381 
  Mark A. Moseley 
 General Counsel 
 Texas Real Estate Commission 
    Effective date: November 23, 1993 
 Proposal publication date: September 21, 1993 
 For further information, please call: (512) 465-3900 
         
         
  Nonresidents 
 
  22 TAC sec.535.132 
 
  The Texas Real Estate Commission adopts an amendment to  sec.535.132, 
concerning nonresidents' eligibility for real estate licensure, without changes 
to the proposed text as published in the September 21, 1993, issue of the Texas 
Register (18 TexReg 6416). The amendment permits nonresidents to apply for a 
real estate license if the nonresidents are licensed as a broker in another 
state or if the nonresidents were licensed in Texas as a broker or salesman 
within the year preceding the filing of the application. Limited liability 
companies created under the law of another state would also be eligible for 
licensure by complying with the provisions of the section. 
 The adoption of the amendment is necessary to conform the section with recent 
amendments to Texas Civil Statutes, Article 6573a, concerning nonresidents and 
limited liability companies. 
 No comments were received regarding adoption of the amendment. 
 The amendment is adopted under Texas Civil Statutes, Article 6573a, sec.5(h), 
which provide the Texas Real Estate Commission with the authority to make and 
enforce all rules and regulations necessary for the performance of its duties. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on November 1, 1993. 
 TRD-9331379 
  Mark A. Moseley 
 General Counsel 
 Texas Real Estate Commission 
    Effective date: November 23, 1993 
 Proposal publication date: September 21, 1993 
 For further information, please call: (512) 465-3900 
         
         
  Suspension and Revocation of Licensure 
 
  22 TAC sec.535.141 
 
  The Texas Real Estate Commission adopts an amendment to  sec.535.141, 
concerning initiation of investigations, without changes to the proposed text as 
published in the September 21, 1993, issue of the Texas Register  (18 TexReg 
6417). The amendment clarifies that the manager of a limited liability company 
licensed as a real estate broker will be treated in the same manner as the 
designated officer of a licensed corporation with regard to complaints and 
license suspensions. Managers and designated officers are responsible to the 
commission and to the public for the conduct of the company or corporation and 
any salesmen sponsored by the business entity. 
 Adoption of the amendment is necessary to conform the section with recent 
amendments to Texas Civil Statutes, Article 6573a, concerning limited liability 
companies. 
 No comments were received regarding adoption of the amendment. 
 The amendment is adopted under Texas Civil Statutes, Article 6573a, sec.5(h), 
which provide the Texas Real Estate Commission with the authority to make and 
enforce all rules and regulations necessary for the performance of its duties. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on November 1, 1993. 
 TRD-9331382 
  Mark A. Moseley 
 General Counsel 
 Texas Real Estate Commission 
    Effective date: November 23, 1993 
 Proposal publication date: September 21, 1993 
 For further information, please call: (512) 465-3900 
         
       
  22 TAC sec.535.165 
 
  The Texas Real Estate Commission adopts the repeal of sec.535.165, concerning 
disclosure of buyer or tenant agency, without changes to the proposed text as 
published in the September 14, 1993, issue of the Texas Register (18 TexReg 
6194). The disclosure form required by the section has been replaced with a 
revised disclosure form which contains information about the kinds of agency 
relationships available in a real estate transaction and permits specific agency 
relationships to be chosen by the parties involved. 
 Adoption of the repeal is necessary to eliminate conflicting agency disclosure 
requirements for real estate brokers and salesmen. 
 No comments were received regarding adoption of the repeal. 
 The repeal is adopted under Texas Civil Statutes, Article 6573a, sec.5(h), 
which provide the Texas Real Estate Commission with the authority to make and 
enforce all rules and regulations necessary for the performance of its duties. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on November 1, 1993. 
 TRD-9331383 
  Mark A. Moseley 
 General Counsel 
 Texas Real Estate Commission 
    Effective date: November 23, 1993 
 Proposal publication date: September 14, 1993 
 For further information, please call: (512) 465-3900 
         
         
  Licensed Real Estate Inspectors 
 
  22 TAC sec.535.210 
 
  The Texas Real Estate Commission adopts an amendment to  sec.535.210, 
concerning fees paid by inspectors, without changes to the proposed text as 
published in the September 21, 1993, issue of the Texas Register (18 TexReg 
6418). 
 The amendment is necessary to adjust the fees collected by the commission from 
licensed inspectors as required by Texas Civil Statutes, Article 6573a(h) (3). 
The amendment reduces the license renewal fees paid by inspectors and conforms 
the section with new statutory terms used for the inspector license issued by 
the commission. 
 One comments was received. The Texas Real Estate Commission recommended 
adoption of the amendment. The commission concurred with the comment. 
 The amendment is adopted under Texas Civil Statutes, Article 6573, sec.5(h), 
which provide the Texas Real Estate Commission with the authority to make and 
enforce all rules and regulations necessary for the performance of its duties. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on October 27, 1993. 
 TRD-9331169 
  Mark A. Moseley 
 General Counsel 
 Texas Real Estate Commission 
    Effective date: December 31, 1993 
 Proposal publication date: September 21, 1993 
 For further information, please call: (512) 465-3900 
         
       
  22 TAC sec.535.222 
 
  The Texas Real Estate Commission adopts an amendment to  sec.535.222, 
concerning standards of practice for inspectors, with changes to the proposed 
text as published in the September 21, 1993, issue of the Texas Register  (18 
TexReg 6418). 
 The amendment is necessary to clarify that an inspector's written report must 
include the inspector's name and license number. The amendment also clarifies 
that certain existing and recognized hazards must be reported if found. 
Temperature and pressure relief valve drain lines in water heaters must be 
reported if the drain lines are smaller than the valve outlets. Gas water 
heaters in garage locations must be reported if not installed a minimum of 18 
inches above the floor to avoid combustion of gasoline fumes. Ground fault 
circuit interrupter devices must be reported if improperly installed, improperly 
operating, or absent in appropriate locations. The amendment also conforms the 
section with new statutory terms used for the licenses held by inspectors. 
 One comment was received. The Texas Real Estate Inspector Committee recommended 
that language be added to specify that improper sizing of water heater drain 
lines, improper location of gas water heaters in garages, and improper 
installation, improper operation, or absence of ground fault circuit interrupter 
devices in appropriate locations be specifically reported as existing or 
recognized hazards. The commission concurred with the comment and modified the 
section accordingly. 
 The amendment is adopted under Texas Civil Statutes, Article 6573a, sec.5(h), 
which provide the Texas Real Estate Commission with the authority to make and 
enforce all rules and regulations necessary for the performance of its duties. 
 
 
  sec.535.222. Standards of Practice. 
 
  (a) Definition of terms. The following words and terms, when used in this 
section, shall have the following meanings, unless the context clearly indicates 
otherwise: 
 
  (1)-(7) (No change.) 
   
  (8) Inspector-A person licensed as a professional inspector, a person licensed 
as an apprentice inspector, or a person licensed as a real estate inspector. 
   
  (9)-(11) (No change.) 
     
  (b) Scope. The standards of inspection practice established by this section 
are the minimum levels of inspection performance required of inspectors for the 
accessible parts, components, and systems typically found in improvements to 
real property, excluding outbuildings and fences. The inspection is of 
conditions which are present and visible at the time of the inspection. All 
mechanical and electrical equipment, systems, and appliances are operated in 
normal modes and operating range at the time of the inspection. The inspector 
shall observe, render an opinion and report which of the parts, components, and 
systems present in the property and required for inspection by subsections (e)-
(g) of this section have or have not been inspected and if the parts, 
components, and systems are not functioning at the time of inspection or are in 
need of repair and report on visible existing or recognized hazards. All written 
inspection reports must contain the name and license number of the inspector who 
performed the inspection. The inspector may provide a higher level of inspection 
performance than required by this section and may inspect parts, components, and 
systems in addition to those described in this section. In the event of a 
conflict between a specific provision and a general provision, the specific 
provision shall control. These standards do not apply to the following: 
 
  (1)-(3) (No change.) 
     
  (c)-(e) (No change.) 
   
  (f) Mechanical systems. 
 
  (1) (No change.) 
   
  (2) Components for inspection. 
 
  (A) Inspection guidelines for appliances. 
 
  (i)-(xii) (No change.) 
   
  (xiii) Gas water heater. The inspector shall do the following: 
 
  (I) (No change.) 
   
  (II) observe temperature and pressure relief valve piping for proper routing, 
size (reporting as an existing or recognized hazard drain lines smaller than the 
outlet fittings), material, and termination; 
   
  (III)-(XII) (No change.) 
   
  (XIII) inspect garage units for the following: 
 
  (-a-) (No change.) 
   
  (-b-) minimum clearance of 18 inches above the garage floor, the absence of 
which shall be reported as an existing or recognized hazard. 
       
  (xiv) Electric water heater. The inspector shall do the following: 
 
  (I) (No change.) 
   
  (II) observe the temperature and pressure relief piping for proper routing, 
size (reporting as an existing or recognized hazard drain lines smaller than the 
outlet fittings), material, and termination; 
   
  (III)-(V) (No change.) 
     
  (xv)-(xviii) (No change.) 
     
  (B)-(J) (No change.) 
       
  (g) Electrical systems. 
 
  (1) (No change.) 
   
  (2) Components for inspection. 
 
  (A) (No change.) 
   
  (B) Branch circuits, connected devices, and fixtures. 
 
  (i) Inspection guidelines. The inspector shall do the following: 
 
  (I) inspect all accessible receptacles to determine whether: 
 
  (-a-)-(-f-) (No change.) 
   
  (-g-) ground fault circuit interrupter devices are properly installed in the 
bathrooms, exterior, garage, kitchens (within six feet of a sink) and in 
swimming pool locations and operate properly as shown by use of a tester 
(absence, improper installation, or improper operation of devices shall be 
reported as an existing or recognized hazard). 
     
  (II)-(X) (No change.) 
     
  (ii) (No change.) 
         
  (h) (No change.) 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on October 27, 1993. 
 TRD-9331170 
  Mark A. Moseley 
 General Counsel 
 Texas Real Estate Commission 
    Effective date: November 18, 1993 
 Proposal publication date: September 21, 1993 
 For further information, please call: (512) 465-3900 
         
               Chapter 537. Professional Agreements and Standard Contracts 
  
  Standard Contract Forms 
 
  22 TAC sec.sec.537.11, 537.13, 537.20, 537.28-537.36 
 
  The Texas Real Estate Commission adopts amendments to sec. sec.537.11, 537.13, 
537.20, 537.28-537.33, and new sec.sec.537.34-537.36, concerning standard 
contract forms, without changes to the proposed text as published in the 
September 21, 1993, issue of the  Texas Register (18 TexReg 6419). The text of 
the sections as proposed has not changed and will not be republished; however, 
the material adopted by reference reflects changes made as a result of comments 
received by the Commission. The material adopted by reference is published by 
and available from the Texas Real Estate Commission, P.O. Box 12188, Austin, 
Texas 78711-2188. 
 The amendments and new sections adopt by reference a series of standard 
earnest-money contract forms and contract addenda developed by the Texas Real 
Estate Broker-Lawyer Committee. Use of these forms will be mandatory for Texas 
real estate brokers and salesmen. Adoption of the amendments and new sections is 
necessary to ensure that contract forms are revised to meet the needs of the 
public and reduce disputes in real estate transactions. 
 The Texas Real Estate Broker-Lawyer Committee recommended a number of changes 
in the forms which were proposed for adoption by reference. The committee 
suggested that additional space be provided in paragraphs relating to the 
seller's approval of the buyer's credit, so that the seller could specify other 
documents to be provided for examination. Language was also suggested to clarify 
that the buyer pays for lender-required repairs in a sale of property in its 
present condition, commonly known as an "as is" sale; the committee recommended 
that no "as is" provision be included in form TREC Number 21-2, since government 
loan programs administered by HUD and that Department of Veterans Affairs 
generally require completion of needed repairs for loan funding. The committee 
recommended that the cost of the title policy or abstract be a seller's expense 
in the two contract forms for new home sales for consistency with similar 
provisions in the other contract forms. The committee also suggested that a 
notice be added to the standard contract forms relating to a recent amendment to 
the Texas Natural Resources code; the notice would caution sellers of land 
adjoining the tidally influenced submerged lands of the state to give the buyers 
a specific notice required by the law. The committee also recommended a number 
of nonsubstantive changes relating to terminology or phrasing or spacing of the 
forms. The commission concurred with the recommendations of the committee and 
adopted the final versions of the forms with the suggested changes. 
 The amendments and the new sections are adopted under Texas Civil Statutes, 
Article 6573a, sec.16, which provide the Texas Real Estate Commission with the 
authority to adopt rules and regulations requiring real estate brokers and 
salesmen to use contract forms which have been prepared by the Texas Real Estate 
Broker-Lawyer Committee and promulgated by the commission. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on November 1, 1993. 
 TRD-9331378 
  Mark A. Moseley 
 General Counsel 
 Texas Real Estate Commission 
    Effective date: February 1, 1994 
 Proposal publication date: September 21, 1993 
 For further information, please call: (512) 465-3900 
         
             Part XXIV. Texas Board of Veterinary Medical Examiners 
  Chapter 571. Licensing 
  
  Examinations 
 
  22 TAC sec.571.18 
 
  The Texas Board of Veterinary Medical Examiners adopts new sec.571.18, 
concerning Provisional Licensure, with changes to the proposed text as published 
in the August 17, 1993, issue of the Texas Register (18 TexReg 5464). The 
changes clarify the requirements for a provisional license. The rule as 
originally proposed only established a provisional licensure program, but did 
not provide adequate clarification of the requirements. 
 The Veterinary Licensing Act, Article 8890, sec.10(b), provides the Board with 
authority to establish a provisional licensure status. 
 The section will function by providing veterinarians not licensed in Texas the 
ability to practice until the next regularly scheduled examination for full 
licensure. At present, out-of-state practitioners are prohibited from practicing 
until completion of the full examination, which may delay authority to practice 
for up to six months. 
 No comments were received regarding adoption of the rule. 
 The new section is adopted under the Veterinary Licensing Act, Article 8890, 
sec.10(b), which provides the Texas Board of Veterinary Medical Examiners with 
the authority to grant a provisional license to an applicant who presents proof 
of a current license in another state. 
 
 
  sec.571.18. Provisional Licensure. 
 
  (a) The Board will grant a provisional license to a person who provides: 
 
  (1) proof of a current license in good standing in another state, the District 
of Columbia, or a territory of the United States that has licensing requirements 
that are substantially equivalent to the requirements of the Veterinary 
Licensing Act; 
   
  (2) proof of having passed the National Board and Clinical Competency Test 
with a minimum passing score of 75%, at a standard deviation of -1.5; 
   
  (3) proof of being sponsored by a person licensed by the Board under the 
Veterinary Licensing Act with whom the provisional licensee may practice under 
this section. If an applicant submits that obtaining a sponsor is a hardship, 
the applicant must appear before the Board at a regularly scheduled meeting to 
justify why a provisional license should be issued without a sponsor; 
   
  (4) proof of having taken and passed the Texas jurisprudence examination; and 
   
  (5) payment of the required application fee. 
     
  (b) Upon verification by the Executive Director that the requirements in 
subsection (a)(1), (2), and (3) of this section are valid, that no active 
disciplinary actions are in effect under the authority of any jurisdiction in 
which the applicant is licensed, and that the jurisprudence examination has been 
taken and passed, the Executive Director shall issue the applicant a provisional 
license. 
   
  (c) At the time application is made for a provisional license, the applicant 
must complete an application form furnished by the Board and submit supporting 
documentation as required including but not limited to: 
 
  (1) a letter of good standing from any jurisdictions where the applicant is, 
or has been, licensed; 
   
  (2) a certified copy of the veterinary school transcript with graduation date 
thereon; 
   
  (3) a certified copy of his/her birth certificate; 
   
  (4) a certified score report from the Interstate Reporting Service verifying 
the required NBE/CCT minimum score; 
   
  (5) a letter from the sponsoring licensee; and 
   
  (6) an application fee in the amount of $400. 
     
  (d) Examination. The provisional licensure jurisprudence examination will be 
conducted on an as-needed basis. A 14-day processing period will begin the date 
of receipt of an application for provisional licensure. 
   
  (e) As part of the application process by a provisional licensee for a regular 
Texas veterinary license, the Act,  sec.10(d)(2), requires the applicant to 
furnish evidence of experience. This requirement can be satisfied by providing 
the Board with two letters of reference from persons such as employers or 
associates who have had direct knowledge of the applicant's experience. 
   
  (f) A provisional license shall be valid until 14 days after the first 
available regularly scheduled licensure examination, or when the results of the 
examination are official, whichever comes first. A regular license will be 
issued, provided the applicant has passed the Texas State Board Licensing 
Examination as described in the Texas Veterinary Licensing Act, Texas Civil 
Statutes, Article 8890, sec.12(a)-(f), and has complied with sec. sec.571.1-
571.3 and 571.5-571.12 of this title (relating to Licensing). If an applicant 
does not appear at the regularly scheduled examination for full Texas licensure 
for which he/she has been processed, the applicant forfeits the provisional 
license he/she currently holds, as the Board will not extend the provisional 
license beyond the first available examination date. A Provisional License will 
not be renewed upon failure of the examination(s). 
   
  (g) The Board shall complete the processing of a provisional licensee's 
application for regular license within 180 days after the date the provisional 
license is issued. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on October 25, 1993. 
 TRD-9331123 
  Ron Allen 
 Executive Director 
 Texas Board of Veterinary Medical Examiners 
    Effective date: November 17, 1993 
 Proposal publication date: August 17, 1993 
 For further information, please call: (512) 447-1183 
         
               Chapter 575. Practice and Procedure 
  
  Practice and Procedure 
 
  22 TAC sec.575.25 
 
  The Texas Board of Veterinary Medical Examiners adopts new sec.575.25, 
concerning Recommended Schedule of Sanctions, with changes to the proposed text 
as published in the August 17, 1993, issue of the Texas Register (18 TexReg 
5468). The changes were to the first two sentences of the rule, changing 
violations to violators and the previously docketed case to any previously 
docketed case. 
 The new section was mandated by sec.14B(D) and sec.15(a), Article 8890, the 
Veterinary Licensing Act, as amended by the 73rd Legislative Session. 
 The section will function by providing disciplinary authorities with a 
recommended schedule of sanctions for guidance in ordering disciplinary action 
against a licensee. 
 There were no comments received regarding adoption of the new section. 
 The new section is adopted under the Veterinary Licensing Act, Article 8890, 
sec.14B(d) and sec.15(a), which provides the Texas Board of Veterinary Medical 
Examiners with the authority to adopt rules to be used by the State Office of 
Administration Hearings for sanctions imposed as the result of a hearing 
conducted by that office. 
 
 
  sec.575.25. Recommended Schedule of Sanctions. 
 
  (a) Class A Violations. Licensees considered as presenting imminent peril to 
the public will be considered Class "A" violators. In determining whether a 
violation is a Class A, consideration will be given to the disposition of any 
previously docketed cases, and to the combination of charges which might involve 
Class B and/or C violations. 
 
  (1) Class A violations may include, but are not limited to: 
 
  (A) conviction of a felony; 
   
  (B) gross malpractice with a pattern of acts indicating consistent 
malpractice, negligence, or incompetence in the practice of veterinary medicine; 
   
  (C)  revocation of a veterinary license in another jurisdiction; 
   
  (D)  mental incompetence found by a court of competent jurisdiction; 
   
  (E)  chronic or habitual intoxication or chemical dependency, or addiction to 
drugs; 
   
  (F) issuance of a false certificate relating to the sale for human consumption 
of animal products; 
   
  (G) presentation of dishonest or fraudulent evidence of qualifications or a 
determination of fraud or deception in the process of examination, or for the 
purpose of securing a license; 
   
  (H) engaging in veterinary practices which are violative of the Rules of 
Professional Conduct; or 
   
  (I) fraudulent issuance of health certificates, vaccination certificates, test 
charts, or other blank forms used in the practice of veterinary medicine that 
relate to the presence or absence of animal disease. 
     
  (2) In assessing sanctions and/or penalties, consideration shall be given to 
the seriousness of the violation, including the nature, circumstances, extent, 
and gravity of any prohibited acts, and the potential hazard created to the 
health, safety, or economic welfare of the public; the economic harm to property 
or the environment caused by the violation; history of previous violations; what 
is necessary to deter future violations; and any other matters that justice may 
require. 
   
  (3) Maximum Penalties. 
 
  (A)  revocation of the license; 
   
  (B) a penalty not exceeding $2,500 for each non-drug violation; 
   
  (C) a penalty not exceeding $5,000 for each violation related to a controlled 
substances; 
   
  (D) continuing education in a specified field related to the practice of 
veterinary medicine that the Board deems relevant to the violation(s). The total 
number of hours mandated are not in addition to the number of hours required to 
renew the veterinary license. 
   
  (E) quarterly Reporting certifying compliance with Orders. 
       
  (b) Class B Violations. Involves licensees who have violated rules and/or 
statutes or have committed a Class C violation within the last 36-month period. 
In determining whether a violation is a Class B, consideration will be given to 
the disposition of the previously docketed cases, and to the combination of 
charges which might involve Class A and/or C violations. 
 
  (1) Class "B" violations may include, but are not limited to: 
 
  (A)  engaging in dishonest or illegal practices in or connected with the 
practice of veterinary medicine; 
   
  (B) engaging in veterinary practices which are violative of the Rules of 
Professional Conduct; 
   
  (C)  permitting or allowing another to use his/her license or certificate to 
practice veterinary medicine; 
   
  (D) committing fraud in application or reporting of any test of animal 
disease; 
   
  (E) paying or receiving any kickback, rebate, bonus, or other remuneration for 
treating an animal or for referring a client to another provider of veterinary 
services or goods; 
   
  (F) fraudulent issuance of health certificates, vaccination certificates, test 
charts, or other blank forms used in the practice of veterinary medicine that 
relate to the presence or absence of animal disease; 
   
  (G) performing or prescribing unnecessary or unauthorized treatment; 
   
  (H) ordering prescription drugs or controlled substances for the treatment of 
an animal without first establishing a valid veterinarian patient-client 
relationship; 
   
  (I) failure to maintain equipment and business premises in a sanitary 
condition; or 
   
  (J) refusal to admit a representative of the Board to inspect the client and 
patient records and business premises of the licensee during regular business 
hours. 
     
  (2)  In assessing sanctions and/or penalties, consideration shall be given to: 
the seriousness of the violation, including the nature, circumstances, extent, 
and gravity of any prohibited acts; the hazard or potential hazard created to 
the health, safety, or economic welfare of the public; the economic harm to 
property or the environment caused by the violation; the history of previous 
violations; what is necessary to deter future violations; and any other matters 
that justice may require. 
   
  (3) Maximum Penalties. 
 
  (A)  one to ten year suspension with none, all or part probated; 
   
  (B) a penalty not exceeding $2,500 for each violation; 
   
  (C) a penalty not exceeding $5,000 for each violation related to a controlled 
substances; 
   
  (D) continuing education in a specified field related to the practice of 
veterinary medicine that the Board deems relevant to the violation(s). The total 
number of hours mandated are not in addition to the number of hours required to 
renew the veterinary license; and/or 
   
  (E) quarterly reporting certifying compliance with Board Orders. 
       
  (c) Class C Violations. Involve licensees who have violated the rules and/or 
statutes, but do not have a history of previous violations. Consideration should 
be given to the nature and severity of the violation(s). 
 
  (1) Class C violations may include, but are not limited to, minor violations 
included in Class A and/or B in which there is no hazard or potential hazard 
created to the health, safety, or economic welfare of the public and no economic 
harm to property or to the environment. 
   
  (2) In assessing sanctions, consideration should be given to the good or bad 
faith exhibited by the cited person; evidence that the violation was willful; 
extent to which the cited individual has cooperated with the investigation; and 
the extent to which the cited person has mitigated or attempted to mitigate any 
damage or injury caused. 
   
  (3) Maximum Penalties. 
 
  (A) Six months to one-year suspension with the entire period probated; or 
   
  (B) an administrative penalty not to exceed $500 for each violation. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on October 25, 1993. 
 TRD-9331120 
  Ron Allen 
 Executive Director 
 Texas Board of Veterinary Medical Examiners 
    Effective date: November 17, 1993 
 Proposal publication date: August 17, 1993 
 For further information, please call: (512) 447-1183 
         
                   Chapter 577. General Administration and Duties 
  
  Staff and Miscellaneous 
 
  22 TAC sec.577.15 
 
  The Texas Board of Veterinary Medical Examiners adopts new sec.577.15, 
concerning Fee Schedule, with changes to the proposed text as published in the 
August 17, 1993, issue of the Texas Register (18 TexReg 5474). The changes were 
to the first paragraph, excluding the Renewal Fee as a fee in effect September 
1, 1993. Charge for lists and labels was added. 
 The new section was necessary to comply with sec.19(a), (b), and (c), Article 
8890, Veterinary Licensing Act, as amended during the 73rd Legislative Session. 
 The new section provides for a published schedule of fees. 
 No comments were received regarding adoption of the new section. 
 The new section is adopted under the Veterinary Licensing Act, Article 8890, 
sec.19, which provides the Texas Board of Veterinary Medical Examiners with the 
authority to establish reasonable and necessary fees. 
 
 
  sec.577.15. Fee Schedule.  The Board shall establish fee amounts in accordance 
with the Veterinary Licensing Act, Article 8890, sec.19(a)-(c). The following 
fees are in effect September 1, 1993, with the exception of the Renewal Fee, 
which will become effective January 1, 1994. 
 
  
   
  [graphic] 
       
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on October 26, 1993. 
 TRD-9331119 
  Ron Allen 
 Executive Director 
 Texas Board of Veterinary Medical Examiners 
    Effective date: November 17, 1993 
 Proposal publication date: August 17, 1993 
 For further information, please call: (512) 447-1183 
         
           Part XXXI. Texas State Board of Examiners of Dietitians 
  Chapter 711. Dietitians 
  
  22 TAC sec.sec.711.1-711.5, 711.8, 711.9, 711. 12-711.15, 711.16-711.20 
 
  The Texas State Board of Examiners of Dietitians (board) adopts amendments 
sec.sec.711.1-711.5, 711.8, 711.9, 711. 12-711.15 and new sec.sec.711.16-711.20 
concerning licensed dietitians and provisional dietitians. Sections 711.2, 
711.3, 711.9, 711.12, 711.14, and 711. 15 and new sec.sec.711.17, 711.18, and 
711.19 are adopted with changes to the proposed text as published in the July 
23, 1993, issue of the Texas Register  (18 TexReg 4816). The amendments to sec. 
sec.711.1, 711.4, 711.5, 711. 8, and 711.13 and new sec.711.16 and sec.711.20 
are adopted without changes and will not be republished. 
 The new sections establish procedures for inactive status; mandatory continuing 
education; temporary license; informal disposition; and default orders. The 
amendments add new definitions; increase licensure fees; add consumer 
information provisions; define deceptive advertising; establish time limits for 
provisional licenses; change late renewal requirements; add criminal convictions 
related to the profession of dietetics; and replace and update existing 
language. 
 The following comments were received concerning the proposed sections. 
 COMMENT: Concerning sec.711.2(s)(2), two commenters opposed the fee increases. 
One commenter supported the fee increase to cover the increased costs of 
administering the statutory changes. 
 RESPONSE: The board's response is that fee increases are necessary to implement 
the statutory changes. 
 COMMENT: Concerning sec.711.3(d)(4)(A), a commenter suggested the first phrase 
be changed. 
 RESPONSE: The board believes the proposed wording correctly reflects that the 
guardian refers to adults or minors. A comma was deleted to clarify intent in 
the first sentence. 
 COMMENT: Concerning sec.711.3(d)(5), a commenter suggested to include public 
letters of reprimand by a private professional organization, a licensed health 
facility, or issued a civil penalty by a court. 
 RESPONSE: The board disagrees because professional organizations and facilities 
do not have to follow due process so the board would not know how accurate the 
findings are. The paragraph was reworded to clarify that licensees are subject 
to disciplinary actions arising from penalties under the Crime Victims 
Compensation Act. 
 COMMENT: Concerning sec.711.3(e)(2), a commenter suggested that the board 
require a provisional licensed dietitian to disclose his or her supervising 
licensed dietitian by name and telephone number on all advertisements including 
business cards. 
 RESPONSE: The board concurred and made the change. 
 COMMENT: Concerning sec.711.3(f)(2)(B), a commenter suggested additional 
language to track new statutory language. 
 RESPONSE: Due to an error by the Texas Register , the paragraphs were 
incorrectly published. A correction of error notice has been made and published 
in the September 10, 1993, issue of the Texas Register (18 TexReg 6129). 
 COMMENT: Concerning sec.711.5(d)(4)(E), a commenter suggested language to 
clarify the meaning. 
 RESPONSE: The board felt its intent is clearly expressed as proposed. The board 
made no changes as a result of the comment. 
 COMMENT: Concerning sec.711.9(a)(2), a commenter suggested new language to 
allow a more reasonable burden of notice by Provisional Licensed Dietitians. 
 RESPONSE: The board agrees with the comment and has made the change. 
 COMMENT: Concerning sec.711.9(d), 34 commentors recommended that the two year 
time limit for PLDs operate prospectively from the effective date of the bill. 
 RESPONSE: The board's legal counsel advised that the rules as proposed did not 
violate the Texas constitutional provision against retroactive laws as some 
commenters stated. Counsel did recommend that the board revise the proposed rule 
to count two renewals which occur after September 1, 1993, based on case law 
related to interpreting statutes that state a statute is presumed to be 
prospective in its operation unless expressly made retroactive. The board 
accepted counsel's recommendation and changed the effective date. 
 COMMENT: Concerning sec.711.12(f)(6), a commenter felt it was unreasonable to 
require licensees on active military duty outside the state to comply with 
continuing education requirements. 
 RESPONSE: The board agrees and has added provisions for hardship waivers. 
 COMMENT: Concerning sec.711.14(d)(5), a commenter suggested changing the word 
"done" to "initiated." 
 RESPONSE: The board concurs and made the change. 
 COMMENT: Concerning sec.711.14(d)(6), a commenter suggested additional wording 
to provide more flexibility in using private investigators. 
 RESPONSE: The board's response is that since the Board of Health and Texas 
Department of Health do not have policies and rules for use of private 
investigators, only a portion of the suggested changes were incorporated in the 
paragraph. 
 COMMENT: Concerning sec.711.17, a commenter requested licensees show proof of 
current registration status with the Commission on Dietetic Registration (CDR) 
to meet this requirement. CDR is a private credentialing association that has a 
five-year continuing education reporting cycle. 
 RESPONSE: The board has selected the least burdensome method available to 
ensure licensees obtain regular continuing education to maintain continuing 
competence. 
 COMMENT: Concerning sec.711.17(i), (j), and (k), a commenter recommended 
additional activities to be accepted for continuing education credit and a carry 
over provision for excess hours earned. 
 RESPONSE: The board decided to accept instruction of continuing education 
program as an acceptable continuing experience. An error was found in the 
original numbering of the subsection. Paragraphs (h)-(k) were corrected to 
paragraphs (f)-(i) and references to items in those paragraphs were corrected. 
 COMMENT: Regarding sec.711.19(o), a commenter suggested language changes to 
clarify language regarding settlement conferences. 
 RESPONSE: The purpose of this paragraph is to provide a negotiated settlement 
before a hearing. The board must not be influenced by prior knowledge of a 
matter that might come before it. Therefore, some wording changes were 
incorporated. 
 COMMENT: One commenter asked why the provisions of Section 24 of Senate Bill 
1434 were not implemented. The language regarding the official seal is 
permissive. 
 RESPONSE: The board decided use of the seal would present an undue burden for 
licensees. Most health-care facilities have rules regarding the content of 
medical records. Obtaining the official seal would also have fiscal implications 
for licensees. No changes were made as a result of the comment. 
 Minor editorial changes were made for clarification purposes. The board 
determined that sec.711.18(d)(3) was redundant and deleted the paragraph. 
 Comments were received from the Texas Dietetic Association, Representative Hugo 
Berlanga, Senators Bill Sims, Carlos Truan, and Mike Moncrief. All were opposed 
to implementing the two-year limit on provisional licensed dietitians renewals 
effective September 1, 1993. The comments were neither for or against the 
sections in their entirety; however, they raised questions and offered 
suggestions regarding changes. 
 The amendments and new sections are adopted under Texas Civil Statutes, Article 
4512h, sec.6, which provide the Texas State Board of Examiners of Dietitians 
with the authority to adopt rules concerning the regulations and licensure of 
dietitians. These sections implement the Licensed Dietitians Act, Texas Civil 
Statutes, Article 4512h. 
 
 
  sec.711.2. The Board's Operation. 
 
  (a)-(h) (No change.) 
   
  (i) Reimbursement for expense. 
 
  (1)-(3) (No change.) 
   
  (4)  Board-approved requests for board staff for out-of-state travel for board 
activities shall be approved by the deputy commissioner for management and 
administration of the department on appropriate forms. 
   
  (5) Attendance at conventions, meetings, and seminars must be clearly related 
to the performance of board duties and show a benefit to the state. 
     
  (j)-(l)  (No change.) 
   
  (m) Official records. 
 
  (1)-(2) (No change.) 
   
  (3) Official records may not be taken from board offices; however, persons may 
obtain photocopies of files upon written request and by paying the cost per page 
set by the department. Payment shall be made prior to release of the records. 
     
  (n)-(o) (No change.) 
   
  (p) Official seal. The official seal of the board shall consist of two 
concentric circles with the words "Texas State Board of Examiners of Dietitians" 
circularly arranged about the inner edge of the outermost circle, and in the 
center of the innermost circle there shall be a five-pointed star, surrounded by 
the live oak and olive branches common to official state seals. 
   
  (q) Registry. 
 
  (1)  Each year the executive secretary shall publish a registry of current 
licensees. 
   
  (2) The registry shall include, but not be limited to, the name, preferred 
mailing address, and telephone number of current licensees. 
   
  (3) An original copy of the registry will be available for inspection by 
licensees and members of the public in the office of the executive secretary. 
Upon receipt of a written request and payment of a fee, the executive secretary 
shall furnish at cost a copy to a licensee or member of the public. The cost of 
a copy of the registry or any portion thereof shall be in accordance with the 
cost guidelines of the department. 
     
  (r)  Consumer information. The executive secretary with the approval of the 
board shall publish information of consumer interest which describes the 
regulatory functions of the board, board procedures to handle and resolve 
consumer complaints, and the profession of dietetics. 
   
  (s) Fees. 
 
  (1) The board has established reasonable and necessary fees to provide the 
funds to support the activities listed in paragraphs (2) of this subsection and 
other activities required by the Licensed Dietitian Act (Act). 
   
  (2) Schedule of fees for licensure as a dietitian, temporary licensed 
dietitian, and a provisional licensed dietitian: 
 
  (A) application (includes initial license) fee-$54; 
   
  (B) license fee for upgrade of provisional licensed dietitian -$20; 
   
  (C) renewal fee-$45; 
   
  (D)  late renewal fee: 
 
  (i) $82.50 when renewed on or within 90 days of expiration; or 
   
  (ii) $90 when renewed later than 90 days but less than one year after 
expiration; 
     
  (E) license certificate and identification card replacement fee--$20; 
   
  (F) examination fee - $75; 
   
  (G) application processing fee for preplanned professional experience 
approval--$500; and 
   
  (H) inactive status fee - $20. 
     
  (3) An applicant whose check for the application fee is returned marked 
insufficient funds, account closed or payment stopped shall be allowed to 
reinstate the application by remitting to the board a money order or check for 
guaranteed funds within 30 days of the date of receipt of the board's notice. An 
application will be considered incomplete until the fee has been received and 
cleared through the appropriate financial institution. 
   
  (4) An approved applicant whose check for the license fee is returned marked 
insufficient funds, account closed or payment stopped shall remit to the board a 
money order or check for guaranteed fund within 30 days of the date of receipt 
of the board's notice. Otherwise, the application and the approval shall be 
invalid. 
   
  (5) A license whose check for the renewal fee is returned marked insufficient 
funds, account closed or payment stopped shall remit to the board a money order 
or check for guaranteed funds within 30 days of the date of receipt of the 
board's notice. Otherwise, the license shall not be renewed. If a renewal card 
has already been issued, it shall be invalid. 
   
  (6) Fees paid to the board by applicants are not refundable. 
   
  (7)  Any remittance submitted to the board in payment of a required fee must 
be in the form of a personal check, certified check, or money order. 
   
  (8)  The board shall make periodic reviews of its fee schedule and make any 
adjustments necessary to provide funds to meet its expenses without creating an 
unnecessary surplus. Such adjustments shall be through rule amendments. 
     
  (t) Petition for adoption of a rule. 
 
  (1) Purpose. The rule's purpose is to delineate the board's procedures for the 
submission, consideration, and disposition of a petition to the board to adopt a 
rule. 
   
  (2) Submission of the petition. 
 
  (A) Any person may petition the board to adopt a rule. 
   
  (B) The petition shall be in writing, shall contain the petitioner's name and 
address, and shall describe the rule and the reason for it; however, if the 
executive secretary determines that further information is necessary to assist 
the board in reaching a decision, the executive secretary may require that the 
petitioner resubmit the petition and that it contain: 
 
  (i) a brief explanation of the proposed rule; 
   
  (ii) the text of the proposed rule prepared in a manner to indicate the words 
to be added or deleted from the current text, if any; 
   
  (iii) a statement of the statutory or other authority under which the rule is 
to be promulgated; and 
   
  (iv) the public benefits anticipated as a result of adopting the rule or the 
anticipated injury or inequity which would result from the failure to adopt the 
proposed rule. 
     
  (C) The board may deny a petition which does not contain the information in 
subparagraph (B) of this paragraph or the information in clauses (i)-(iv) of 
subparagraph (B) of this paragraph if the executive secretary determines that 
the latter is necessary. 
   
  (D) The petition shall be mailed or delivered to the executive secretary, 
Texas State Board of Examiners of Dietitians, 1100 West 49th Street, Austin, 
Texas 78756-3183. 
     
  (3) Consideration and disposition of the petition. 
 
  (A) The executive secretary shall submit a completed petition to the board for 
its consideration. 
   
  (B) Within 60 days after receipt of the petition by the executive secretary, 
or within 60 days after receipt of a resubmitted petition in accordance with 
paragraph (2)(B)(i)-(iv) of this subsection, the board shall either: 
 
  (i) deny the petition; or 
   
  (ii)  initiate rule-making procedures by referring the petition to the Rules 
Committee for its recommendation. The committee shall report its recommendations 
to the board at its next regular meeting. 
     
  (C) The board may deny parts of the petition and/or institute rule making 
procedures on parts of the petition. 
   
  (D) If the board denies the petition, the executive secretary shall give the 
petitioner written notice of the board's denial, including the reason(s) for the 
denial. 
   
  (E) If the board initiates rule-making procedures in accordance with the 
Administrative Procedure Act (APA), sec.5, the version of the rule which the 
board proposes may differ from the version proposed by the petitioner. 
     
  (4)  Subsequent petitions to adopt the same or similar rules. All initial 
petitions for the adoption of a rule shall be presented to and decided by the 
board in accordance with the provisions of paragraphs (2) and (3) of this 
subsection. The board may refuse to consider any subsequent petition for the 
adoption of the same or similar rule submitted within six months after the date 
of the initial petition. 
 
       
  sec.711.3. The Profession of Dietetics. 
 
  (a)-(c) (No change.) 
   
  (d) Code of ethics. These rules shall constitute a code of ethics as 
authorized by the Licensed Dietitian Act (Act), sec.6(b)(1). 
 
  (1)-(2)  (No change.) 
   
  (3) Supervision of provisional licensed dietitian. A licensed dietitian shall 
adequately supervise a provisional licensed dietitian or a temporary licensed 
dietitian for whom the licensee has assumed supervisory responsibility. 
   
  (4) Billing information required; prohibited practices. 
 
  (A) On the written request of a client, a client's guardian, or a client's 
parent if the client is a minor, a licensee shall provide, in plain language, a 
written explanation of the charges for client nutritional services previously 
made on a bill or statement for the client. This requirement applies even if the 
charges are to be paid by a third party. 
   
  (B) A licensee may not persistently or flagrantly overcharge or overtreat a 
client. 
     
  (5) Sanctions. A licensee shall be subject to disciplinary action by the board 
if under the Crime Victims Compensation Act, Texas Civil Statutes, Article 8309-
1 the licensee is issued a public letter of reprimand, is assessed a civil 
penalty by a court, or has an administrative penalty imposed by the attorney 
general's office. 
     
  (e) Disclosure. 
 
  (1) A licensee shall make a reasonable attempt to notify each client of the 
name, mailing address, and telephone number of the board for the purpose of 
directing complaints to the board by providing notification: 
 
  (A) on each written contract for services of a licensee; 
   
  (B)  on a sign prominently displayed in the primary place of business of each 
licensee; or 
   
  (C) in a bill for service provided by a licensee to a client or third party. 
     
  (2) A provisional licensed dietitian must include the name and telephone 
number of his or her supervisor in all advertising and announcements of services 
including business cards and applications for employment. 
     
  (f) Unlawful false, misleading, or deceptive advertising. 
 
  (1) A licensee shall not use advertising that is false, misleading, or 
deceptive or that is not readily subject to verification. 
   
  (2) False, misleading, or deceptive advertising or advertising that is not 
readily subject to verification includes advertising that: 
 
  (A) makes a material misrepresentation of fact or omits a fact necessary to 
make the statement as a whole not materially misleading; 
   
  (B)  makes a representation likely to create an unjustified expectation about 
the results of a health care service or procedure; 
   
  (C) compares a health care professional's services with another health care 
professional's services unless the comparison can be factually substantiated; 
   
  (D)  contains a testimonial; 
   
  (E) causes confusion or misunderstanding as to the credentials, education, or 
licensure of a health care professional; 
   
  (F) advertises or represents that health care insurance deductibles or 
copayments may be waived or are not applicable to health care services to be 
provided if the deductibles or copayments are required; 
   
  (G)  advertises or represents that the benefits of a health benefit plan will 
be accepted as full payment when deductibles or copayments are required; 
   
  (H) makes a representation that is designed to take advantage of the fears or 
emotions of a particularly susceptible type of patient; or 
   
  (I)  advertises or represents in the use of a professional name a title or 
professional identification that is expressly or commonly reserved to or used by 
another profession or professional. 
     
  (3) A "health care professional" includes a licensed dietitian, provisional 
licensed dietitian, temporary licensed dietitian, or any other person licensed, 
certified, or registered by the state in a health-related profession. 
 
       
  sec.711.9. Provisional Licensed Dietitians. 
 
  (a) Supervision. The purpose of this section is to set out the nature and the 
scope of the supervision provided for provisional licensed dietitians. 
 
  (1) (No change.) 
   
  (2) Termination. The supervising licensed dietitian must submit a written 
notification of termination of supervision to the board and the supervisee 
within 14 days of when supervision has ceased. The provisional licensed 
dietitian shall make a good faith effort to ensure that the supervising licensed 
dietitian submits the appropriate notification. The board notification of 
termination of supervision shall include: 
 
  (A)-(E) (No change.) 
     
  (3)-(5) (No change.) 
     
  (b)-(c) (No change.) 
   
  (d)  Time limits. A provisional license is valid for one year from the date it 
is issued and may be renewed annually not more than twice after September 1, 
1993, by the procedures set out at sec.711.12 of this title (relating to License 
Renewal). 
 
     
  sec.711.12. License Renewal. 
 
  (a) (No change.) 
   
  (b)  General. 
 
  (1)-(3) (No change.) 
   
  (4) Each licensee is responsible for renewing the license before the 
expiration date and shall not be excused from paying additional fees or 
penalties. Failure to receive notification from the executive secretary prior to 
the expiration date of the license shall not excuse failure to file for renewal 
or late renewal. 
   
  (5) -(7) (No change.) 
   
  (8) A licensee must comply with applicable continuing education requirements 
in order to renew a license including the audit process described in sec.711.17 
of this title (relating to Continuing Education Requirements). 
     
  (c) (No change.) 
   
  (d) Late renewal requirements. 
 
  (1) The executive secretary shall inform a person who has not renewed a 
license after a period of more than 30 days after the expiration of the license 
of the amount of the fee required for renewal and the date the license expired. 
   
  (2) A person whose license has expired for not more than one year may renew 
the license by submitting to the executive secretary: the license renewal form 
and appropriate late renewal fee. The renewal is effective if it is mailed to 
the executive secretary not more than one year after the expiration date of the 
license. The postmark date shall be considered as the date of mailing. 
   
  (3) A person whose license has been expired one year or more may not renew the 
license. The person may obtain a new license by complying with the current 
requirements and procedures for obtaining an original license. 
     
  (e) Expiration of license. 
 
  (1) (No change.) 
   
  (2) A person who fails to renew a license after one year is required to 
surrender the license certificate and license identification card to the board. 
     
  (f) Active duty. If a licensee fails to timely renew his or her license on or 
after August 1, 1990, because the licensee is or was on active duty with the 
armed forces of the United States of America serving outside the State of Texas, 
the licensee may renew the license in accordance with this subsection. 
 
  (1)-(5) (No change.) 
   
  (6) A licensee renewing under this subsection shall be required to submit the 
same amount of continuing education hours as required for regular renewal unless 
the licensee demonstrates to the satisfaction of the board that a hardship 
existed which prevented the licensee from obtaining the continuing education 
hours. Hardships may include medical reasons, combat duty, or assignment to a 
location where continuing education activities were not available. 
 
       
  sec.711.14. Violations, Complaints, and Subsequent Board Actions. 
 
  (a)-(c) (No change.) 
   
  (d) Investigation of complaints. 
 
  (1)-(3) (No change.) 
   
  (4) The executive secretary shall determine whether the complaint fits within 
the category of a serious complaint affecting health or safety of clients or 
other persons. 
   
  (5)  If an investigation is initiated, the investigator shall always attempt 
to contact the complainant to discuss the complaint. 
   
  (6) The board shall use a private investigator only if the department's 
investigators available to the board have a conflict of interest or are not 
available to respond to a complaint in a timely manner. 
     
  (e)-(f) (No change.) 
   
  (g)  Formal hearings. 
 
  (1) (No change.) 
   
  (2) To initiate formal hearing procedures, the executive secretary shall give 
the applicant or licensee written notice of the opportunity for hearing. The 
notice shall state the basis for the proposed action. Within ten days after 
receipt of the notice, the applicant or licensee shall give written notice to 
the executive secretary that the applicant or licensee either waives the hearing 
or wants the hearing. 
 
  (A) If the person fails to respond within ten days after receipt of the notice 
of opportunity, or if the person notifies the executive secretary that the 
hearing be waived, the person is deemed to have waived the hearing. If the 
hearing has been waived, the executive secretary may recommend to the board that 
the license be suspended or revoked, the license suspension be probated, the 
licensee renewal be denied, or the application be denied. The board may take the 
final action which the board deems appropriate. 
   
  (B)  If the person requests a hearing within ten days after receiving the 
notice of opportunity for hearing, the executive secretary shall request the 
department's office of general counsel to initiate formal hearing procedures. 
     
  (3) When a formal hearing is conducted, the board, meeting in quorum and by a 
majority of those present and voting, will determine the necessary final action 
after receiving the hearing officer's recommendation. The complaint committee 
members shall not participate in the final action. 
     
  (h)-(i) (No change.) 
   
  (j) Monitoring of licensees. The executive secretary shall monitor each 
licensee against whom a board order is issued to ascertain that the licensee 
performs the required acts. 
 
     
  sec.711.15. Formal Hearings. 
 
  (a) Purpose. This section covers the formal hearing procedures and practices 
that will be used by the board in handling suspensions, revocations of licenses, 
denial of licenses, probating a license suspension, and reprimanding a licensee. 
The intended effect of these procedures is to implement the contested case 
provisions of the Administrative Procedure Act (APA) and the relevant sections 
of the Licensed Dietitian Act (Act) and to make the public aware of the 
procedures and practices. 
   
  (b)  General provisions. 
 
  (1) The board on its own motion or the executive secretary may initiate a 
formal hearing. The hearing shall be conducted in accordance with the provisions 
in this section. In the event of conflict between APA or other state statutes 
and these sections, APA or other state statutes will prevail over these 
sections. 
   
  (2) All formal hearings unless otherwise determined by the hearing examiner or 
upon agreement of the parties shall be held in Austin. 
   
  (3) The appropriate committee may determine whether a hearing will be held 
before a hearing examiner or the board. If a hearing examiner is not utilized, 
the board shall conduct the formal hearing and contested case proceedings, and 
all references in this chapter to the hearing examiner shall be references to 
the board. 
     
  (c)  Notice requirements. 
 
  (1) The hearing examiner shall give notice of the hearing according to the 
notice requirements of APA. 
   
  (2) If a party fails to appear or be represented at a hearing after receiving 
notice, the hearing examiner may proceed with the hearing or take whatever 
action is fair and appropriate under the circumstances. 
   
  (3) All parties shall timely notify the hearing examiner of any changes in 
their mailing addresses. 
     
  (d) Parties to the hearing. 
 
  (1) The parties to hearing shall be the applicant or licensee and the 
complaints committee or executive secretary, as appropriate. 
   
  (2) A party has the privilege to participate fully in any prehearing and 
hearing, to appeal as provided by law, and to perform any and all duties and 
privileges provided by APA and other applicable laws. 
   
  (3) A party may appear personally or be represented by counsel or both. 
     
  (e) Subpoena requirements. 
 
  (1) On the hearing examiner's own motion or on the written request of any 
party to the hearing, the hearing examiner shall issue a subpoena addressed to 
the appropriate sheriff or constable to require the attendance of witnesses or 
the production of documents at the hearing. 
   
  (2) All procedures relating to subpoenas shall be in accordance with APA. 
   
  (3) A party or witness may seek to quash the subpoena or move for a protective 
order as provided in Texas Rules of Civil Procedures. 
   
  (4) Witnesses may be subpoenaed from any place in the State of Texas. 
   
  (5) Documents include books, papers, accounts, and similar materials or 
objects. 
   
  (6) A witness or deponent described in APA, sec.14(d)(1), will be paid for 
mileage, transportation, meals, and lodging expenses and a fee of $10 a day. 
     
  (f) Depositions. The taking and use of depositions in any contested case 
proceeding shall be governed by APA, sec.14. 
   
  (g) Prehearing conferences. 
 
  (1) In a contested case, the hearing examiner, on his own motion or the motion 
of a party, may direct the parties to appear at a specified time and place for a 
conference prior to the hearing for the purpose of: 
 
  (A)-(H) (No change.) 
     
  (2) The hearing examiner will conduct the prehearing conference in such manner 
and with the necessary authority to expedite the conference while reaching a 
fair, just, and equitable determination of any matters or issues being 
considered. 
   
  (3) The hearing examiner shall have the minutes of the conference recorded in 
an appropriate manner and shall issue whatever orders are necessary covering the 
said matters or issues. 
   
  (4) Any action taken at the prehearing conference may be reduced to writing, 
signed by the parties, and made a part of the record. 
     
  (h)  The hearing procedures. 
 
  (1) (No change.) 
   
  (2) Order of presentation. 
 
  (A) After making the necessary introductory and explanatory remarks, the 
hearing examiner will begin receiving testimony and evidence from the witnesses. 
   
  (B)-(E) (No change.) 
   
  (F) The hearing examiner, at the hearing examiner's discretion, may allow 
final arguments or take the case under advisement, note the time, and close the 
hearing. For sufficient cause, the hearing examiner may hold the record open for 
a stated number of days for the purpose of receiving additional evidence into 
the record. 
     
  (3) (No change.) 
   
  (4) Conduct and decorum during the hearing. Every party, witness, attorney, 
representative, or other person shall exhibit in all hearings proper dignity, 
courtesy, and respect for the hearing examiner and all other persons 
participating in or observing the hearing. The hearing examiner is authorized to 
take what ever action the hearing examiner deems necessary and appropriate to 
maintain the proper level of decorum and conduct, including, but not limited to, 
recessing the hearing to be reconvened at another time or place or excluding 
from the hearing any party, witness, attorney, representative, or other person 
for such period and upon such conditions as the hearing examiner deems fair and 
just. 
   
  (5)  The hearing record. The hearing record will include: 
 
  (A) all pleadings, motions, and intermediate rulings; 
   
  (B) evidence received or considered; 
   
  (C) a statement of matters officially noticed; 
   
  (D) questions and offers of proof, objections, and rulings of them; 
   
  (E) proposed findings and exceptions; 
   
  (F) any decision, opinion, or report by the hearing examiner; and 
   
  (G) all staff memoranda or data submitted to or considered by the hearing 
examiner or members of the board who are involved in making the decision. 
     
  (6)  Recording the hearing. 
 
  (A) The hearing examiner shall keep either a stenographic or magnetic tape 
record of the hearing proceeding. A court reporter may be present to record the 
hearing. 
   
  (B) In those cases when a magnetic tape recording of the formal hearing is 
made, the board shall make such recording available to any party requesting 
permission to hear or, with appropriate protective measures, allow such 
recording to duplicate. 
     
  (7) Assessing the cost of a court reporter and the record of the hearing. 
 
  (A) In the event a court reporter is utilized in the making of the record of 
the proceedings, the board shall bear the cost of the per diem or other 
appearance fee for such reporter. 
   
  (B) The board shall prepare, or order the preparation of, a transcript 
(statement of facts) of the hearing upon the written request of any party. The 
board may pay the cost of the transcript or assess the cost to one or more 
parties. 
   
  (C) In the event a final decision of the board is appealed to the district 
court wherein the board is required to transmit to the reviewing court a copy of 
the record of the hearing proceeding, or any part thereof, the board may require 
the appealing party to pay all or part of the cost of preparation of the 
original or a certified copy of the record of the board proceedings that is 
required to be transmitted to the reviewing court. 
     
  (8) Rules of evidence. The hearing examiner will apply the rules of evidence 
under APA, sec.14(a), and also the following rules. 
 
  (A) The hearing examiner may consolidate the testimony of parties or persons 
if the evidence can be effectively consolidated into one document or the 
testimony of one witness. The standard by which the hearing examiner should 
judge this consolidation is whether each party or person can offer unique or new 
evidence that has not been previously introduced. Any party, under oath, may 
make an offer of proof of the testimony or evidence excluded through 
consolidating by dictating into the record or submitting in writing the 
substance of the proposed testimony prior to the conclusion of the hearing. 
   
  (B) Documentary evidence should be presented in its original form but if the 
original is not readily available, documentary evidence may be received in the 
form of copies or excerpts. On request, parties shall be given an opportunity to 
compare the copy with the original. When numerous documents are offered, the 
hearing examiner may limit those admitted to a number which are typical and 
representative, and may, at the hearing examiner's discretion, require the 
abstracting of the relevant data from the documents and presentation of the 
abstracts in the form of exhibits; provided, however, that before making such 
requirement, the hearing examiner shall require that all parties of record be 
given the right to examine the documents from which such abstracts were made. 
Any party may make an offer of proof of the documents which are excluded by a 
hearing examiner's decision to remove only typical or representative documents. 
   
  (C)  Exhibits shall be as follows. 
 
  (i) Exhibits of documentary character shall be limited to facts material and 
relevant to the issues involved in a particular proceeding, and the parties 
shall make a reasonable effort to introduce exhibits which will not unduly 
encumber the files and records of the board. The hearing examiner may require 
that exhibits of a documentary character not exceed 8 1/2 by 14 inches unless 
they are folded to the required size. Maps and drawings which are offered as 
exhibits shall be folded so as not excluded. 
   
  (ii) The original of each exhibit offered should be tendered to the hearing 
examiner or a designee for identification and shall be offered to the parties 
for their inspection prior to offering or receiving the same into evidence. 
   
  (iii) In the event an exhibit has been identified, objected to, and excluded, 
it shall be given an exhibit number for purposes of identification and shall be 
included in the record under seal. 
   
  (iv) Unless specifically directed by the hearing examiner, no exhibit will be 
permitted to be filed in any proceeding after the conclusion of the hearing 
except in a reopened hearing or a rehearing. 
     
  (D) When a proceeding will be expedited and the interests of the parties will 
not be prejudiced substantially, evidence may be received in written form. The 
prepared 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 being sworn and identifying the same as 
a true and accurate record of what the testimony would be if the witness were to 
testify orally. The witness shall be subject to clarifying questions and to 
cross-examination and the prepared testimony shall be subject to a motion to 
strike either in whole or in part. 
   
  (E) When testimony is excluded by the hearing examiner, the party offering 
such evidence shall be permitted to make an offer of proof by dictating into the 
record 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 review. The hearing examiner may ask such questions of 
the witness as the hearing examiner deems necessary to satisfy the hearing 
examiner that the witness would testify as represented in the offer of proof. An 
alleged error in sustaining any objections to questions asked on cross-
examination may be preserved without making an offer of proof. 
   
  (F) Official notice by the hearing examiner or the board shall be governed by 
APA, sec.14(q). Further, official notice may be taken of any statute, ordinance, 
or duly promulgated and adopted rules or regulations of any governmental agency. 
The hearing examiner shall indicate during the course of a hearing that 
information of which the hearing examiner will take official notice. When a 
hearing examiner's findings are based upon official notice as a material fact 
not appearing in the evidence of record, the hearing examiner shall set forth in 
the proposal for decision those items with sufficient particularity so as to 
advise the parties of the matters which have been officially noticed. The 
parties shall have the opportunity to show to the contrary through the filing of 
exceptions to the hearing examiner's proposal for decision. 
     
  (9) Disposition of case. Unless precluded by law, informal disposition may be 
made of any contested case by agreed settlement order or default order. 
   
  (10) Agreements in writing. No stipulation or agreement between the parties 
with regard to any matter involved in any proceeding shall be enforced unless it 
shall have been reduced to writing and signed by the parties or their authorized 
representatives, dictated into the record during the course of a hearing, or 
incorporated in an order bearing their written approval. This rule does not 
limit a party's ability to waive, modify, or stipulate away any right or 
privilege afforded by these sections. 
     
  (i) Action after the hearing. 
 
  (1) Reopening of hearing for new evidence. 
 
  (A)-(B) (No change.) 
   
  (C) Notice of any reopened hearing shall be sufficient by notifying all 
parties of same, by certified mail, return receipt requested. 
     
  (2) (No change.) 
   
  (3) Filing. At any time after the record has been closed in a contested case, 
and prior to the administrative decision becoming final in such case, all 
briefs, exceptions, written objections, motions (including motion for 
rehearing), replies to the foregoing, and all other written documents shall be 
filed with the hearing examiner. The party filing such instrument shall provide 
copies of the same to all other parties of record by first class United States 
mail or personal service and certify, in writing thereon, the names and 
addresses of the parties to whom copies have been furnished, as well as the date 
and manner of service. 
   
  (4) Final orders or decisions. 
 
  (A) The final order or decision will be rendered by the board. The board is 
not required to adopt the recommendation of a hearing examiner and may take 
action as it deems appropriate and lawful. 
   
  (B) All final orders or decisions shall be in writing and shall set forth the 
findings of fact and conclusions required by law. 
   
  (C) All final orders shall be signed by the executive secretary and the 
chairman of the board; however, interim orders may be issued by the hearing 
examiner in accordance with the order of appointment. 
   
  (D) (No change.) 
     
  (5)  Motion for rehearing. A motion for rehearing shall be governed by APA, 
sec.16, or other pertinent statute and shall be addressed to the board and filed 
with the hearing examiner. 
   
  (6) (No change.) 
 
       
  sec.711.17. Continuing Education Requirements. 
 
  (a) The purpose of this section is to establish the continuing education 
requirements a licensee shall meet to maintain licensure. The requirements are 
intended to maintain and improve the quality of services provided to the public 
by licensed dietitians and provisional licensed dietitians. Continuing education 
credit includes programs beyond the basic preparation which are designed to 
promote and enrich knowledge, improve skills, and develop attitudes for the 
enhancement of licensed dietitians and provisionally licensed dietitians, thus 
improving nutritional care to the public. 
   
  (b) Proof of having earned a minimum of six clock hours of continuing 
education credit shall be required at the time of renewal of each license after 
September 1, 1994. 
 
  (1)  The hours must have been completed within 12 months prior to the date of 
expiration of the license. 
   
  (2) The hours must be offered or approved by the Commission on Dietetic 
Registration or its agents or a regionally accredited college or university. 
     
  (c) The licensee shall be responsible for maintaining a record of his or her 
continuing education experiences. The certificates, diplomas, or other 
documentation verifying earning of continuing education hours are not to be 
forwarded to the board at the time of renewal unless the licensee has been 
selected for audit by the board. Only the completed continuing education report 
form should accompany the renewal form and fee if the licensee has not been 
selected for audit. 
   
  (d) The audit process shall be as follows. 
 
  (1) The board shall select for audit a random sample of licensees for each 
renewal month. Audit forms shall be sent to the selected licensees at the time 
the renewal notice is mailed. 
   
  (2) All licensees selected for audit will furnish documentation such as 
official transcripts, certificates, diplomas, receipts, agendas, programs, or an 
affidavit identifying the continuing education experience satisfactory to the 
board, to verify proof of having earned the continuing education hours listed on 
the continuing education report form. The documentation must be provided at the 
time the renewal form is returned to the board. 
   
  (3) Failure to timely furnish this information or knowingly providing false 
information during the audit process or the renewal process are grounds for 
disciplinary action against the licensee. 
     
  (e) A licensee who has failed to complete the requirements for continuing 
education may be granted a 90-day extension to the continuing education period 
by the executive secretary. 
 
  (1) The request for an extension of the continuing education period must be 
made in writing prior to the expiration of the license. 
   
  (2) A subsequent continuing education period shall end one year from the date 
the previous continuing education period expired, not the date of the end of the 
extension period. 
   
  (3) Credit earned during the extension period may only be applied to the 
previous continuing education period. 
   
  (4) A person who fails to complete continuing education requirements for 
renewal holds an expired license and may not use the titles "licensed dietitian" 
or "provisional licensed dietitian" during the extension period. 
   
  (5) A license may be renewed upon completion of the required continuing 
education within the given extension period, submission of the license renewal 
form, and payment of the applicable late renewal fee. 
     
  (f)  A person who fails to complete continuing education requirements for 
renewal and failed to request an extension to the continuing education period 
may not renew the license. The person may obtain a new license by complying with 
the current requirements and procedures for obtaining a license. 
   
  (g)  Continuing education undertaken by a licensee for renewal shall be 
acceptable if the experience falls in one or more of the following categories: 
 
  (1) academic courses related to dietetics; 
   
  (2) clinical courses related to dietetics; 
   
  (3) in-service educational programs, training programs, institutes, seminars, 
workshops and conferences in dietetics; 
   
  (4) self-study modules; or 
   
  (5) instructing or presenting continuing education programs or activities that 
were offered or approved by the Commission on Dietetic Registration or its 
agents. Multiple presentations of the same programs only count once. 
     
  (h) Activities unacceptable as continuing education for which the board may 
not grant continuing education credit are: 
 
  (1) education incidental to the regular professional activities of a licensee 
such as learning occurring from experience or research; 
   
  (2) professional organization activity such as serving on committees or 
councils or as an officer; 
   
  (3) any continuing education activity completed before or after the period of 
time described in subsection (b)(1) or (e) of this section; 
   
  (4)  self-assessment questionnaire or activities; 
   
  (5) activities described in subsection (g) of this section which have been 
completed more than once during the continuing education period; or 
   
  (6) performance of duties that are routine job duties or requirements. 
     
  (i) Continuing education experiences shall be credited as follows. 
 
  (1) Completion of course work at or through an accredited college or 
university shall be credited for each semester hour on the basis of two clock 
hours of credit for each semester hour successfully completed for credit or 
audit as evidenced by a certificate of successful completion or official 
transcript. 
   
  (2) An activity which meets the criteria of subsection (g)(2) or (3) of this 
section shall be credited on a one-for-one basis with one clock hour credit for 
each clock hour spent in the continuing education experience. 
 
       
  sec.711.18. Temporary License. 
 
  (a) Purpose. The purpose of this section is to set out the application 
procedures for a temporary license. 
   
  (b) Requirements. An applicant for a temporary license shall submit: 
 
  (1) an application and fee in accordance with sec.711.7 of this title 
(relating to Application Procedures); 
   
  (2) a current copy of the law and rules of the other state, District of 
Columbia, or territory of the United States governing its licensing and 
regulation of dietitians; 
   
  (3)  verification acceptable to the board that the applicant has passed the 
commission's examination/or an examination offered by another state; the 
District of Columbia; or a territory of the United States for licensure as a 
dietitian; 
   
  (4) verification that the licensee is or will be supervised by a licensed 
dietitian in the same manner as set out in sec.711.9 of this title (relating to 
Provisional Licensed Dietitians). 
     
  (c) Time limit. A temporary license is valid for 180 days, until the date the 
board approves or denies the temporary licensee's application for a license, or 
until the applicant is notified that he or she has failed the first examination 
for which the applicant was eligible, whichever is earlier. A temporary license 
is not subject to renewal or extension for any reason. A person whose temporary 
license has expired is not eligible to receive another temporary license. 
   
  (d) Status change. The board shall issue a license to the holder of a 
temporary license after: 
 
  (1) the temporary licensee passes the examination required for licensure by 
the board or becomes a registered dietitian after completion of the commission's 
examination; 
   
  (2) the board verifies that the temporary licensee has met the academic 
requirements set out in sec.711.4 of this title (relating to Academic 
Requirements for Licensure) and the experience requirements in sec.711.5 of this 
title (relating to Experience Requirements for Examination). 
 
       
  sec.711.19. Informal Disposition. 
 
  (a) Informal disposition of any complaint or contested case involving a 
licensee or an applicant for licensure may be made through an informal 
settlement conference held to determine whether an agreed settlement order may 
be approved. 
   
  (b) If the executive secretary or the complaints committee of the board 
determines that the public interest might be served by attempting to resolve a 
complaint or contested case by an agreed order in lieu of a formal hearing, the 
provisions of this section shall apply. A licensee or applicant may request an 
informal settlement conference; however, the decision to hold a conference shall 
be made by the executive secretary or the complaints committee. 
   
  (c)  An informal conference shall be voluntary. It shall not be a prerequisite 
to a formal hearing. 
   
  (d) The executive secretary shall decide upon the time, date and place of the 
settlement conference and provide written notice to the licensee or applicant of 
the same. Notice shall be provided no less than ten days prior to the date of 
the conference by certified mail, return receipt requested to the last known 
address of the licensee or applicant or by personal delivery. The ten days shall 
begin on the date of mailing or delivery. The licensee or applicant may waive 
the ten day notice requirement. 
 
  (1) The notice shall inform the licensee or applicant of the following: 
 
  (A) the nature of the alleged violation; 
   
  (B)  that the licensee may be represented by legal counsel; 
   
  (C) that the licensee or applicant may offer the testimony of witnesses and 
present other evidence as may be appropriate; 
   
  (D) that board members may be present; 
   
  (E) that the board's legal counsel or a representative of the Office of the 
Attorney General will be present; 
   
  (F) that the licensee's or applicant's attendance and participation is 
voluntary; 
   
  (G)  that the complainant and any client involved in the alleged violations 
may be present; and 
   
  (H) that the settlement conference shall be cancelled if the licensee or 
applicant notifies the executive secretary that he or she or his or her legal 
counsel will not attend. 
     
  (2) A copy of the board's rules concerning informal disposition shall be 
enclosed with the notice of the settlement conference. 
     
  (e) The notice of the settlement conference shall be sent by certified mail, 
return receipt requested, to the complainant at his or her last known address or 
personally delivered to the complainant. The complainant shall be informed that 
he or she may appear and testify or may submit a written statement for 
consideration at the settlement conference. The complainant shall be notified if 
the conference is cancelled. 
   
  (f) Members of the complaints committee may be present at a settlement 
conference. 
   
  (g) The settlement conference shall be informal and shall not follow the 
procedures established in this chapter for contested cases and formal hearings. 
   
  (h) The licensee, the licensee's attorney, committee members, and board staff 
may question witnesses, make relevant statements, present statements of persons 
not in attendance, and present such other evidence as may be appropriate. 
   
  (i) The board's legal counsel or an attorney from the Office of the Attorney 
General shall attend each settlement conference. The board members or executive 
secretary may call upon the attorney at any time for assistance in the 
settlement conference. 
   
  (j)  The licensee shall be afforded the opportunity to make statements that 
are material and relevant. 
   
  (k) Access to the board's investigative file may be prohibited or limited in 
accordance with the Government Code, Article 2001 and the Administrative 
Procedure Act (APA). 
   
  (l) At the discretion of the executive secretary or the committee members, a 
tape recording may be made of none or all of the settlement conference. 
   
  (m)  The committee members or the executive secretary shall exclude from the 
settlement conference all persons except witnesses during their testimony, the 
licensee, the licensee's attorney, and board staff. 
   
  (n) The complainant shall not be considered a party in the settlement 
conference but shall be given the opportunity to be heard if the complainant 
attends. Any written statement submitted by the complainant shall be reviewed at 
the conference. 
   
  (o) At the conclusion of the settlement conference, the committee members or 
executive secretary may make recommendations for informal disposition of the 
complaint or contested case. The recommendations may include any disciplinary 
action authorized by the Licensed Dietitian Act (Act). The committee members or 
executive secretary may also conclude that the board lacks jurisdiction, 
conclude that a violation of the Act or this chapter has not been established, 
order that the investigation be closed, or refer the matter for further 
investigation. The committee members or executive secretary may also refer the 
matter for further investigation. 
   
  (p) The licensee or applicant may either accept or reject at the conference 
the settlement recommendations. If the recommendations are accepted, an agreed 
settlement order shall be prepared by the board office or the board's legal 
counsel and forwarded to the licensee or applicant. The order shall contain 
agreed findings of fact and conclusions of law. The licensee or applicant shall 
execute the order and return the signed order to the board office within ten 
days of his or her receipt of the order. If the licensee or applicant fails to 
return the signed order within the stated time period, the inaction shall 
constitute rejection of the settlement recommendations. 
   
  (q) If the licensee or applicant rejects the proposed settlement, the matter 
shall be referred to the executive secretary for appropriate action. 
   
  (r) If the licensee or applicant signs and accepts the recommendations, the 
agreed order shall be submitted to the entire board for its approval. Placement 
of the agreed order on the board agenda shall constitute only a recommendation 
for approval by the board. 
   
  (s) The identity of the licensee or applicant shall not be made available to 
the board until after the board has reviewed and accepted the agreed order 
unless the licensee or applicant chooses to attend the board meeting. The 
licensee or applicant shall be notified of the date, time, and place of the 
board meeting at which the proposed agreed order will be considered. Attendance 
by the licensee or applicant is voluntary. 
   
  (t) Upon an affirmative majority vote, the board shall enter an agreed order 
approving the accepted settlement recommendations. The board may not change the 
terms of a proposed order but may only approve or disapprove an agreed order 
unless the licensee or applicant is present at the board meeting and agrees to 
other terms proposed by the board. 
   
  (u) If the board does not approve a proposed agreed order, the licensee or 
applicant and the complainant shall be so informed. The matter shall be referred 
to the executive secretary for other appropriate action. 
 
  (v) A proposed agreed order is not effective until the full board has approved 
the agreed order. The order shall then be effective in accordance with APA, 
sec.18(c). 
     
  (w) A licensee's opportunity for an informal conference under this section 
shall satisfy the requirement of the Government Code, Chapter 2001 and APA, 
sec.18(c). 
 
  (1) If the executive secretary or complaints committee determines that an 
informal conference shall not be held, the executive secretary shall give 
written notice to the licensee or applicant of the facts or conduct alleged to 
warrant the intended disciplinary action and the licensee or applicant shall be 
given the opportunity to show, in writing and as described in the notice, 
compliance with all requirements of the Dietitian Act and this chapter. 
   
  (2) The complainant shall be sent a copy of the written notice. The 
complainant shall be informed that he or she may also submit a written statement 
to the board office. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on November 1, 1993. 
 TRD-9331319 
  Pattye Greer 
 Chairman 
 Texas State Board of Examiners of Dietitians 
    Effective date: November 22, 1993 
 Proposal publication date: July 23, 1993 
 For further information, please call: (512) 834-6601 
         
                   
  TITLE 25. HEALTH SERVICES 
 Part I. Texas Department of Health 
  Chapter 1. Board of Health 
  
  Complaints 
 
  25 TAC sec.1.191 
 
  The Texas Department of Health (department) adopts new  sec.1.191, with 
changes to the proposed text as published in the August 17, 1993, issue of the 
Texas Register  (18 Tex Reg 5475). The new section concerns complaints and 
implements the Health and Safety Code, sec.11.018, which requires the department 
to establish methods by which the consumers and service recipients can be 
notified of the mailing addresses, and telephone numbers of the department for 
the purpose of directing complaints to the department. Specifically, the new 
section provides that the names, addresses and telephone numbers of the 
appropriate department divisions, programs, and offices to whom to direct 
complaints will be included on a sign prominently displayed in the place of 
business of each person or entity regulated by the department. For those 
regulated persons or entities not having a place of business, written 
notification must be provided to the clients of those persons and entities. 
 The following comments were received concerning the proposed rule. 
 Comment: Several commenters suggested the department not use the names of Texas 
Department of Health personnel for directing complaints to the department. It 
was further suggested that the respective divisions, programs and/or offices be 
named instead of individual employees, due to the potential increase in printing 
cost to the state because of personnel changes. There was also a concern that 
because of the potential volume of calls, the public would not be able to reach 
the individual named and lose confidence in the department. 
 Response: The department agrees and has modified sec.1.191 accordingly. 
 Comment: Concerning the fiscal effect on state government for the first year, 
several commenters suggested the projected additional cost to state government 
was inadequate because there was no provision for staff to implement the policy 
when adopted. 
 Response: The department agrees and has modified its projection of costs on 
state government in that the department now believes that the fiscal effect on 
state government for the first year will be an estimated additional cost of 
$133,050 for fiscal year 1994 and $55,000 each year for fiscal years 1995-1998. 
 Comment: Concerning notification, the commenter suggested not every regulated 
person or entity has a place of business. The commenter further suggested an 
alternative method should be given to the clients such as a written statement 
identifying the respective divisions, programs, and/or offices. 
 Response: The department agrees and has modified the procedure by amending 
sec.1.191(b) and adding new sec.1.191(c). Minor editorial changes were made for 
clarification purposes. 
 Comments received on the proposed rules during the comment period were from 
individuals and the Texas Public Employees Association, Chapter 28. The 
commenters were generally in favor of the rule; however, they raised questions 
and concerns, offered comments for clarification, and made recommendations 
concerning specific provisions in the rule. 
 The section is adopted under the Health and Safety Code  sec.11.018, which 
requires the department to establish complaint procedures; and sec.12.001, which 
provides the Board of Health with authority to adopt rules for the performance 
of every duty imposed by law on the Texas Board of Health, the Texas Department 
of Health and the Commissioner of Health. 
 
 
  sec.1.191. Complaints. 
 
  (a) This section establishes the methods by which the public, consumers, and 
service recipients can be notified of the mailing addresses and telephone 
numbers of appropriate Texas Department of Health (department) divisions, 
programs and offices for the purpose of directing complaints to the department. 
   
  (b) The names, mailing addresses, and telephone numbers of the appropriate 
department divisions, programs, and offices to whom the public, consumers, and 
service recipients can direct complaints will be included on a sign prominently 
displayed in the place of business of each person or entity regulated by the 
department. 
   
  (c) For those regulated persons or entities not having a place of business, 
written notification must be provided to the clients of those persons and 
entities. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on October 28, 1993. 
 TRD-9331204 
  Susan K. Steeg 
 General Counsel 
 Texas Department of Health 
    Effective date: December 1, 1993 
 Proposal publication date: August 17, 1993 
 For further information, please call: (512) 458-7261 
         
               Chapter 98. HIV and STD Control 
  
  Subchapter C. Texas HIV Medication Program 
 
  General Provisions 
 
  25 TAC sec.98.104, sec.98.105 
 
  The Texas Department of Health (department) adopts amendments to existing 
sec.98.104 and sec.98.105, concerning the Texas HIV Medication Program. Section 
98.105 is adopted with changes to the text as published in the September 17, 
1993, issue of the Texas Register (18 TexReg 6283). Section 98.104 is adopted 
without changes and will not be republished. 
 The sections implement the provisions of the "Communicable Disease Prevention 
and Control Act," Health and Safety Code, Subchapter C, sec.85.063, concerning 
the Texas HIV Medication Program. The program assists hospital districts, local 
health departments, public or nonprofit hospitals and clinics, nonprofit 
community organizations, and HIV-infected individuals in the purchase of 
medications approved by the board that have been shown to be effective in 
reducing hospitalizations due to HIV-related conditions. Generally, the sections 
cover eligibility for participation and medication coverage. The amendments 
expand coverage of the program to include Rifabutin for eligible participants; 
amends the criteria for Interferon-Alpha; and deletes specified drugs reimbursed 
to the Tuberculosis Elimination Division. 
 No comments were received regarding the adoption of the amendments. 
 Minor editorial changes were made to sec.98.105 for clarification purposes. 
 The amendments are adopted under the Health and Safety Code, sec.85.063, which 
provides the Texas Board of Health with the authority to adopt rules concerning 
a Texas HIV Medication Program; and sec.12.001, which provides the Texas Board 
of Health with the authority to adopt rules for the performance of every duty 
imposed by law on the Texas Board of Health, the Texas Department of Health, and 
the Commissioner of Health. 
 
 
  sec.98.105. Drug Specific Eligibility Criteria. A person is eligible for: 
 
  (1)-(9) (No change.) 
   
  (10)  Interferon-Alpha for the treatment of disseminated Kaposi's sarcoma in 
HIV-infected persons with T-cell counts over 200. The total amount to be 
expended on this drug is $122,600. The requesting physician must complete a form 
to be returned to the program which will allow the program to evaluate the 
benefits of providing this medication; 
   
  (11)  Amphotericin-B for the treatment of patients with progressive and 
potentially fatal disseminated fungal infections. The total amount to be 
expended on this drug is $46,200. The requesting physician must complete a form 
to be returned to the program which will allow the program to evaluate the 
benefits of providing this medication; 
   
  (12) Atovaquone for the oral treatment of acute mild to moderate Pneumocystis 
carinii Pneumonia (PCP) in patients who are intolerant to sulfamethoxazole-
trimethoprim (SMZ-TMP); and 
   
  (13) Rifabutin for the prevention of disseminated mycobacterium avium complex 
disease in patients with a CD4 cell count of 100 or less. The amount to be 
expended on this drug is up to $100,000, then pending available funding. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on October 28, 1993. 
 TRD-9331209 
  Susan K. Steeg 
 General Counsel 
 Texas Department of Health 
    Effective date: November 18, 1993 
 Proposal publication date: September 17, 1993 
 For further information, please call: (512) 458-7261 
         
                 Chapter 229. Food and Drug 
  
  Licensure of Manufacturers of Food and Wholesale Distributors of Food-
Including Good Manufacturing Practices 
 
  25 TAC sec.sec.229.181-229.184 
 
  The Texas Department of Health (department) adopts amendments to 
sec.sec.229.181-229.184 concerning licensure of manufacturers of food and 
wholesale distributors of food-including good manufacturing practices. Section 
229.182 is adopted with changes to the proposed text as published in the 
September 10, 1993, issue of the Texas Register (18 TexReg 6069). Section 
229.181 and sec.sec.229. 183-229.184 are adopted without changes and will not be 
republished. 
 The amendments establish fees which are to be collected, amend the sections to 
include food wholesalers, and establish standards for licensure. 
 The amendments will enable the department to license and regulate food 
wholesalers to ensure compliance with minimum standards for licensure, and to 
ensure that these establishments are operated in a sanitary manner to preclue 
contimination and/or adulteration of foods held for sale in Texas. 
 No comments were received specific to these rules. During the comment period, 
however, the department did receive numerous calls concerning license expiration 
dates from businesses engaged in food manufacture at multiple locations. 
Whenever a new location business is added to their chain, the businesses would 
like to be allowed to pay a proprated fee so that the new license will expire at 
the same time as their other licenses. Section 229. 182(a)(6) has been added to 
provide a one time proration of license fees for a new location allocable to the 
number of days during which the license is valid. 
 The amendments are adopted under the Health and Safety Code, sec.431.241, which 
provides the department with the authority to adopt necessary regulations 
pursuant to the enforcement of this chapter; and sec.12.001, which provides the 
Texas Board of Health with the authority to adopt rules for the performance of 
every duty imposed by law on the Texas Board of Health, the Texas Department of 
Health, and the Commissioner of Health. 
 
 
  sec.229.182. Licensing Fee and Procedures. 
 
  (a)  Licensing fee and exemptions. 
 
  (1) All manufacturers of food in Texas shall obtain a license annually with 
the Texas Department of Health and shall pay a license fee as follows: 
 
  (A)-(G) (No change.) 
     
  (2)  A manufacturer of food operating an establishment wherein all 
manufacturing operations are regulated under statutes administered by the Texas 
Department of Health other than the Health and Safety Code, Chapter 431, shall 
be exempt from the payment of the licensing fee. 
   
  (3) All wholesale food distributors in Texas shall obtain a license annually 
with the Texas Department of Health and shall pay a license fee as follows: 
 
  (A) $100 per establishment having a gross annual volume of $0.00-$499,999.99 
for food products distributed from that establishment; 
   
  (B) $300 per establishment having a gross annual volume of $500,000. 00-
$9,999,999.99 for food products distributed from that establishment; 
   
  (C) $500 per establishment having a gross annual volume of $10,000,000 or more 
for food products distributed from that establishment; 
   
  (D) $250 per public food warehouse (terminal) which may have no gross annual 
volume of sales of food, but which is used for storage from which foods are 
distributed by one or more wholesale distributors of foods; and 
   
  (E) $100 per drop ship location, operated by a food manufacturer for temporary 
storage of foods for the purpose of further distribution. 
     
  (4) For the purpose of collecting licensing fees under this section, a person 
that distributes both its own manufactured food and food it does not manufacture 
must obtain only a food manufacture's license. However, when calculating the 
amount of the licensing fee, the manufacturer must include the total for both 
the foods manufactured and the foods warehoused. In addition, food warehousing 
locations operated by a manufacturer of foods, including locations from which 
foods are held for limited periods of time for distribution, and which are 
totally separate from any manufacturing location, must be individually licensed 
as food wholesalers. 
   
  (5)  For the purpose of collecting licensing fees under this section, a food 
broker which engages in the storage of food, even for limited periods of time, 
must license as a food wholesaler. 
   
  (6) A firm that has more than one business location may request a one time 
proration of fees when applying for a license for each new location. Upon 
approval by the department, the expiration date of the license for the new 
location will be established the same as the firm's previously licensed 
locations. 
     
  (b) License forms. License forms may be obtained from the Division of Food and 
Drugs, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756-
3182. 
   
  (c) License application. All manufacturers of food and wholesale food 
distributors shall file a license application on a form furnished by the 
department. The application form shall be signed and verified, and shall contain 
the following information: 
 
  (1) (No change.) 
   
  (2) the address of each place of business in the state that is licensed; 
   
  (3)  (No change.) 
   
  (4) the names and residences of those individuals in an actual administrative 
capacity which, in the case of a sole proprietorship shall be the managing 
proprietor; in a partnership, the managing partner; in a corporation, the 
officers and directors; in any other association, those in a managerial 
capacity; and the residence address of a person in charge of each place of 
business; and 
   
  (5)  a list of categories of gross annual volume which must be marked and 
adhered to by the licensee in the determination and paying of the fee. 
     
  (d) Two or more establishments. If the manufacturer or food wholesaler 
operates more than one establishment, each establishment shall be licensed 
separately by listing the name and address of each establishment on the license 
application. 
   
  (e) Prelicense inspection. The applicant shall cooperate with any prelicense 
inspection by the department of the manufacturer's or food wholesaler's 
facilities. 
   
  (f) Issuance of license. The department may license a manufacturer or 
wholesaler of foods who meets the requirements of this section and sec.229.183 
of this title (relating to Minimum Standards for Licensure). 
 
  (1)  The initial license shall be valid for one year from the date of issuance 
which becomes the anniversary date. 
   
  (2) The renewal license shall be valid for one year from the anniversary date. 
     
  (g) Renewal of license. 
 
  (1) Each year, the food manufacturer or wholesaler shall renew its license 
following the requirements of this section and sec.229.183 of this title. 
   
  (2) A person who holds a license issued by the department under the Health and 
Safety Code shall renew the license by filing an application for renewal on a 
form prescribed by the department accompanied by the appropriate licensing fee. 
A licensee must file for renewal before the expiration date of the current 
license. A person who files a renewal application after the expiration date must 
pay an additional $100 as a delinquency fee. 
   
  (3) Failure to submit the renewal annually may subject the food manufacturer 
or food wholesaler to the offense provisions under the Health and Safety Code, 
Chapter 431, and also to the provision of sec.229.184 of this title (relating to 
the Refusal, Revocation, or Suspension of License). 
     
  (h) Amendment of license. 
 
  (1) Fees. A license that is amended, including a change of name, ownership, or 
a notification of a change in the location of a licensed place of business 
required under the Health and Safety Code, sec.431.2251, will require submission 
of fees as outlined in subsection (a) of this section. 
   
  (2) Change in location of place of business. Not later than the 31st day 
before the date of the change, the license holder shall notify in writing the 
commissioner or the commissioner's designee of the license holder's intent to 
change the location of a licensed place of business. The notice shall include 
the address of the new location and the name and residence address of the 
individual in charge of the place of business. Not later than the 10th day after 
the completion of the change of location, the license holder shall forward to 
the commissioner or the commissioner's designee the name and residence address 
of the individual in charge of the new place of business. Notice is considered 
adequate if the license holder provides the intent and verification notices to 
the commissioner or the commissioner's designee by certified mail, return 
receipt requested, mailed to the Texas Department of Health, Division of Food 
and Drugs, 1100 West 49th Street, Austin, Texas, 78756-3182. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on November 1, 1993. 
 TRD-9331346 
  Susan K. Steeg 
 General Counsel, Office of General Counsel 
 Texas Department of Health 
    Effective date: November 22, 1993 
 Proposal publication date: September 10, 1993 
 For further information, please call: (512) 458-7248 
         
                     
  TITLE 30. ENVIRONMENTAL QUALITY 
 Part I. Texas Natural Resource Conservation Commission 
  Chapter 305. Consolidated Permits 
  
  The Texas Natural Resource Conservation Commission (TNRCC) adopts amendments 
to sec.sec.305.2, 305.50, 305.69, and 305.122, concerning consolidated permits. 
Section 305.2 and sec.305.122 are adopted with changes to the proposed text as 
published in the August 10, 1993, issue of the Texas Register  (18 TexReg 5297). 
Section 305.50 and sec.305.69 are adopted without changes. 
 The amendments to these sections are adopted in order to clarify existing rules 
and to adopt certain federal regulations as adopted by the Federal Register. 
 The Commission received comments on the proposed rules from the Texas Chemical 
Council and from the law firm of Brown McCarroll & Oaks Hartline. One commenter 
recognized the need for the TNRCC to update its rules under Chapter 305 in order 
to maintain a regulatory program analogous to the federal hazardous waste 
program. 
 Another commenter addressed proposed sec.305.2 concerning the definition of 
"functionally equivalent component," particularly as it relates to the permit 
modification procedures under  sec.305.69. This commenter expressed concern that 
the definition could be interpreted so that a routine change such as replacing a 
valve with an identical valve in a hazardous waste process line would be subject 
to the procedures for a Class 1 modification. The modification language to which 
the commenter was referring is found under sec.305.69(i)(A)(3) , which assigns a 
Class 1 modification for equipment replacement or upgrading with functionally 
equivalent components (e.g., pipes, valves, pumps, conveyors, controls). In 
response to this commenter's concern about permit modification procedures being 
necessary for replacing equipment with identical components or identical 
equipment, we consider that no permit modification is necessary under 
sec.305.69(i)(A)(3) if the replacement equipment is identical to the original 
equipment. 
 This commenter also encouraged the TNRCC to make clear that routine, planned 
equipment replacements should be considered, whenever possible, to be ongoing 
maintenance activities which are not subject to permit modification procedures. 
The Commission responds that clearly in cases where the permit in question 
contains sufficient flexibility to allow these kinds of equipment replacements 
outside the permit modification process, then the Commission will consider that 
these replacements are not subject to permit modification requirements, as long 
as the replacements do not affect in a detrimental fashion the ability of the 
owner or operator to comply with the permit and all applicable rules. Given 
sufficient flexibility in the permit, along with full compliance by the 
permittee with the permit and all applicable rules, the Commission sees little 
value in requiring permittees to undergo permit modifications for routine and 
planned replacement of equipment, such as pumps, pump seals, pipes, valves, 
conveyors, and instrument controls. We agree with the commenter that requiring 
such permit modifications is not an appropriate use of limited resources, and 
that nobody benefits from subjecting permittees to these permit modifications. 
 On the other hand, an instance where equipment replacement would likely require 
a permit modification arises when the permit specifies a particular type or 
model of equipment and the permittee wishes to replace this equipment with a 
different type or model. In this case, without a separate special permit 
condition which specifies that certain types of equipment replacement could be 
made without a permit modification being necessary as discussed, appropriate 
permit modification procedures must be followed. Also, in a case where the 
permit adopts by reference an application which itself specifies a particular 
type or model of equipment, and the permittee wishes to replace this equipment 
with a different type or model, a permit modification would appear to be 
required, absent a separate special permit condition which obviates this 
requirement. 
 With regard to the need for permit modifications in the aforementioned types of 
situations, the commenter proposed that the Class 1 permit modification 
procedure should be used to allow the permittee to make a one-time change to its 
permit to generalize its equipment descriptions so that it could make routine 
changes without further Class 1 modifications being necessary. The Commission 
sees merit in an approach of this type. However, we do not agree with the 
commenter's suggestion that this change to the permit language should be made as 
a Class 1 modification. Because of the varied levels of detail in existing 
issued permits, we consider it appropriate for at least the Commission to have 
some degree of review of and input into any special permit condition that 
specifies that certain types of equipment replacement could be made without a 
permit modification being necessary. The Class 1 modification procedure would 
not necessarily provide for adequate review and input by the Commission or other 
parties. 
 Nonetheless, as previously mentioned, the Commission finds merit in an approach 
wherein a change is made to the permit language that makes it clear that a 
permit modification is not necessary each time routine maintenance is required 
to replace equipment not identical to the original equipment, where the permit 
or application specifies a particular type or model of equipment. Therefore, the 
Commission is considering this approach in the context of a workgroup 
established as a subcommittee of Task Force 21, which is an advisory panel 
convened by one of the TNRCC's predecessor agencies, the Texas Water Commission. 
The focus of the workgroup is the standardization of the Commission's hazardous 
waste permits, and it is considering a standard permit provision which would 
address the concerns raised by the commenter. A possible outcome of the 
"standard permit" workgroup is a standard permit condition which would be placed 
in each permit, if determined to be appropriate, based on a case-by-case review, 
at the time of some other amendment or modification to the permit. 
 The Commission adopts sec.305.2 with changes to the proposed text by changing 
any reference to the "Texas Water Commission" to the "Texas Natural Resource 
Conservation Commission." 
 The Commission adopts sec.305.122 with changes to the proposed text, in the 
form of corrections to three of the rule references. The first correction is 
under sec.305.122(a)(2), wherein reference was made in the proposed rule to 
"Part 268 of this chapter." The proposed rule should have referenced "Title 40 
Code of Federal Regulations, Part 268," and is adopted with this change. The 
second correction is under sec.305.122(a)(3), wherein reference was made in the 
proposed rule to "Chapter 335, Subchapter F." The proposed rule should have 
referred to "Title 40 Code of Federal Regulations, Part 264," and is adopted 
with this change. The third correction is also under sec.305.122(a)(3), wherein 
reference was made in the proposed rule to "sec.305.69 of this title (relating 
to Amendments, Modifications, Renewals, Transfers, Corrections, Revocations, and 
Suspensions of Permits)." The proposed rule should have referred to "Title 40 
Code of Federal Regulations, sec.270.42," and is adopted with this change. 
   
  Subchapter A. General Provisions 
 
  30 TAC sec.305.2 
 
  The amendment is adopted pursuant to the Texas Water Code, sec.5.103 and 
sec.5.105, which authorizes the Texas Natural Resource Conservation Commission 
to promulgate rules necessary to carry out the powers and duties under the 
provisions of the Texas Water Code and other laws of this state, and pursuant to 
the Texas Health and Safety Code, sec.361.017 and sec.361.024, which further 
authorizes the Texas Natural Resource Conservation Commission to promulgate 
rules necessary to manage industrial solid and municipal hazardous wastes. 
 More particular authority may be found in Subchapters C and D of the Texas 
Health and Safety Code. 
 
 
  sec.305.2. Definitions.  The definitions contained in the Texas Water Code, 
sec.sec.26.001, 27.002, and 28.001, and the Texas Solid Waste Disposal Act, 
Texas Civil Statutes, Article 4477-7, sec.2, shall apply to this chapter. The 
following words and terms, when used in this chapter, shall have the following 
meanings, unless the context clearly indicates otherwise. 
   
     Component-Any constituent part of a unit or any group of constituent parts 
of a unit which are assembled to perform a specific function (e.g. a pump seal, 
pump, kiln liner, kiln thermocouple). 
   
     Facility mailing list-The mailing list for a facility seeking a Class I 
injection well UIC permit. The facility mailing list, which is described in 40 
CFR, sec.120.10(c)(viii), is maintained by the Texas Natural Resource 
Conservation Commission in accordance with sec.305.103(b). 
   
     Functionally equivalent component-A component which performs the same 
function or measurement and which meets or exceeds the performance 
specifications of another component. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on November 1, 1993. 
 TRD-9331361 
  Mary Ruth Holder 
 Director, Legal Division 
 Texas Natural Resource Conservation Commission 
    Effective date: November 23, 1993 
 Proposal publication date: August 10, 1993 
 For further information, please call: (512) 463-8069 
         
           
  Subchapter C. Application for Permit 
 
  30 TAC sec.305.50 
 
  The amendment is adopted pursuant to the Texas Water Code, sec.5.103 and 
sec.5.105, which authorizes the Texas Natural Resource Conservation Commission 
to promulgate rules necessary to carry out the powers and duties under the 
provisions of the Texas Water Code and other laws of this state, and pursuant to 
the Texas Health and Safety Code, sec.361.017 and sec.361.024, which further 
authorizes the Texas Natural Resource Conservation Commission to promulgate 
rules necessary to manage industrial solid and municipal hazardous wastes. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on November 1, 1993. 
 TRD-9331362 
  Mary Ruth Holder 
 Director, Legal Division 
 Texas Natural Resource Conservation Commission 
    Effective date: November 23, 1993 
 Proposal publication date: August 10, 1993 
 For further information, please call: (512) 463-8069 
         
         
  Subchapter D. Amendments, Modifications, Renewals, Transfers, Corrections, 
Revocation, and Suspension of Permits 
 
  30 TAC sec.305.69 
 
  The amendment is adopted pursuant to the Texas Water Code, sec.5.103 and 
sec.5.105, which authorizes the Texas Natural Resource Conservation Commission 
to promulgate rules necessary to carry out the powers and duties under the 
provisions of the Texas Water Code and other laws of this state, and pursuant to 
the Texas Health and Safety Code, sec.361.017 and sec.361.024, which further 
authorizes the Texas Natural Resource Conservation Commission to promulgate 
rules necessary to manage industrial solid and municipal hazardous wastes. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on November 1, 1993. 
 TRD-9331363 
  Mary Ruth Holder 
 Director, Legal Division 
 Texas Natural Resource Conservation Commission 
    Effective date: November 23, 1993 
 Proposal publication date: August 10, 1993 
 For further information, please call: (512) 463-8069 
         
         
  Subchapter F. Permit Characteristics and Conditions 
 
  30 TAC sec.305.122 
 
  The amendment is adopted pursuant to the Texas Water Code, sec.5.103 and 
sec.5.105, which authorizes the Texas Natural Resource Conservation Commission 
to promulgate rules necessary to carry out the powers and duties under the 
provisions of the Texas Water Code and other laws of this state, and pursuant to 
the Texas Health and Safety Code, sec.361.017 and sec.361.024, which further 
authorizes the Texas Natural Resource Conservation Commission to promulgate 
rules necessary to manage industrial solid and municipal hazardous wastes. 
 
 
  sec.305.122. Characteristics of Permits. 
 
  (a) Compliance with a Resource Conservation and Recovery Act (RCRA) permit 
during its term constitutes compliance, for purposes of enforcement, with 
Subtitle C of RCRA except for those requirements not included in the permit 
which: 
 
  (1)  become effective by statute; 
   
  (2) are promulgated under Title 40 Code of Federal Regulations Part 268 
restricting the placement of hazardous wastes in or on the land; or 
   
  (3) are promulgated under Title 40 Code of Federal Regulations Part 264, 
regarding leak detection systems for new and replacement surface impoundment, 
waste pile, and landfill units. The leak detection system requirements include 
double liners, CQA programs, monitoring, action leakage rates, and response 
through the Class 1 permit modifications procedures of Title 40 Code of Federal 
Regulations, sec.270.42 (relating to permit modification at the request of the 
permittee). 
     
  (b) A permit issued within the scope of this subchapter does not convey any 
property rights of any sort, nor any exclusive privilege, and does not become a 
vested right in the permittee. 
   
  (c) The issuance of a permit does not authorize any injury to persons or 
property or an invasion of other property rights, or any infringement of state 
or local law or regulations. 
   
  (d) Except for any toxic effluent standards and prohibitions imposed under 
Clean Water Act (CWA), sec.307, and standards for sewage sludge use or disposal 
under CWA, sec.405(d), compliance with a Texas pollutant discharge elimination 
system (TPDES) permit during its term constitutes compliance, for purposes of 
enforcement, with the CWA, sec.sec.301, 302, 306, 307, 318, 403, and 405; 
however, a TPDES permit may be amended or revoked during its term for cause as 
set forth in sec.305.62 and sec.305.66 of this title (relating to Amendment; and 
Permit Denial, Revocation, and Suspension.) 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on November 1, 1993. 
 TRD-9331364 
  Mary Ruth Holder 
 Director, Legal Division 
 Texas Natural Resource Conservation Commission 
    Effective date: November 23, 1993 
 Proposal publication date: August 10, 1993 
 For further information, please call: (512) 463-8069 
         
               Chapter 331. Underground Injection Control 
  
  Subchapter G. Consideration Prior to Permit Issuance 
 
  30 TAC sec.331.121 
 
  The Texas Natural Resource Conservation Commission adopts an amendment to 
sec.331.121, concerning underground injection control, without changes to the 
proposed text as published in the August 10, 1993, issue of the Texas Register  
(18 TexReg 5304). 
 The purpose of the amendment is to adopt federal regulations as published and 
adopted in (52 FedReg 45797) as promulgated on December 1, 1987. 
 The Commission received no comments on the proposed amendment. 
 The amendment is adopted pursuant to the Texas Water Code, sec.5.103 and 
sec.5.105, which authorizes the Texas Natural Resource Conservation Commission 
to promulgate any rules necessary to carry out the powers and duties under the 
provisions of the Texas Water Code and other laws of this state. Additionally, 
this amendment is adopted pursuant to the Texas Health and Safety Code, sec.361. 
017 and sec.361.024, which further authorizes the Texas Natural Resource 
Conservation Commission to promulgate rules necessary to regulate the operation, 
management, and control of industrial solid and municipal hazardous wastes. 
 More particular authority may be found in Subchapters C and D of the Texas 
Health and Safety Code. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on November 1, 1993. 
 TRD-9331365 
  Mary Ruth Holder 
 Director, Legal Division 
 Texas Natural Resource Conservation Commission 
    Effective date: November 23, 1993 
 Proposal publication date: August 10, 1993 
 For further information, please call: (512) 463-8069 
         
           Chapter 335. Industrial Solid Waste and Municipal Hazardous Waste 
  
  The Texas Natural Resource Conservation Commission (TNRCC) adopts amendments 
to sec.sec.335.1, 335.2, 335.10, 335.13, 335.29, 335.41, 335.47, 335.61, 335.69, 
335.74, 335.111, 335.112, 335.115, 335.152, 335.155, 335.166-335.168, 335.173, 
335.211, 335.224, and 335.504, and repeals sec.335.431, and adopts new 
sec.335.431, concerning industrial solid waste and municipal hazardous waste. 
The amendments to sec.335.2, sec.335.69, and new sec.335.431 are adopted with 
changes to the proposed text as published in the August 10, 1993, issue of the 
Texas Register (18 TexReg 5304). Sections 335.1, 335.10, 335.13, 335.29, 335.41, 
335.47, 335.61, 335.74, 335.111, 335.112, 335.115, 335.152, 335.155, 335.166-
335.168, 335.173, 335.211, 335.224, and 335.504, and the repeal of sec.335.431, 
are adopted without changes to the proposed text as published in the August 10, 
1993, issue of the Texas Register (18 TexReg 5304). 
 The purpose of the amendments, repeal, and new section is to adopt certain 
federal hazardous waste regulations and to clarify existing state regulations. 
 All references to the "Texas Water Commission" and "31 TAC" have been changed 
to reflect "Texas Natural Resource Conservation Commission" and "30 TAC" 
throughout the sections adopted with changes. 
 The Commission adopts sec.335.69 with changes to the proposed text. In the 
proposed text, a mistake in formatting resulted in placement of the following 
phrase in such a position (i.e., under sec.335.69(a)) such that the phrase would 
apply to all generators accumulating hazardous waste on-site for 90 days or less 
in accordance with sec.335.69: "In addition, such a generator is exempt from all 
requirements adopted by reference in sec.335.112(a)(6) and (7) of this title 
(relating to Standards), except 40 Code of Federal Regulations, sec.265. 111 and 
sec.265.114." The adopted rule corrects this mistake by properly placing the 
aforementioned phrase under sec.335.69(a)(1)(C). 
 The Commission received comments on the proposed rules from the Texas Chemical 
Council. This commenter addressed proposed sec.335.167(c), which relates to 
corrective action for solid waste management units, and which specifically 
requires the owner or operator of solid waste management units to implement 
corrective actions beyond the facility boundary, where necessary to protect 
human health and the environment, unless the owner or operator can demonstrate 
that he was unable to obtain the necessary permission from the off-site entity, 
despite the owner's or operator's best efforts to obtain this permission. The 
commenter's primary comment centered around the phrase "owner's or operator's 
best efforts," expressing concern that an adjacent property owner may make 
exorbitant demands, to the point of being unreasonable. The commenter stated 
that it would be helpful if the TNRCC would acknowledge that the phrase "owner's 
or operator's best efforts" should be reasonably interpreted, along the lines of 
the interpretation made by the United States Environmental Protection Agency in 
its preamble to 40 Code of Federal Regulations, sec.264.101(c) in the  Federal 
Register (see 52 FedReg 45790) . 
 We agree with the commenter that the phrase "owner's or operator's best 
efforts," as previously discussed, should be interpreted in a reasonable 
fashion. The Commission considers it important to implement a flexible, case-by-
case approach in consideration of what constitutes best efforts to obtain 
permission from an adjacent landowner to conduct corrective actions on that 
landowner's property. In this case-by-case approach, the Commission will 
consider factors such as the extent and significance of the release, the types 
of contacts made with the off-site property owner (e.g., a certified letter from 
the owner or operator), and the reasonableness or extent of the efforts. 
 The commenter also stated the belief that corrective action beyond the facility 
boundaries would trigger the application of the recently promulgated Commission 
rules under Subchapter S, relating to Risk Reduction Standards. The commenter 
stated that such an application of the risk reduction rules would provide 
assurance to a facility owner or operator that it would only be required to 
address off-site contamination that presents a real and significant risk to 
human health and the environment, and to consider the comparative options 
available to manage that risk. In response to this comment, the Commission 
believes that consideration of whether to allow the risk reduction standards to 
be applied to the cleanup of off-site contamination merits further discussion. 
However, such an allowance is beyond the scope of the current rulemaking, and 
thus cannot be included at this time. We consider that development of a policy 
or rule which allows the risk reduction standards of Subchapter S to be applied 
in the remediation of contamination beyond facility boundaries needs to be 
accomplished with input from the public through the commission's rulemaking 
process, and in accordance with the Administrative Procedure Act. 
   
  Subchapter A. Industrial Solid Waste and Municipal Hazardous Waste Management 
in General 
 
  30 TAC sec.sec.335.1, 335.2, 335.10, 335.13, 335.29 
 
  The amendments are adopted pursuant to the Texas Water Code, sec.5.103 and 
sec.5.105, which authorizes the Texas Natural Resource Conservation Commission 
to promulgate rules necessary to carry out the powers and duties under the 
provisions of the Texas Water Code and other laws of this state, and pursuant to 
the Texas Health and Safety Code, sec.361.017 and sec.361.024, which further 
authorizes the Texas Natural Resource Conservation Commission to promulgate 
rules necessary to manage industrial solid and municipal hazardous wastes. 
 More particular authority may be found in Subchapters C and D of the Texas 
Health and Safety Code. 
 
 
  sec.335.2. Permit Required. 
 
  (a)-(b) (No change.) 
   
  (c)  Any owner or operator of a solid waste management facility that is in 
existence on the effective date of a statutory or regulatory change that 
subjects the owner or operator to a requirement to obtain a hazardous waste 
permit who has filed a hazardous waste permit application with the commission in 
accordance with the rules and regulations of the commission, may continue the 
storage, processing, or disposal of hazardous waste until such time as the Texas 
Natural Resource Conservation Commission approves or denies the application, or, 
if the owner or operator becomes subject to a requirement to obtain a hazardous 
waste permit after November 8, 1984, except as provided by the United States 
Environmental Protection Agency or commission rules relative to termination of 
interim status. If a solid waste facility which has become a commercial 
hazardous waste management facility as a result of the federal toxicity 
characteristic rule effective September 25, 1990, and is required to obtain a 
hazardous waste permit, such facility that qualifies for interim status is 
limited to those activities that qualify it for interim status until the 
facility obtains the hazardous waste permit. Owners or operators of municipal 
hazardous waste facilities which satisfied this requirement by filing an 
application on or before November 19, 1980, with the United States Environmental 
Protection Agency are not required to submit a separate application with the 
Texas Department of Health. Applications filed under this section shall meet the 
requirements of sec.335.44 of this title (relating to Application for Existing 
On-Site Facilities). Owners and operators of solid waste management facilities 
that are in existence on the effective date of statutory or regulatory 
amendments under the Solid Waste Disposal Act, Chapter 361, Texas Health and 
Safety Code Annotated (Vernon's Supplement 1991), Texas Civil Statutes, Article 
4477-7, or the Resource Conservation and Recovery Act of 1976, as amended, 42 
United States Code, sec.sec.6901 et seq, that render the facility subject to the 
requirement to obtain a hazardous waste permit, may continue to operate if Part 
A of their permit application is submitted no later than six months after the 
date of publication of regulations by the United States Environmental Protection 
Agency pursuant to the Resource Conservation and Recovery Act of 1976, as 
amended, which first require them to comply with the standards set forth in 
Subchapter E of this chapter (relating to Interim Standards for Owners and 
Operators of Hazardous Waste Storage, Processing, or Disposal Facilities), or 
Subchapter H of this chapter (relating to Standards for the Management of 
Specific Wastes and Specific Types of Facilities); or 30 days after the date 
they first become subject to the standards set forth in these subchapters, 
whichever first occur; or for generators who generate greater than 100 kilograms 
but less than 1,000 kilograms of hazardous waste in a calendar month and who 
process, store, or dispose of these wastes on-site, a Part A permit application 
shall be submitted to the United States Environmental Protection Agency by March 
24, 1987, as required by 40 Code of Federal Regulations, sec.270.10(e)(1)(iii). 
This subsection shall not apply to a facility if it has been previously denied a 
hazardous waste permit or if authority to operate the facility has been 
previously terminated. Applications filed under this section shall meet the 
requirements of sec.335.44 of this title (relating to Application for Existing 
On-Site Facilities). For purposes of this subsection, a solid waste management 
facility is in existence if the owner or operator has obtained all necessary 
federal, state, and local preconstruction approvals or permits, as required by 
applicable federal, state, and local hazardous waste control statutes, 
regulations, or ordinances; and either: 
 
  (1)-(2) (No change.) 
     
  (d) -(h) (No change.) 
   
  (i) Owners or operators of hazardous waste management units must have permits 
during the active life (including the closure period) of the unit. Owners or 
operators of surface impoundments, landfills, land treatment units, and waste 
pile units that received wastes after July 26, 1982, or that certified closure 
(according to 40 Code of Federal Regulations, sec.265.115) after January 26, 
1983, must have post-closure permits, unless they demonstrate closure by removal 
as provided under 40 Code of Federal Regulations, sec.270.1(c)(5) and (6). If a 
post-closure permit is required, the permit must address applicable provisions 
of 40 Code of Federal Regulations, Part 264, and Subchapter F of this Chapter 
(relating to Permitting Standards for Owners and Operators of Hazardous Waste 
Storage, Processing, or Disposal Facilities) provisions relating to Groundwater 
Monitoring, Unsaturated Zone Monitoring, Corrective Action, and Post-closure 
Care Requirements. The denial of a permit for the active life of a hazardous 
waste management facility or unit does not affect the requirement to obtain a 
post-closure permit under this section. 
   
  (j) (No change.) 
   
  (k) When used in this Chapter (relating to Industrial Solid Waste and 
Municipal Hazardous Waste), the references contained in 40 Code of Federal 
Regulations, sec.260.11 are incorporated by reference. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on November 1, 1993. 
 TRD-9331366 
  Mary Ruth Holder 
 Director, Legal Division 
 Texas Natural Resource Conservation Commission 
    Effective date: November 23, 1993 
 Proposal publication date: August 10, 1993 
 For further information, please call: (512) 463-8069 
         
             
  Subchapter B. Hazardous Waste Management General Provisions 
 
  30 TAC sec.335.41, sec.335.47 
 
  The amendments are adopted pursuant to the Texas Water Code, sec.5.103 and 
sec.5.105, which authorizes the Texas Natural Resource Conservation Commission 
to promulgate rules necessary to carry out the powers and duties under the 
provisions of the Texas Water Code and other laws of this state, and pursuant to 
the Texas Health and Safety Code, sec.361.017 and sec.361.024, which further 
authorizes the Texas Natural Resource Conservation Commission to promulgate 
rules necessary to manage industrial solid and municipal hazardous wastes. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on November 1, 1993. 
 TRD-9331367 
  Mary Ruth Holder 
 Director, Legal Division 
 Texas Natural Resource Conservation Commission 
    Effective date: November 23, 1993 
 Proposal publication date: August 10, 1993 
 For further information, please call: (512) 463-8069 
         
         
  Subchapter C. Standards Applicable to Generators of Hazardous Waste 
 
  30 TAC sec.sec.335.61, 335.69, 335.74 
 
  The amendments are adopted pursuant to the Texas Water Code, sec.5.103 and 
sec.5.105, which authorizes the Texas Natural Resource Conservation Commission 
to promulgate rules necessary to carry out the powers and duties under the 
provisions of the Texas Water Code and other laws of this state, and pursuant to 
the Texas Health and Safety Code, sec.361.017 and sec.361.024, which further 
authorizes the Texas Natural Resource Conservation Commission to promulgate 
rules necessary to manage industrial solid and municipal hazardous wastes. 
 
 
  sec.335.69. Accumulation Time. 
 
  (a) Except as provided in subsections (f)-(h) of this section, a generator may 
accumulate hazardous waste on-site for 90 days without a permit or interim 
status provided that: 
 
  (1) the waste is placed: 
 
  (A) in containers and the generator complies with the provisions adopted by 
reference in sec.335.112(a)(8) of this title (relating to Standards); or 
   
  (B) in tanks and the generator complies with the requirements adopted by 
reference in sec.335.112(a)(9) of this title (relating to Standards), except 40 
Code of Federal Regulations sec.265.197(c) and sec.265.200; or 
   
  (C) on drip pads and the generator complies with sec.335.112(a)(18) (relating 
to drip pads) and maintains the following records at the facility: a description 
of procedures that will be followed to ensure that all wastes are removed from 
the drip pad and associated collection system at least once every 90 days; and 
documentation of each waste removal, including the quantity of waste removed 
from the drip pad and the sump or collection system and the date and time of 
removal. In addition, such a generator is exempt from all requirements adopted 
by reference in sec.335.112(a)(6) and (7) of this title (relating to Standards), 
except 40 Code of Federal Regulations, sec.265.111 and sec.265.114. 
     
  (2)-(3)  (No change.) 
   
  (4) the generator complies with the requirements for owners or operators 
contained in 40 Code of Federal Regulations, Part 265, Subparts C and D, as 
incorporated by reference in  sec.335.112 of this title (relating to Standards), 
with 40 Code of Federal Regulations, sec.265.16, with 40 Code of Federal 
Regulations, sec.268.7(a)(4), and sec.335.113 of this title (relating to 
Reporting of Emergency Situations by Emergency Coordinator). 
     
  (b)-(e) (No change.) 
   
  (f) A generator who generates greater than 100 kilograms but less than 1,000 
kilograms of hazardous waste in a calendar month may accumulate hazardous waste 
on-site for 180 days or less without a permit or without having interim status 
provided that: 
 
  (1)-(3)  (No change.) 
   
  (4) the generator complies with the requirements of subsection (a)(2) and (3) 
of this section and the requirements of 40 Code of Federal Regulations, Part 
265, Subpart C, the requirements of 40 Code of Federal Regulations, 
sec.268.7(a)(4); and 
   
  (5) (No change.) 
     
  (g) -(i) (No change.) 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on November 1, 1993. 
 TRD-9331368 
  Mary Ruth Holder 
 Director, Legal Division 
 Texas Natural Resource Conservation Commission 
    Effective date: November 23, 1993 
 Proposal publication date: August 10, 1993 
 For further information, please call: (512) 463-8069 
         
             
  Subchapter E. Interim Standards for Owners and Operators of Hazardous Waste 
Storage, Processing, or Disposal Facilities 
 
  30 TAC sec.sec.335.111, 335.112, 335.115 
 
  The amendments are adopted pursuant to the Texas Water Code, sec.5.103 and 
sec.5.105, which authorizes the Texas Natural Resource Conservation Commission 
to promulgate rules necessary to carry out the powers and duties under the 
provisions of the Texas Water Code and other laws of this state, and pursuant to 
the Texas Health and Safety Code, sec.361.017 and sec.361.024, which further 
authorizes the Texas Natural Resource Conservation Commission to promulgate 
rules necessary to manage industrial solid and municipal hazardous wastes. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on November 1, 1993. 
 TRD-9331369 
  Mary Ruth Holder 
 Director, Legal Division 
 Texas Natural Resource Conservation Commission 
    Effective date: November 23, 1993 
 Proposal publication date: August 10, 1993 
 For further information, please call: (512) 463-8069 
         
         
  Subchapter F. Permitting Standards for Owners and Operators of Hazardous Waste 
Storage, Processing, or Disposal Facilities 
 
  30 TAC sec.sec.335.152, 335.155, 335.166-335.168, 335.173 
 
  The amendments are adopted pursuant to the Texas Water Code, sec.5.103 and 
sec.5.105, which authorizes the Texas Natural Resource Conservation Commission 
to promulgate rules necessary to carry out the powers and duties under the 
provisions of the Texas Water Code and other laws of this state, and pursuant to 
the Texas Health and Safety Code, sec.361.017 and sec.361.024, which further 
authorizes the Texas Natural Resource Conservation Commission to promulgate 
rules necessary to manage industrial solid and municipal hazardous wastes. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on November 1, 1993. 
 TRD-9331370 
  Mary Ruth Holder 
 Director, Legal Division 
 Texas Natural Resource Conservation Commission 
    Effective date: November 23, 1993 
 Proposal publication date: August 10, 1993 
 For further information, please call: (512) 463-8069 
         
         
  Subchapter H. Standards for the Management of Specific Wastes and Specific 
Types of Facilities 
 
  Recyclable Materials Used in a Manner Constituting Disposal 
 
  30 TAC sec.335.211 
 
  The amendment is adopted pursuant to the Texas Water Code, sec.5.103 and 
sec.5.105, which authorizes the Texas Natural Resource Conservation Commission 
to promulgate rules necessary to carry out the powers and duties under the 
provisions of the Texas Water Code and other laws of this state, and pursuant to 
the Texas Health and Safety Code, sec.361.017 and sec.361.024, which further 
authorizes the Texas Natural Resource Conservation Commission to promulgate 
rules necessary to manage industrial solid and municipal hazardous wastes. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on November 1, 1993. 
 TRD-9331371 
  Mary Ruth Holder 
 Director, Legal Division 
 Texas Natural Resource Conservation Commission 
    Effective date: November 23, 1993 
 Proposal publication date: August 10, 1993 
 For further information, please call: (512) 463-8069 
         
         
  Hazardous Waste Burned for Energy Recovery 
 
  30 TAC sec.335.224 
 
  The amendment is adopted pursuant to the Texas Water Code, sec.5.103 and 
sec.5.105, which authorizes the Texas Natural Resource Conservation Commission 
to promulgate rules necessary to carry out the powers and duties under the 
provisions of the Texas Water Code and other laws of this state, and pursuant to 
the Texas Health and Safety Code, sec.361.017 and sec.361.024, which further 
authorizes the Texas Natural Resource Conservation Commission to promulgate 
rules necessary to manage industrial solid and municipal hazardous wastes. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on November 1, 1993. 
 TRD-9331372 
  Mary Ruth Holder 
 Director, Legal Division 
 Texas Natural Resource Conservation Commission 
    Effective date: November 23, 1993 
 Proposal publication date: August 10, 1993 
 For further information, please call: (512) 463-8069 
         
           
  Subchapter O. Land Disposal Restrictions 
 
  30 TAC sec.335.431 
 
  The repeal is adopted pursuant to the Texas Water Code,  sec.5.103 and sec.5. 
105, which authorizes the Texas Natural Resource Conservation Commission to 
promulgate rules necessary to carry out the powers and duties under the 
provisions of the Texas Water Code and other laws of this state, and pursuant to 
the Texas Health and Safety Code, sec.361.017 and sec.361.024, which further 
authorizes the Texas Natural Resource Conservation Commission to promulgate 
rules necessary to manage industrial solid and municipal hazardous wastes. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on November 1, 1993. 
 TRD-9331374 
  Mary Ruth Holder 
 Director, Legal Division 
 Texas Natural Resource Conservation Commission 
    Effective date: November 23, 1993 
 Proposal publication date: August 10, 1993 
 For further information, please call: (512) 463-8069 
         
     
  The new section is adopted pursuant to the Texas Water Code, sec.5.103 and 
sec.5.105, which authorizes the Texas Natural Resource Conservation Commission 
to promulgate rules necessary to carry out the powers and duties under the 
provisions of the Texas Water Code and other laws of this state, and pursuant to 
the Texas Health and Safety Code, sec.361.017 and sec.361. 024, which further 
authorizes the Texas Natural Resource Conservation Commission to promulgate 
rules necessary to manage industrial solid and municipal hazardous wastes. 
 
 
  sec.335.431. Purpose, Scope, and Applicability. 
 
  (a) Purpose. The purpose of this subchapter is to identify hazardous wastes 
that are restricted from land disposal and define those limited circumstances 
under which an otherwise prohibited waste may continue to be land disposed. 
   
  (b)  Scope and Applicability. 
 
  (1) Except as provided in paragraph (2) of this subsection, the requirements 
of this subchapter apply to persons who generate or transport hazardous waste 
and owners and operators of hazardous waste processing, storage, and disposal 
facilities. 
   
  (2) The requirements of this subchapter do not apply to any entity that is 
either specifically excluded from coverage by this subchapter or would be 
excluded from the coverage of 40 Code of Federal Regulations (CFR), Part 268 by 
40 CFR, Part 261, if those parts applied. 
     
  (c) Adoption by Reference. 
 
  (1)  Except as provided in paragraph (2) of this subsection, and subject to 
the changes indicated in subsection (d) of this section, the regulations 
contained in 40 CFR, Part 268, as amended through June 26, 1992, in (57 FedReg 
29632), are adopted by reference. 
   
  (2) The following sections of 40 CFR, Part 268 are excluded from the sections 
adopted in paragraph (1) of this subsection: sec.sec.268.5, 268.6, 268.7(a)(10), 
268.10-268.13, 268.42(b), and 268.44. 
   
  (3) Appendices I-IX of 40 CFR, Part 268 are adopted by reference as amended 
through June 26, 1992, in (57 FedReg 29632). 
     
  (d) Changes to Adopted Parts. The parts of the CFR that are adopted by 
reference in subsection (c) of this section are changed as follows. 
 
  (1) The words "Administrator" or "Regional Administrator" are changed to 
"Executive Director. " 
   
  (2) The word "treatment" is changed to "processing." 
   
  (3)  The words "Federal Register ," when they appear in the text of the 
regulation, are changed to "Texas Register." 
   
  (4) In sec.sec.268.7 (a)(6) and (a)(7), the applicable definition of hazardous 
waste and solid waste is the one that is set out in 30 TAC Chapter 335 rather 
than the definition of hazardous waste and solid waste that is set out in 40 
CFR, Part 261. 
   
  (5) In sec.268.501(a)(1), the citation to "sec.262.34" is changed to 
"sec.335.69." 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on November 1, 1993. 
 TRD-9331373 
  Mary Ruth Holder 
 Director, Legal Division 
 Texas Natural Resource Conservation Commission 
    Effective date: November 23, 1993 
 Proposal publication date: August 10, 1993 
 For further information, please call: (512) 463-8069 
         
               
  Subchapter R. Waste Classification 
 
  30 TAC sec.335.504 
 
  The amendment is adopted pursuant to the Texas Water Code, sec.5.103 and 
sec.5.105, which authorizes the Texas Natural Resource Conservation Commission 
to promulgate rules necessary to carry out the powers and duties under the 
provisions of the Texas Water Code and other laws of this state, and pursuant to 
the Texas Health and Safety Code, sec.361.017 and sec.361.024, which further 
authorizes the Texas Natural Resource Conservation Commission to promulgate 
rules necessary to manage industrial solid and municipal hazardous wastes. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on November 1, 1993. 
 TRD-9331375 
  Mary Ruth Holder 
 Director, Legal Division 
 Texas Natural Resource Conservation Commission 
    Effective date: November 23, 1993 
 Proposal publication date: August 10, 1993 
 For further information, please call: (512) 463-8069 
         
               
  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) adopts new sec.503.1, establishing the 
boundary of the Texas Coastal Management Program (CMP), with changes to the 
proposed text as published in the June 11, 1993, issue of the Texas Register  
(18 TexReg 3660). 
 On June 7, 1992, Governor Ann Richards formally notified the United States 
Department of Commerce that Texas intended to submit its CMP for approval and 
funding under the federal Coastal Zone Management Act (CZMA). Section 306(d)(2) 
(A) of the CZMA requires that the CMP identify the boundaries of the program. 
The CZMA regulations require that the boundary include four elements: the inland 
boundary, the seaward boundary, areas excluded from the boundary, and interstate 
boundaries. Of these four elements, only the location of the inland boundary is 
subject to any significant administrative discretion. The other three elements 
simply refer to recognized boundaries. Thus, the central focus of the legal and 
factual record supporting this rule is on the proper location of the inland 
boundary. 
 The CZMA regulations require that the inland boundary include "those areas the 
management of which is necessary to control uses which have direct and 
significant impacts on coastal waters" (15 C.F.R., sec.923.31(a)(1)). There are 
other statutory criteria. For instance, the regulations also require that the 
boundary include all waters under saline influence, beaches, islands, salt 
marshes, wetlands, and transitional and intertidal areas and that it be drawn in 
such a manner as to be easily recognizable. 
 The critical issue for purposes of gaining federal approval is whether the 
inland boundary leaves out any areas necessary to control uses having direct and 
significant impacts on coastal waters. The CCC has determined, in the exercise 
of its best professional judgement, after having reviewed the technical 
information gathered and presented by the Coastal Management Division staff of 
the General Land Office, and assisted by the staff of other state resource 
agencies, that while there may be activities outside the inland boundary that 
have some impact on coastal resources, those activities do not at the present 
time directly and significantly impact coastal waters. 
 While the paramount purpose of this rule is to establish a boundary that 
satisfies federal requirements, the boundary is also intended to serve the 
broader purposes of the Texas Coastal Coordination Act, which is intended to 
address actions that may adversely affect coastal natural resource areas, not 
just activities having direct and significant impacts on coastal waters. The 
boundary, therefore, includes the vast majority of those actions that adversely 
affect coastal natural resource areas and will provide a significant degree of 
assurance to the public, state agencies, and political subdivisions that most 
proposed actions located outside the boundary will not be subject to the CMP. In 
order to provide even greater certainty, the CCC intends to establish and adopt 
as part of its rules a list of those actions outside the boundary that will be 
subject to the CMP. 
 As part of its process of identifying and evaluating those activities that 
generate direct and significant impacts on coastal waters, the CCC established 
an Interagency Coastal Area Boundary Work Group, consisting of representatives 
from the Texas General Land Office, the Texas Railroad Commission, the Texas 
Department of Transportation, the Texas Water Commission, the Texas Department 
of Agriculture, the Texas Parks and Wildlife Department, the Office of the 
Attorney General, and the Texas Water Development Board. The Work Group began by 
reviewing activities within a planning and study area that encompassed 33 
counties. The Work Group then focused on three options for a boundary: (1) all 
counties with tidewater shoreline (first-tier counties), (2) all first- and 
second-tier counties, and (3) all counties included within the coastal 
watersheds. Over time, the Work Group narrowed its focus to an inland boundary 
that included all first-tier counties plus four second-tier counties: Hidalgo, 
Fort Bend, Jasper, and Newton. All other second-tier counties were determined at 
that time not to include activities having direct and significant impacts on 
coastal waters. 
 In conducting its analysis and making its recommendations, the Work Group 
evaluated numerous activities, including the number and volume of municipal and 
industrial wastewater discharges, the number of municipal solid waste 
facilities, the number of facilities filing Toxic Release Inventory Reports, the 
number of federally-listed superfund sites, and the existence of legal and 
illegal municipal solid waste landfills and dumps. Other indicators the Work 
Group examined were population densities and trends, water diversions, 
subsidence, water quality, nonpoint-source pollution problems, and levels of 
industrial activities. 
 At its meeting in April, the State Agency Task Force reviewed the Work Group's 
findings and recommended a proposed boundary that included all first-tier 
counties plus Fort Bend and Hidalgo counties. The State Agency Task Force also 
recommended that Jasper and Newton counties be further evaluated and the results 
presented to the Executive Committee of the CCC. 
 At its April meeting, the Executive Committee reviewed the information 
presented by the Work Group and the State Agency Task Force. The Executive 
Committee recommended that the proposed boundary not include Jasper and Newton 
counties, but instead include all first-tier counties plus Fort Bend and Hidalgo 
counties. 
 In June the CCC reviewed the findings and recommendations of the Executive 
Committee and voted to propose a boundary that included all first-tier counties 
plus Fort Bend and Hidalgo counties. After reviewing the record and public 
comment developed through five public hearings, the CCC reexamined the boundary 
proposal in September. The CCC decided that activities in Fort Bend and Hidalgo 
counties did not at this time directly and significantly impact coastal waters. 
The CCC, therefore, moved to adopt an inland boundary that includes only those 
counties with tidewater shoreline: Cameron, Willacy, Kenedy, Kleberg, Nueces, 
San Patricio, Aransas, Refugio, Calhoun, Victoria, Jackson, Matagorda, Brazoria, 
Galveston, Harris, Chambers, Liberty, Jefferson, and Orange. 
 The structure of the rule comports with the federal regulations. Subsection 
503.1(a) provides a general description of the boundary, while subsection 503. 
1(b) divides the boundary into its component elements: 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. The inland boundary is 
established with reference to county lines. The use of county lines is 
specifically approved by the federal regulations and provides effective and fair 
notice to the public. A map depicting the inland boundary accompanies this rule. 
 The public comment period closed on August 10, 1993. The CCC received 154 
written comments on the proposed boundary. Five public hearings were held along 
the coast. The hearings took place in Port Arthur, Sugar Land, Victoria, Corpus 
Christi, and McAllen. Seventeen people presented oral testimony at the public 
hearings. Not all of the comments were directed at the boundary; some raised 
issues beyond the scope of this rule. Generally, these comments raised questions 
about the policies of the CMP, which will be the subject of later rulemaking and 
public comment. 
 Most comments came from residents of Fort Bend County opposing the inclusion of 
Fort Bend. Several commenters recommended that the CCC draw the inland boundary 
along the Oil Spill Prevention and Response Act's Coastal Facility Designation 
Line (OSPRA line, found at 31 TAC sec.19.2); others recommended various setback 
distances from coastal waters. Some commenters suggested expanding the inland 
boundary to include more counties or to include entire watersheds. Some 
expressed general opposition to the boundary, offering no specific 
recommendation. Others expressed support for the boundary as proposed. All the 
material issues raised by the commenters are identified and responded to below. 
 The groups and associations in support of the proposed rule and their positions 
were the Texas Chemical Council, the Galveston Bay National Estuary Program, 
Ekistics Corporation, the East Matagorda Bay Foundation, the Coastal Bend Sierra 
Club, the Galveston Bay Foundation, the Nueces County Coastal Management 
Committee, the Frontera Audubon Society, the San Jacinto River Association, and 
the Coastal Bend Environmental Coalition. 
 In opposition because boundary included too large an area were Mischer 
Corporation, Texas Mid-Continent Oil & Gas Association, Greater Fort Bend 
Economic Development Council, Texas and Southwestern Cattle Raisers Association, 
Texas Department of Agriculture, Texas Citrus Mutual, Brazos River Authority, 
Fort Bend County Commissioners Court, City of Sugar Land, The Chamber, Chachere-
Council-Covell Insurance Services, Inc., Precision Collision, Trione & Gordon, 
The Gustafson Group, Inc., King Ranch, Inc., Fort Bend Independent School 
District, Matagorda County Water Council, Imperial Business Services, Imperial 
Sugar Company, Sugar Land Telephone, the City of Sugar Land, Friendship 
Cottages, Inc., Hartman Newspapers, Inc., Champion Technologies, Inc., E.E. Reed 
Construction Company, Fort Bend MUD #2, Highland Resources, Inc., Houston 
Southwest Airport, Markborough Development Company, Ltd., the City of Missouri, 
Ryland Homes, Southwestern Bell Telephone of Texas, Stewart Title, Sugar Land 
Plaza Building Corporation, Sugarland Properties Incorporated, Enron Pipeline & 
Liquids Group, the City of Houston, the City of Richmond, Fort Bend Chamber of 
Commerce, Society of Independent Professional Earth Scientists, Corpus Christi 
Geological Society, Texas Independent Producers and Royalty Owners' Association, 
Mueller Engineering Corporation, Dixie Exploration Company, Victoria County Soil 
and Water Conservation District, B & S Exploration, Inc., Shell Western E & P, 
Lundberg Operating Corporation, and the City of Rosenberg. 
 In opposition because boundary included too small an area were the Sierra Club, 
Lone Star Chapter; and the National Marine Fisheries Service, Southwest Regional 
Office. 
 Commenters who were neutral included the Department of the Navy, the General 
Services Administration, the U.S. Fish and Wildlife Service, and the Texas 
Association of Regional Councils. 
 Most commenters raised questions about and opposed the inclusion of Fort Bend 
County within the boundary. Several commenters voiced support for the inclusion 
of Fort Bend. Some commenters also objected to the inclusion of Hidalgo County, 
while others supported its inclusion. The CCC voted to remove both Fort Bend and 
Hidalgo counties from the boundary and this rule has been changed accordingly. 
 Fort Bend and Hidalgo counties were the only two counties included within the 
proposed boundary not having any coastal waters. Whereas the CCC determined that 
all first-tier counties included areas necessary to control uses having direct 
and significant impacts on coastal waters, the same conclusion could not be 
reached for Fort Bend and Hidalgo counties. There was significant debate among 
the staff of the CCC member agencies as well as among CCC members themselves 
whether the level of activities in Fort Bend and Hidalgo counties contributed 
"directly and significantly" to impacts on coastal waters. While acknowledging 
that some impacts on coastal waters were associated with activities in Fort Bend 
and Hidalgo counties, the CCC determined that those impacts were, at the present 
time, too indirect and diffuse to justify the inclusion of these two inland 
counties within the boundary. 
 Several commenters urged that the boundary be established further inland. One 
urged that the boundary include Starr County. One questioned why the boundary 
did not include Montgomery County. Other commenters urged the consideration of 
Wharton, Waller, and Hardin counties. Still others suggested including entire 
watersheds or river corridors. Some of these alternatives raise valid concerns. 
The CCC determined, after examining the evidence, that of all the counties 
inland of the first tier of counties, only Fort Bend and Hidalgo deserved 
further consideration for inclusion within the boundary. The CCC concluded that 
the activities in these two counties, when compared with the other interior 
counties, presented the greatest potential source of impacts to coastal waters. 
Ultimately, the CCC decided that activities in these two inland counties did not 
warrant their inclusion within the boundary. 
 Several commenters suggested that the CCC adopt the OSPRA line as the inland 
boundary. Another suggested using the segment identification maps for Texas 
river and coastal basins, which, like the OSPRA line, would limit the coastal 
management area to the inland reach of tidal influence. The OSPRA line is 
legally inadequate because it does not, and was not intended to, encompass all 
the uses which have a direct and significant impact on coastal waters. The OSPRA 
line's location is governed solely by the location of terminal facilities from 
which an oil spill represents a threat to coastal waters (in some cases, only 
facilities located within 100 yards of coastal waters are considered to present 
such a threat). The CZMA demands a much broader consideration of uses impacting 
coastal waters than just threats of oil spills from terminal facilities. The 
inland boundary of the CMP includes all uses having a direct and significant 
impact on coastal waters, not just terminal facilities. 
 Large wastewater discharges located upriver from the OSPRA line, for example, 
can have direct and significant impacts on coastal waters. The OSPRA line is 
drawn across the inlandmost reach of coastal waters. While the OSPRA line 
extends 100 yards on either side of the banks of each tidal segment, it does not 
provide any buffer in the upstream direction. Because the OSPRA line in essence 
stops at the inland reach of coastal waters, it does not include uses upstream 
that have a direct and significant impact on coastal waters. Thus, the OSPRA 
line fails to include those areas required by federal law. 
 Because the OSPRA line is irregular, it is also uncertain whether it would 
satisfy the federal requirement that the inland boundary be easily recognizable 
to the general public. The OSPRA line divides the first-tier counties; it 
follows nine different highways and eight different farm-to-market roads. It 
also includes numerous "fingers" reaching further inland along 13 tidal river 
segments and extending 100 yards on either side of the banks of these segments. 
While public roadways provide reasonably good notice, the "fingers" would 
greatly reduce the general public's ability to determine readily whether they 
were inside or outside the OSPRA line. That line was designed to regulate one 
specific activity and it provides fair notice to those in the regulated 
industry. It was never intended, and is poorly suited, to provide fair notice to 
the general public. In contrast, it is certain that an inland boundary based on 
county lines satisfies both the goal of APTRA that Texas agency rules provide 
fair notice to the public as well as the federal requirement that the boundary 
be easily recognizable. 
 Several commenters questioned why the inland boundary did not comport with the 
federal definition of the "coastal zone" at sec.304(1) of the CZMA and cited 
language in the definition that reads: "The zone extends inland from the 
shorelines only to the extent necessary to control shorelands, the uses of which 
have a direct and significant impact on the coastal waters." The CCC determined 
that to effectively control those areas the uses of which directly and 
significantly impacted coastal waters, it would be necessary to establish the 
inland boundary along easily identified and administratively complete 
boundaries. This is why the inland boundary follows county lines. Nearly one 
third of the federally-approved coastal programs use county lines. 
 Several commenters suggested using various setback distances. Some suggested 
establishing the boundary one mile inland from the shoreline. One commenter 
suggested establishing it 150 feet from mean high-water and the same distance 
from the centerline of streams and rivers. Another commenter suggested only 
including the shorelines of beaches, bays, and lagoons. These alternatives 
presented similar problems. They would each create a highly irregular boundary 
that would make it difficult for the public to know whether they were located 
inside or outside the boundary. It is uncertain whether such alternatives would 
satisfy the federal requirements. Also, for purposes of effective administration 
of the program, the CCC determined that it would be necessary to follow 
recognized political boundaries. 
 One commenter suggested using U.S. Highways 77, 59, and 90 as the inland 
boundary, at least for the lower half of the coast. While this alternative is 
superior to the suggested setbacks in terms of notice to the public, the use of 
these highways would create new divisions within several counties and cities and 
impair effective administration of the program. 
 Several commenters requested that the proposed rule be withdrawn or that the 
adoption of the rule be delayed. The CCC has devoted substantial time and 
resources to identifying the proper location of the boundary. The geography of 
the Texas coast presents a finite number of possible ways to delineate the 
boundary. Boundary options and issues have been exhaustively discussed at five 
public hearings, nine Executive Committee meetings, and four CCC meetings. 
Numerous task forces and work groups have met on this issue. At this time the 
CCC does not believe any public purpose would be served by devoting any further 
time and resources towards establishing the boundary. The CCC is in possession 
of adequate technical and legal information on the boundary options; the public 
has commented; the CCC is now exercising its statutory duty to fix the boundary. 
 The CCC has not foreclosed the possibility of reexamining the boundary if new 
and convincing information arises suggesting that the boundary should be 
adjusted. Moreover, recent amendments to the CZMA relating to the development 
and implementation of a coastal nonpoint pollution control program may require 
that the CCC reexamine the boundary. It is important to note, however, that 
these recent amendments will not necessarily require adjustment of the inland 
boundary. 
 One commenter requested that the boundary exclude certain large, private 
landholdings located within first-tier counties, including substantial acreage 
fronting on coastal waters. The CCC chose to reject this request because to 
grant it would jeopardize federal approval of the program. To adjust the 
boundary in such a manner would exclude activities having direct and significant 
impacts on coastal waters. 
 One commenter recommended that the boundary include only that portion of Harris 
County within two miles of the coast. In the alternative, this same commenter 
requested that the boundary exclude all of the City of Houston, including the 
area within its extraterritorial jurisdiction. Activities within the City of 
Houston, including activities further inland than two miles from the coast, 
contribute directly and significantly to the quality of Texas coastal waters. An 
inland boundary that did not include the City of Houston would likely frustrate 
the CCC's goal of achieving federal approval of the program. 
 The section is adopted under 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 Coastal Management Program Boundary. The 
coastal management program boundary encompasses all the area within the 
following Texas counties: Cameron, Willacy, Kenedy, Kleberg, Nueces, San 
Patricio, Aransas, Refugio, Calhoun, Victoria, Jackson, Matagorda, Brazoria, 
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 U.S.C., sec.1301 et seq), or three 
marine leagues. 
   
  (b) Particular description of the Coastal Management Program 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 westernmost 
intersection of Cameron County and the border with the Republic of Mexico; 
thence it continues in a northerly direction along the Cameron County line until 
it meets the Willacy County line; thence in an northerly direction along the 
Willacy 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 Harris 
County line; thence in a northeasterly direction along the Harris County line 
until it meets the Waller County line; thence in a northerly direction along the 
Waller 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 U.S. 
702 (1973); thence it continues 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 
U.S.C., sec.1301 et seq.), as recognized by the United States Supreme Court in 
United States v.  Louisiana et al., 364 U.S. 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 U. S.C., 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 it continues in a westerly 
direction along the international border with the Republic of Mexico until it 
meets that point on the border marking the westernmost intersection of Cameron 
County. 
   
  (5)  The excluded federal lands. The excluded federal lands are those lands 
owned, leased, held in trust by, 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 rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on November 1, 1993. 
 TRD-9331279 
  Garry Mauro 
 Commissioner 
 Texas General Land Office 
    Effective date: November 19, 1993 
 Proposal publication date: June 11, 1993 
 For further information, please call: (512) 463-5009 
         
           
  TITLE 34. PUBLIC FINANCE 
 Part I. Comptroller of Public Accounts 
  Chapter 7. Administration of State Lottery Act 
  
  Subchapter D. Lottery Game Rules 
 
  34 TAC sec.7.307 
 
  The Comptroller of Public Accounts adopts new sec.7.307, concerning "Pick 3" 
on-line game rules, with changes to the proposed text as published in the 
September 14, 1993, issue of the  Texas Register (18 TexReg 6195). The changes 
were made to clarify the rules. 
 The purpose of the new section is to provide specific game details and 
requirements for the Texas Lottery's on-line game "Pick 3," such as type of 
play, prizes, method of selecting winning numbers, drawings, and the allocation 
of revenues. 34 TAC  sec.sec.7.304 and sec.7.305 have been amended to include 
the addition of "Pick 3." 
 No comments were received regarding adoption of the amendment. 
 The new section is adopted under the State Lottery Act,  sec.2.02, which 
provides the comptroller with the authority to adopt all rules necessary to 
administer the State Lottery Act. The new section implements the State Lottery 
Act, sec.2.02. 
 
 
  sec.7.307. "Pick 3" On-Line Game Rule. 
 
  (a) Pick 3. A Texas Lottery on-line game to be known as "Pick 3" is authorized 
to be conducted by the director under the following rules and under such further 
instructions and directives as the director may issue in furtherance thereof. If 
a conflict arises between this section and sec.7.304 of this title (relating to 
On-Line Game Rules (General)), this section shall have precedence. 
   
  (b) Definitions. In addition to the definitions provided in sec.7.304 of this 
title (relating to On-Line Game Rules (General)), and unless the context in this 
section otherwise requires, the following definitions apply. 
 
  (1) Advance Play-A player may purchase a Pick 3 ticket for any of the five 
Pick 3 drawings immediately following the current drawing. Example: On Monday, 
before the drawing, a Pick 3 ticket can be purchased for the Tuesday, Wednesday, 
Thursday, Friday, or Saturday drawings. 
   
  (2) Multi Draw-A player may purchase a Pick 3 ticket for 12 consecutive draws 
beginning with the current draw. 
   
  (3) Number-Any play integer from 0 through nine inclusive. 
   
  (4) Play-The three numbers selected on each play board and printed on the 
ticket. 
   
  (5) Play board-An area of a playslip which is marked by the player to select 
the type of play, the numbers to play, and the amount of the play. 
   
  (6) Playslip-An optically readable card issued by the Texas Lottery used by 
players of Pick 3 to select plays. There shall be five play boards on each 
playslip identified as A, B, C, D, and E. A playslip has no pecuniary value and 
shall not constitute evidence of ticket purchase or of numbers selected. 
     
  (c) Price of ticket. The price of each Pick 3 play shall be a minimum of $ 
.50. A player may play $ .50, $1.00, $2.00, $3.00, $4.00, or $5.00 on each play. 
A player may purchase up to five plays on one ticket. 
   
  (d) Play for Pick 3. 
 
  (1) Type of play. A Pick 3 player must select three numbers, each from 0 
through nine, and type of play for each play. The Texas Lottery reserves the 
right, at the discretion of the director, to allow or discontinue any of the 
following play types. 
 
  (A) Exact Order. A three-digit number selected by the player which shall match 
the three-digit number drawn by the Texas Lottery in the exact order. 
   
  (B) Any Order 3-way. A three-digit number selected by the player with two 
numbers the same, such as 122, which shall match the three-digit number drawn by 
the Texas Lottery in any order. 
   
  (C) Any Order 6-way. A three-digit number selected by the player with all 
three numbers different, such as 789, which shall match the three-digit number 
drawn by the Texas Lottery in any order. 
   
  (D) Exact/Any Order 3-way. A three-digit number selected by the player with 
two numbers the same, such as 377, which shall match the three-digit number 
drawn by the Texas Lottery in the exact order or in any order. 
   
  (E) Exact/Any Order 6-way. A three-digit number selected by the player with 
all three numbers different, such as 159, which shall match the three-digit 
number drawn by the Texas Lottery in the exact order or in any order. 
   
  (F) Combo 3-way. A three-digit number selected by the player with two numbers 
the same, such as 466, which shall match the three-digit number drawn by the 
Texas Lottery in any of the three possible exact order combinations. Cost will 
be three times one play. This play-type selection is the equivalent of picking 
three sets of numbers. 
   
  (G) Combo 6-way. A three-digit number selected by the player with all three 
numbers different, such as 872, which shall match the three-digit number drawn 
by the Texas Lottery in any of the six possible exact order combinations. Cost 
will be six times one play. This play-type selection is the equivalent of 
picking six sets of numbers. 
     
  (2) Method of play. The player will use playslips to make number selections. 
The on-line terminal will read the playslip and issue ticket(s) with 
corresponding plays. If a playslip is not available, the on-line retailer may 
enter the selected numbers, play type, and play amount via the keyboard. 
However, the retailer shall not accept telephone or mail-in requests to manually 
enter selected numbers through the keyboard. A player may leave all number 
selections to a random number generator operated by the computer, referred to as 
"Quick Pick," provided the player must still select the type of play. 
   
  (3) One prize per play. The holder of a winning ticket may win only one prize 
per play in connection with the winning numbers drawn. 
     
  (e) Prizes for Pick 3. 
 
  (1) Prize amounts. The prize amounts, for each drawing, paid to each Pick 3 
player who selects a matching combination of numbers will be guaranteed amounts. 
Prize amounts are set forth in subsection (f) of this section. 
   
  (2) At the discretion of the director, a prize amount may be altered 
temporarily for marketing or promotional purposes. 
   
  (3) Prize pool. The prize pool for Pick 3 prizes shall be 50% of Pick 3 sales. 
The prize pool percentage may vary since all prize amounts are guaranteed. 
   
  (4) Prize reserve fund. 
 
  (A) The prize reserve fund may be increased or decreased by amounts paid to 
winners or prizes not claimed within the 180-day claim period. 
   
  (B) In the event any player who has a valid winning ticket does not claim the 
prize within 180 days after the drawing in which the prize was won, the prize 
amount shall be added to the prize reserve fund and all rights to the prize 
shall terminate. 
   
  (C) The prize reserve fund may be decreased by any amounts paid to winners, 
due to the guaranteed prize amounts. For example, money may be allocated from 
the prize reserve fund to the Pick 3 prize pool if the prize liability is 
greater than the 50% prize pool. 
       
  (f) Odds of winning. The following table sets forth the odds of winning in 
each prize category, based upon the total number of possible combinations of 
three numbers played in a field of 1,000 combinations. The prize amount for a $ 
.50 play in any of the listed prize categories is half as much as the prize 
amount for a $1.00 play. 
 
  [graphic] 
   
  (g) Ticket Purchases. 
 
  (1) Pick 3 tickets may be purchased only at a licensed location from a lottery 
retailer authorized by the lottery director to sell on-line tickets. 
   
  (2) Pick 3 tickets shall show the player's selection of numbers, play type, 
play amount, play boards played, drawing date(s), and validation and reference 
numbers. 
   
  (3) It shall be the exclusive responsibility of the player to verify the 
accuracy of the player's selection(s), amount, draw date(s) and other data 
printed on the ticket. A ticket is a bearer instrument until signed. 
   
  (4) Except as provided in subsection (d)(2) of this section, Pick 3 tickets 
must be purchased using official Pick 3 playslips. Playslips which have been 
mechanically completed are not valid. Pick 3 tickets must be printed on official 
Texas Lottery paper stock and purchased at a licensed location through an 
authorized Texas Lottery retailer's on-line terminal. 
     
  (h) Cancellations. 
 
  (1) A Pick 3 ticket may be canceled by the selling retailer only if the 
following occur: 
 
  (A) the retailer has the actual Pick 3 ticket in their possession; 
   
  (B) the Pick 3 ticket is canceled at the selling retailer; 
   
  (C) the ticket is canceled no later than 60 minutes since the ticket was 
issued/purchased; 
   
  (D) the ticket is canceled before the draw break on the day the ticket was 
issued/purchased; 
   
  (E) no drawing applicable to the ticket has previously been held. 
     
  (2) The canceled receipt that is produced by the terminal when a ticket is 
canceled shall be kept with the original Pick 3 ticket that was canceled and 
retained by the retailer for at least 30 days. 
     
  (i) Drawings. 
 
  (1) The Pick 3 drawings shall be held each week on Monday, Tuesday, Wednesday, 
Thursday, Friday, and Saturday evenings at 9:59 p.m. Central Time except that 
the drawing schedule may be changed by the director, if necessary. 
   
  (2) Pick 3 tickets will not be sold from 9:45 p.m. Central Time until 10:01 
p.m. Central Time on drawing days. 
   
  (3) The drawings will be conducted by lottery officials. 
   
  (4) Each drawing shall determine, at random, three winning numbers in 
accordance with Pick 3 drawing procedures. Any numbers drawn are not declared 
winning numbers until the drawing is certified by the lottery in accordance with 
the drawing procedures. The winning numbers shall be used in determining all 
Pick 3 winners for that drawing. 
   
  (5) Each drawing shall be witnessed by an independent certified public 
accountant. All drawing equipment used shall be examined by at least one lottery 
security representative, the drawing supervisor, and the independent certified 
public accountant immediately prior to a drawing and immediately after the 
drawing. 
   
  (6) A drawing will not be invalidated based on the financial liability of the 
lottery. 
     
  (j) Announcement of incentive or bonus program. The lottery director shall 
announce each incentive or bonus program prior to its commencement. The 
announcement shall specify the beginning and ending time, if applicable, of the 
incentive or bonus program and the value for the award(s). 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on November 2, 1993. 
 TRD-9331358 
  Arthur F. Lorton 
 Senior Legal Counsel 
 Comptroller of Public Accounts 
    Effective date: November 23, 1993 
 Proposal publication date: September 8, 1993 
 For further information, please call: (512) 463-4028 
         
                   
  TITLE 37. PUBLIC SAFETY AND CORRECTIONS 
 Part I. Texas Department of Public Safety 
  Chapter 16. Commercial Driver's License 
  
  Licensing Requirements, Qualifications, Restrictions, and Endorsements 
 
  37 TAC sec.sec.16.2, 16.3, 16.13 
 
  The Texas Department of Public Safety adopts amendments to sec.16.2, sec.16. 
3, and new sec.16.13, concerning licensing requirements, qualifications, 
restrictions, and endorsements, without changes to the proposed text as 
published in the September 17, 1993, issue of the Texas Register  (18 TexReg 
6293). 
 The adoption of these sections will allow a person who is employed by a farm-
related service industry to obtain a restricted commercial driver's license 
(CDL) without having to pass the more stringent CDL knowledge and skills test. 
To ensure the public is aware of an additional exempt group of drivers under the 
commercial driver's license law and for determining if a vehicle is a commercial 
motor vehicle. 
 Amendment to sec.16.2 formats existing language as subsection (a) and adds 
subsection (b) relating to gross combination weight rating and gross vehicle 
weight rating for determining if a vehicle is a commercial motor vehicle for 
enforcement purposes and commercial driver's license testing. Amendment to 
sec.16.3 adds paragraph (5) relating to the exemption of vehicles owned, leased, 
or controlled by an air carrier and driven or operated exclusively by an 
employee of the air carrier only on the premises of the airport. Section 16.13 
is proposed as a new section relating to farm-related service industry waiver. 
The department is promulgating policies and procedures to issue restricted 
commercial driver's licenses to certain farm-related service industry drivers. 
 No comments were received regarding adoption of these amendments and new 
section. 
 The amendments and new section are adopted under Texas Civil Statutes, Article 
6687b-2, sec.29 and Article 6687b, sec.1A, which provide the Texas Department of 
Public Safety with the authority to adopt rules and regulations necessary to 
carry out the provisions of the Texas Driver's License Act, Texas Commercial 
Driver's License Act, and the Federal Commercial Motor Vehicle Safety Act of 
1986. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on October 21, 1993. 
 TRD-9331173 
  James R. Wilson 
 Director 
 Texas Department of Public Safety 
    Effective date: November 18, 1993 
 Proposal publication date: September 17, 1993 
 For further information, please call: (512) 465-2000 
         
         
  Application Requirements and Examinations 
 
  37 TAC sec.16.32 
 
  The Texas Department of Public Safety adopts an amendment to sec.16.32, 
concerning application requirements and examinations, without changes to the 
proposed text as published in the September 17, 1993, issue of the Texas 
Register  (18 TexReg 6293). 
 The adoption of the amendment will allow a person who is employed by a farm-
related service industry to obtain a restricted commercial driver's license 
(CDL) without having to pass the more stringent CDL knowledge and skills test. 
 The amendment to this section formats existing language as subsection (a). 
Subsection (b) is added as new language promulgating form CDL-1F as supplemental 
application for farm-related service industry (FRSI) restricted Commercial 
Driver's License (CDL). This application must be completed by all applicants for 
an FRSI restricted CDL. 
 No comments were received regarding adoption of the amendment. 
 The amendment is adopted under Texas Civil Statutes, Article 6687b-2, sec.29 
and Article 6687b, sec.1A, which provide the Texas Department of Public Safety 
with the authority to adopt rules and regulations necessary to carry out the 
provisions of the Texas Driver's License Act, the Texas Commercial Driver's 
License Act, and the Federal Commercial Motor Vehicle Safety Act of 1986. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on October 21, 1993. 
 TRD-9331174 
  James R. Wilson 
 Director 
 Texas Department of Public Safety 
    Effective date: November 18, 1993 
 Proposal publication date: September 17, 1993 
 For further information, please call: (512) 465-2000 
         
             Part V. Texas Board of Pardons and Paroles 
  Chapter 143. Executive Clemency 
  
  Conditional Pardon 
 
  37 TAC sec.143.23 
 
  The Texas Board of Pardons and Paroles adopts the repeal of sec.143.23, 
concerning executive clemency: conditional pardon, without changes to the 
proposed text as published in the September 28, 1993, issue of the Texas 
Register  (18 TexReg 6630). 
 The justification for the section is to comply with new statutory law. 
 The section will function by authorizing the Board of Pardons and Paroles to 
delete obsolete statutory language. 
 No comments were received regarding adoption of the repeal. 
 The repeal is adopted under the Texas Code of Criminal Procedure, Article 
42.18, sec.8(g), which provides the Board of Pardon and Paroles with the 
authority to adopt such reasonable rules not inconsistent with law as it may 
deem necessary. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on November 1, 1993. 
 TRD-9331428 
  Michael F. Miller 
 General Counsel 
 Texas Board of Pardons and Paroles 
    Effective date: November 23, 1993 
 Proposal publication date: September 28, 1993 
 For further information, please call: (512) 406-5613 
         
     
  The Texas Board of Pardons and Paroles adopts new sec.143.23, concerning 
revocation of conditional pardon, without changes to the proposed text as 
published in the September 28, 1993, issue of the Texas Register (18 TexReg 
6630). 
 The justification for the section is to comply with Senate Bill 532, Acts of 
1993, Chapter 988, 73rd Legislature. Regular Session, which removes authority 
for the Board to issue pre-revocation arrest warrants involving conditional 
pardons. 
 The section will function by authorizing the Board of Pardons and Paroles to 
cause the Texas Department of Criminal Justice, Pardons and Paroles Division, to 
issue pre-revocation arrest warrants involving conditional pardons. 
 No comments were received regarding adoption of the new section. 
 The new section is adopted under the Texas Code of Criminal Procedure, Article 
42.18, sec.8(g), which provides the Board of Pardon and Paroles with the 
authority to adopt such reasonable rules not inconsistent with law as it may 
deem necessary. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on November 1, 1993. 
 TRD-9331427 
  Michael F. Miller 
 General Counsel 
 Texas Board of Pardons and Paroles 
    Effective date: November 23, 1993 
 Proposal publication date: September 28, 1993 
 For further information, please call: (512) 406-5613 
         
           Chapter 147. Hearings 
  
  General Rules for Hearings 
 
  37 TAC sec.sec.147.1-147.6 
 
  The Texas Board of Pardons and Paroles adopts the repeal of sec.sec.147, 1, 
147.2, 147.3, 147.4, 147.5, and 147.6, concerning hearings, without changes to 
the proposed text as published in the Texas Register (18 TexReg 6630). 
 The justification for the section is to conform to changes in statutory law, to 
replace the repealed sections with sections which are more clear and concise. 
 The section will function by authorizing the Board of Pardons and Paroles to 
delete obsolete language. 
 No comments were received regarding adoption of the repealed sections. 
 The repealed sections are adopted under the Texas Code of Criminal Procedure, 
Article 42.18, sec.(g), which provides the Board of Pardons and Paroles with the 
authority to adopt such reasonable rules not inconsistent with law as it may 
deem necessary. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on November 1, 1993. 
 TRD-9331424 
  Michael F. Miller 
 General Counsel 
 Board of Pardons and Paroles 
    Effective date: November 23, 1993 
 Proposal publication date: September 28, 1993 
 For further information, please call: (512) 406-5613 
         
     
  The Texas Board of Pardons and Paroles adopts new sec. sec.147.1, 147.2, 
147.3, 147.4, 147.5, and 147.6, concerning hearings, without changes to the 
proposed text as published in the September 28, 1993, issue of the Texas 
Register  (18 TexReg 6636). 
 The justification for the section is to update these sections to conform to new 
statutory law. 
 The section will function by conforming the general rules for hearings to new 
statutory law, and to make them more concise and easier to understand. 
 No comments were received regarding adoption of the new sections. 
 The new sections are adopted under the Texas Code of Criminal Procedure, 
Article 42.18, sec.8(g), which provides the Board of Pardons and Paroles with 
the authority to adopt such reasonable rules not inconsistent with law as it may 
deem necessary. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on November 1, 1993. 
 TRD-9331423 
  Michael F. Miller 
 General Counsel 
 Board of Pardons and Paroles 
    Effective date: November 23, 1993 
 Proposal publication date: September 28, 1993 
 For further information, please call: (512) 406-5613 
         
           Chapter 150. Board Policy Statements, Memoranda of Understanding 
  
  Conflict of Interest Policy 
 
  37 TAC sec.150.55 
 
  The Texas Board of Pardons and Paroles adopts the repeal of sec.150.55, 
without changes to the proposed text as published in the September 28, 1993, 
issue of the Texas Register (18 TexReg 6637). 
 The justification for the section is to clarify and broaden the scope of 
ethical considerations by replacement of current rules, with new rules. 
 The section will function by deleting obsolete language. 
 No comments were received regarding adoption of the repeal. 
 The repeal is adopted under the Texas Code of Criminal Procedure, Article 
42.18, sec.8(g), which provides the Board of Pardon and Paroles with the 
authority to adopt such reasonable rules not inconsistent with law as it may 
deem necessary. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on November 1, 1993. 
 TRD-9331426 
  Michael F. Miller 
 General Counsel 
 Texas Board of Pardons and Paroles 
    Effective date: November 23, 1993 
 Proposal publication date: September 28, 1993 
 For further information, please call: (512) 406-5613 
         
     
  The Texas Board of Pardons and Paroles adopts new sec.150.55, concerning 
conflict of interest policy, without changes to the proposed text as published 
in the September 28, 1993, issue of the Texas Register (18 TexReg 6637). 
 The justification for the section is to replace language made obsolete by 
statutory change and to clarify and broaden conflict of interest and ethical 
consideration relevant to Board action. 
 The section will function by providing the board with a clearer understanding 
of ethical considerations to be considered relevant taking official action. 
 No comments were received regarding adoption of the new section. 
 The new section is adopted under the Texas Code of Criminal Procedure, Article 
42.18, sec.8(g), which provides the Board Pardons and Paroles with the authority 
to adopt such reasonable rules not inconsistent with law as it may deem 
necessary. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on November 1, 1993. 
 TRD-9331425 
  Michael F. Miller 
 General Counsel 
 Board of Pardons and Paroles 
    Effective date: November 23, 1993 
 Proposal publication date: September 28, 1993 
 For further information, please call: (512) 406-5613 
         
               
  TITLE 40. SOCIAL SERVICES AND ASSISTANCE 
 Part I. Texas Department of Human Services 
  Chapter 3. Income Assistance Services 
  
  The Texas Department of Human Services (DHS) adopts amendments to sec.3. 902 
and sec.3.2504, concerning types of income considered in determining eligibility 
for the Aid to Families with Dependent Children (AFDC) program and Food Stamp 
combined allotment policy, in its Income Assistance Services rule chapter. 
 The purpose for the amendment to sec.3.902 is to comply with a federally- 
mandated increase from $75 to $90 in the standard work-related expense deduction 
used in budgeting a stepparent's income to determine the amount of monthly 
income applied in determining AFDC eligibility. The purpose for the amendment to 
sec.3.2504 is to comply with a federal mandate that requires DHS to issue a 
combined Food Stamp allotment for the month of application and a full allotment 
for the following month to eligible households that apply after the 15th of the 
month, unless the households are certified under expedited services provisions 
with postponed verification. 
 The amendments will function by making DHS's Income Assistance Services rules 
consistent with federal regulations. 
   
  Subchapter I. Income 
 
  40 TAC sec.3.902 
 
  The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 
and 31, which provides the department with the authority to administer public 
and financial assistance programs. The amendment implements the Human Resources 
Code, sec.sec.22.001 and 31.003. The amendment is adopted in compliance with 
federal requirements effective October 1, 1993. 
 
 
  sec.3.902. Types. 
 
  (a) Aid to Families with dependent children. The Texas Department of Human 
Services (DHS) counts the following as income: 
 
  (1)-(22) (No change.) 
   
  (23) stepparents. DHS counts stepparents' income according to requirements in 
45 Code of Federal Regulations sec.233.20(a)(3)(xiv) except for stepparent 
budgeting as stipulated in the Omnibus Budget Reconciliation Act of 1993. 
   
  (24)-(28) (No change.) 
     
  (b)-(d) (No change.) 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on November 1, 1993. 
 TRD-9331310 
  Nancy Murphy 
 Section Manager, Policy and Document Support 
 Texas Department of Human Services 
    Effective date: October 1, 1993 
 Proposal publication date: N/A 
 For further information, please call: (512) 450-3765 
         
             
  Subchapter J. Budgeting 
 
  40 TAC sec.3.1003 
 
  The Texas Department of Human Services (DHS) adopts an amendment to sec.3. 
1003, concerning deductions, in its Income Assistance Services rule chapter. 
 The purpose for the amendment is to comply with federal regulations that 
mandate that states disallow a Food Stamp Program deduction for the full amount 
of child care expenses if the expense is entirely or partially reimbursed 
through the Job Opportunities and Basic Skills Training (JOBS) or Transitional 
Child Care programs. 
 The amendment will function by making DHS's Food Stamp Program rules consistent 
with federal regulations. 
 The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 
and 33, which provides the department with the authority to administer public 
and nutritional assistance programs. The amendment implements the Human 
Resources Code, sec.22.001 and sec.31.002. The amendment is adopted to be 
effective July 1, 1993, in compliance with federal requirements. 
 
 
  sec.3.1003. Deductions. 
 
  (a) (No change.) 
   
  (b) Food Stamps. DHS allows deductions from income as stipulated in 7 Code of 
Federal Regulations sec.273.9(d). Regarding a standard utility deduction, DHS 
allows a single deduction as specified in 7 Code of Federal Regulations 
sec.273.9(d)(6) (i)(B). Regarding a standard shelter deduction for homeless 
households, DHS allows the standard computed annually by the Food and Nutrition 
Service as specified in 7 Code of Federal Regulations sec.273.9(d)(5)(i). 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on October 29, 1993. 
 TRD-9331260 
  Nancy Murphy 
 Section Manager, Policy and Document Support 
 Texas Department of Human Services 
    Effective date:July 1, 1993 
 For further information, please call: (512) 450-3765 
         
             
  Subchapter Y. Issuing Benefits 
 
  40 TAC sec.3.2504 
 
  The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 
and 33, which provides the department with the authority to administer public 
and nutritional assistance programs. The amendment implements the Human 
Resources Code, sec.22.001 and sec.33.002. The amendment is adopted in 
compliance with federal requirements effective October 1, 1993. 
 
 
  sec.3.2504. Combined Allotments. The Texas Department of Human Services (DHS) 
combines and issues food stamp allotments for the month of application and 
following month as stipulated in 7 Code of Federal Regulations sec.274.2(b)(2) 
and the United States District Court decision in Johnson vs. the United States 
Department of Agriculture (USDA). 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on November 1, 1993. 
 TRD-9331311 
  Nancy Murphy 
 Section Manager, Policy and Document Support 
 Texas Department of Human Services 
    Effective date: October 1, 1993 
 For further information, please call: (512) 450-3765 
         
             Chapter 48. Community Care for Aged and Disabled 
  
  The Texas Department of Human Services (DHS) adopts the repeal of sec.48. 8901 
and new sec.sec.48.8901-48.8907 in its Community Care for Aged and Disabled 
(CCAD) chapter. New sec. sec.48.8902, 48.8905, and 48.8907 are adopted with 
changes to the proposed text as published in the August 6, 1993, issue of the 
Texas Register (18 TexReg 5202). The repeal of sec.48.8901, and new sec.sec.48. 
8901, 48,8903, 48.8904, and 48.8906 are adopted without changes to the proposed 
text and will not be republished. 
 The justification for the repeal and new sections is to expand and clarify 
adult foster care policies on resident care, record keeping, reporting and 
notification, nutrition, transportation, resident rights, and provider rights. 
DHS is also changing the undesignated head. 
 The repeal and new sections will function by assuring that adult foster care 
clients receive services in the community from competent providers in a safe and 
healthy environment. 
 During the public comment period, DHS received comments from the Texas 
Organization of Residential Care Homes (TORCH) and several individuals. A 
summary of the comments and DHS's responses follow: 
 Comment concerning sec.48.8902(4): One adult foster care provider commented 
that it should be DHS's responsibility to pay for a tuberculosis (TB) test. 
 Response: DHS feels that the cost of a TB test is not unreasonable for the 
provider, and is adopting this paragraph without change. 
 Comment concerning sec.48.8902(14): One commenter stated that all providers 
should receive orientation yearly. 
 Response: Providers who wish to do so may request that the caseworker offer an 
orientation session yearly, or they may attend a session being offered to new 
providers. 
 Comment concerning sec.48.8902(15): Several commenters stated that DHS should 
provide and/or pay for all training for providers. 
 Response: DHS provides initial provider orientation and training on AIDS/HIV 
and cultural diversity. Training on other topics is ultimately the provider's 
responsibility. Although some DHS regions may provide enough training for the 
provider to meet the six-hour annual requirement, enough training resources are 
available so that the providers are not unduly burdened financially. Training on 
first aid is available throughout Texas at little or no cost to the provider, 
and community colleges and county extension agents offer other training 
resources. This standard has been in effect for several years and will not be 
changed. 
 Comments concerning sec.48.8902(17): 
 
  (1) Comments were received on the standard requiring providers to demonstrate 
financial stability and the ability to meet existing financial obligations prior 
to enrollment. Providers stated that they needed the money from the adult foster 
care program to make ends meet. 
 Response: The intent of this standard is that an applicant be able to meet 
ongoing financial obligations-mortgage, basic utilities, automobile expenses-
before accepting a foster care client. The room and board paid by the client, 
therefore, is used solely for those expenses. To reinforce that the standard is 
an expectation of the applicant, DHS has clarified the language of the 
subsection. 
 (2) One commenter stated that DHS is too slow in reimbursing for clients who 
are referred by adult protective services on an emergency basis. 
 Response: Payment for emergency care clients is the responsibility of the Texas 
Department of Protective and Regulatory Services. This comment has been 
forwarded to staff of that agency. 
 Comment concerning sec.48.8904(2): Several commenters asked what Chapter 250, 
Health and Safety Code, covers. 
 Response: Chapter 250 requires DHS to conduct criminal history checks on 
employees and applicants for employment in certain facilities serving the 
elderly or persons with disabilities. 
 Comments concerning sec.48.8905(1)(B)-(C) and (19): sec.48.8905(1)(B)-(C) 
concern rooms that were converted to bedrooms and the requirement that bedroom 
walls must go from floor to ceiling. Paragraph (19) requires that swimming pools 
be fenced. Comments were received from current providers who were concerned that 
their homes do not meet these standards. 
 Response: Paragraphs (1)(C), (3), and (15) of sec.48.8905 were included in the 
"grandfather clause" in sec.48.8902(19). The paragraphs have been deleted to 
promote consistency among foster care settings. For current providers, 
caseworkers will allow up to 12 months for the provider to make necessary 
modifications to comply with the standards. 
 Comment concerning sec.48.8905(3): Several commenters requested that DHS not 
revise the standard allowing three beds per room. This was the only comment from 
TORCH. 
 Response: DHS received additional comments from family members of clients who 
were very comfortable in a three-person room. DHS is adopting this paragraph 
without changes. However, providers who currently have three clients in a room 
may request a waiver of this standard from their caseworker. The waiver will 
last until one of the three clients moves out of the bedroom. Each situation 
will be reviewed on a case-by-case basis to ensure that the clients are 
comfortable with three to a bedroom. 
 Comment concerning sec.48.8905(10): Several adult foster care providers 
commented that there are valid reasons for having an unlisted telephone number, 
as long as DHS and the clients' families know the number. 
 Response: DHS agrees and has deleted the requirement for having a listed 
telephone. The following language has replaced that requirement: "The foster 
care caseworker, the client, the client's family or guardian, and the client's 
physician must be kept informed of the provider's current telephone number. The 
client has the right to give out the telephone number." 
 Comment concerning sec.48.8905(23): One commenter questioned if fans were 
acceptable as a cooling system. 
 Response: Fans are acceptable as long as the room temperatures are comfortable 
and safe for the clients and the fans are in good working order and are not 
obstacles to the clients' mobility. 
 Comment concerning sec.48.8906(a)(8): Several commenters indicated that three 
minutes is not sufficient time to evacuate all residents of the home, since the 
clients are elderly. 
 Response: DHS staff consulted with the Texas Commission on Fire Protection and 
were referred to the Life Safety Code, Chapter 23, Existing Residential Board 
and Care Occupancies. A "prompt" evacuation capability is described as three 
minutes or less. As a result, DHS is adopting this paragraph without change. 
 Comments concerning sec.48.8907(a)(9): 
   
  (1) One commenter requested that DHS allow 30 days in which to refund a client 
any monies owed to him, rather than within five days as stated in the proposal. 
 Response: DHS has clarified that the provider has up to 30 days to return any 
unused portion of the client's room and board payment. The five-day time frame 
applies to any other money the provider has been keeping or managing for the 
client. 
 (2) Another commenter stated that the provider should be able to keep any room 
and board funds if the client moves without prior notice to the provider. 
 Response: The client and the provider should mutually agree upon how much 
notice the provider would like before the client moves out. If the client 
agrees, the provider may impose a monetary penalty for moving without notice. 
This should all be covered in the client/provider agreement when the client 
moves in. 
 Comment concerning sec.48.8907(g)(2): One commenter suggested that a verbal 
agreement was sufficient when the provider managed a client's money. 
 Response: DHS disagrees with this comment because there would not be 
documentation present to settle a dispute. DHS is adopting this paragraph 
without change. 
 Comment concerning sec.48.8907(j): One commenter, a provider, asked if she had 
the right to terminate services if the client went to the hospital or if she had 
to call the police because of violence. 
 Response: No provider has the authority to terminate services to a client; that 
is a function of DHS staff. The provider does not have the right to evict a 
client who is hospitalized without the prior approval of the caseworker. The 
provider may evict a client if the provider had to call the police because of 
violence and the client is a serious or immediate threat to the health, safety, 
or welfare of the provider or other residents of the home. 
     
  Minimum Standards 
 
  40 TAC sec.48.8901 
 
  The repeal is adopted under the Human Resources Code, Title 2, Chapter 22, 
which provides the department with the authority to administer public assistance 
programs. The repeal implements sec.22.001 of the Human Resources Code. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on October 29, 1993. 
 TRD-9331259 
  Nancy Murphy 
 Section Manager, Policy and Document Support 
 Texas Department of Human Services 
    Effective date: January 1, 1994 
 Proposal publication date: August 6, 1993 
 For further information, please call: (512) 450-3765 
         
         
  Minimum Standards for Adult Foster Care 
 
  40 TAC sec.sec.48.8901-48.8907 
 
  The new sections are adopted under the Human Resources Code, Title 2, Chapter 
22, which provides the department with the authority to administer public 
assistance programs. The new sections implement sec.22.001 of the Human 
Resources Code. 
 
 
  sec.48.8901. Minimum Standards. Providers of adult foster care services must 
meet the minimum standards in this undesignated head. Adult foster care staff 
have the authority to enforce these standards, initiate corrective action plans 
for non-compliance, and if necessary, remove the home from enrollment for non-
compliance with the standards. 
 
   
  sec.48.8902. Provider Qualifications. The provider must: 
 
  (1)  be a responsible, mature, healthy adult (18 years of age or older) 
capable of meeting the needs of the residents in the home. Substitute providers 
must also meet these requirements; 
   
  (2) be physically and mentally able to perform all the required duties and 
tasks; 
   
  (3) be able to communicate directly with the resident and the resident's 
family; 
   
  (4)  show evidence of an examination for tuberculosis. This examination must 
be current within six months prior to the date of enrollment and must be 
obtained from a licensed physician or a local health department. If test results 
are positive, a physician's statement is required documenting that the disease 
is non-communicable; 
   
  (5) not deliver direct services when he has a communicable disease or illness, 
but must ensure that resident's needs are met by an approved substitute 
provider; 
   
  (6) ensure that persons whose behavior or health status endangers the 
residents are not allowed at the home; 
   
  (7) provide, at the time of application, three references from persons not 
related to the provider (or substitute); 
   
  (8) not be related to Department of Human Services- (DHS) funded foster care 
residents in the provider's care; 
   
  (9) live in and share the same household (have common living areas) with the 
residents. Detached living quarters do not constitute the same living area; 
   
  (10)  be the primary caregiver; 
   
  (11) be the owner or lessee of the adult foster home; 
   
  (12) submit a statement providing information concerning any felony and/or 
misdemeanor convictions, and of any pending criminal charges. No one who has 
been convicted of any felony classified as an offense against the person or 
family, or of public indecency, or of violation of the Texas Controlled 
Substances Act, or convicted of any misdemeanor classified as an offense against 
the person or family, or of public indecency, may serve as an adult foster care 
provider. 
   
  (13) have at a minimum one approved substitute provider before the enrollment 
process is completed. Payment to the substitute is the responsibility of the 
primary provider; 
   
  (14) receive orientation covering the topics listed on the adult foster care 
orientation checklist before serving clients. The provider must ensure that he 
familiarizes all substitute providers with the topics. A provider enrolled 
before January, 1992, is not required to receive orientation; 
   
  (15) participate in six hours of in-service training annually on topics 
approved by the adult foster care caseworker. Ongoing training requirements do 
not apply to substitute providers. If the provider does not meet this 
requirement within 12 months of enrollment or reassessment, he will be given an 
additional 60 days to comply with the standard. Training on AIDS/HIV and 
cultural diversity is mandatory during the first year of enrollment. First-aid 
training must be completed by the second year of enrollment. Providers enrolled 
before the effective date of these standards must have received cultural 
diversity and first-aid training within one year from the date of their next 
reassessment; 
   
  (16) demonstrate the ability to read and comprehend the minimum standards for 
adult foster care, the client and provider agreements, service plans, and DHS 
directives; 
   
  (17) prior to initial enrollment, demonstrate and maintain financial 
stability, independent of DHS provider payment, and demonstrate the ability to 
meet existing financial obligations; 
   
  (18) not represent any other residential settings that he owns or operates as 
DHS- enrolled homes. The provider must report Texas Department of Protective and 
Regulatory Services Adult Protective Services or Texas Department of Health 
investigations of these settings to the adult foster care caseworker; 
   
  (19) agree to abide by all policies and procedures of DHS. Providers enrolled 
before the effective date of these standards are exempt from the standards 
specified in paragraph (16) of this section. 
 
     
  sec.48.8905. Home Enrollment Requirements. All homes in which adult foster 
care is provided must: 
 
  (1) have bedrooms with at least 80 square feet of floor space in a single 
occupancy room, and at least 60 square feet of floor space per client in a 
double occupancy room. The bedrooms must: 
 
  (A) be close enough in proximity to the provider to alert the provider to 
night time needs or emergencies, or they must be equipped with a call bell or 
intercom; 
   
  (B) have been constructed as sleeping areas when the home was built, or have 
been remodeled under permit that meets local requirements; 
   
  (C) be finished with walls or partitions of standard construction which go 
from floor to ceiling; and 
   
  (D) be ventilated and lighted with at least one window that will open freely 
and remain open from the inside without special tools; 
     
  (2) provide each resident with a bed and sufficient drawer and closet space in 
the resident's bedroom; 
   
  (3) have no more than two beds in any room; 
   
  (4) have comfortable sleeping arrangements for residents; 
   
  (5) provide at least one comfortable sitting chair per resident in each 
bedroom; 
   
  (6) provide at least one grab bar in the bathtub/shower area and a slip-proof 
surface in the bathtub/shower area; 
   
  (7) have adequate supplies of soap and toilet paper for each bathroom. 
Residents must be provided with individual towels and wash cloths; 
   
  (8) provide a sketch of the home floor plan showing the dimensions and the 
purpose of all rooms and specifying where residents and household members will 
sleep. As arrangements change, an updated floor plan must be provided to DHS 
staff; 
   
  (9) have a conspicuously posted emergency/disaster evacuation plan that 
specifies what procedures residents follow in case of emergency, and hold 
evacuation drills at least every six months with at least one of the two 
required annual drills occurring during sleeping hours; 
   
  (10) have at least one working telephone available in the home for residents 
to make calls. The foster care caseworker, the client, the client's family or 
guardian, and the client's physician must be kept informed of the provider's 
current telephone number. The client has the right to give out the telephone 
number. Limitations on the use of the telephone must be specified in the house 
rules. Providers must not charge recipients for the use of the telephone for 
local calls; 
   
  (11)  have emergency telephone numbers, including the adult foster care 
caseworker's number, located at or near the telephone; 
   
  (12) have an operational smoke detection system. Battery operated detectors 
are acceptable; 
   
  (13) have a portable A.B.C.-type fire extinguisher charged and ready for use; 
   
  (14) have first-aid supplies on the premises, as recommended by the American 
Red Cross; 
   
  (15) have at least one communal dining table with adequate seating for all 
residents at the same time; 
   
  (16) provide space and furniture for residents' visitors; 
   
  (17) provide laundry service for the residents as part of the room and board 
rate; 
   
  (18) meet all applicable state and local building, zoning, and housing codes; 
   
  (19) be maintained, repaired, and cleaned so that the homes are not hazardous 
to residents in care (including yards). There must be no accumulation of 
garbage, debris, rubbish, or offensive odors. If house pets are kept indoors, 
sanitation must be maintained. Swimming pools must be fenced; 
   
  (20) have screens on windows and doors used for ventilation; 
   
  (21) have equipment and furnishings that are safe for residents; 
   
  (22) have flammable and poisonous substances, explosives, and firearms stored 
and inaccessible to residents; 
   
  (23) maintain room temperatures at levels which are comfortable to residents. 
Heating and cooling systems must be in good working order. Maintain hot water 
temperatures in resident areas between 100 degrees Fahrenheit and 125 degrees 
Fahrenheit; 
   
  (24) have food preparation areas and equipment clean, free of offensive odors, 
and in good repair. Utensils, dishes, and glassware must be washed in hot soapy 
water, rinsed, and stored to prevent contamination; and 
   
  (25) store soiled linens and clothing in containers in an area separate from 
food storage, kitchen, and dining areas. 
 
     
  sec.48.8907. Provider Responsibilities. 
 
  (a) Resident care and services. The adult foster care provider must: 
 
  (1) provide services to residents according to the individual service plan and 
the client/provider agreement; 
   
  (2) meet all requirements and conditions stated on the client/provider 
agreement, approval of foster care, and client service plan; 
   
  (3) ensure that an approved substitute provider is present in the home if at 
least one resident remains in the home when the provider plans to be absent from 
the home for more than three hours in a 24-hour period. Residents whose care 
plans specify the need for 24-hour supervision may not be left without the 
supervision of an approved substitute provider for any period of time; 
   
  (4) receive prior approval from the adult foster care caseworker or supervisor 
if he plans to be absent for more than 24 hours. The proposed substitute 
provider must have prior Department of Human Services (DHS) approval. The 
provider must ensure that the substitute provider is aware of and takes 
responsibility for meeting resident needs and providing services according to 
the residents service plans and the requirements of these standards. If two 
adults in the home have been approved as dual providers, this notification is 
not necessary when one provider leaves for more than 24 hours; 
   
  (5) ensure that residents are not abused, neglected, or exploited while in 
foster care. Validated reports of the provider, the provider's family, or 
employees willfully inflicting injury, physical suffering, intimidation, or 
mental anguish on any resident in the home shall constitute grounds for 
immediate removal of the home from enrollment; 
   
  (6) respond to, investigate, and document resident complaints and report 
unresolved complaints to the adult foster care caseworker within five days of 
receipt of the complaint; 
   
  (7) have clearly defined house rules, including smoking policies. House rules 
must be shared with the resident before moving to the foster home; 
   
  (8) take appropriate action if he finds that a resident threatens the health 
or safety of others or himself; and 
   
  (9) provide the resident with a final accounting of the resident's funds and 
refund any monies owed to the resident within five days of discharge. Any unused 
room and board money must be reimbursed within 30 days. 
     
  (b) Recordkeeping. The adult foster care provider must: 
 
  (1) maintain for each resident a record with the following information: 
 
  (A) the names, addresses, and telephone numbers of 
 
  (i) person(s) other than DHS staff to be notified in case of emergency, (if 
any); 
   
  (ii) the resident's physician, (if any); and 
   
  (iii) the resident's adult foster care caseworker; 
     
  (B) current and past copies of the client and provider agreement, signed by 
the client and/or responsible party, provider, and the adult foster care 
caseworker; 
   
  (C)  current and past copies of the approval of adult foster care; 
   
  (D) current and past copies of the client service plan; 
   
  (E) any DHS communications regarding the resident; 
   
  (F) personal papers of the resident, such as life insurance policies, burial 
arrangements, savings accounts, etc. if requested by the resident; and 
   
  (G) records related to assistance provided the resident with money management, 
payments, distribution of personal allowance, expenditures, etc. 
     
  (2) file claims for services according to DHS rules using the appropriate DHS 
forms and agree to accept the claimed amount as full payment from DHS for 
services provided. Nursing facility waiver clients are required to pay a co-
payment. 
     
  (c)  Reporting and notification. The adult foster care provider must: 
 
  (1) report to the adult foster care caseworker, within 24 hours or the next 
work day after awareness of the change, all significant changes in the 
resident's physical health, mental and/or behavior status; 
   
  (2)  report to the adult foster care caseworker pending resident 
hospitalizations before the hospitalization, and unplanned hospitalizations 
within 24 hours of the hospitalization or the next work day; 
   
  (3)  report pending hospital discharges of approved residents to the adult 
foster care caseworker before the actual discharge, or on the day the resident 
returns to the foster care setting, to ensure continued resident 
appropriateness; 
   
  (4) notify the adult foster care caseworker, at a minimum, within 24 hours or 
the next work day after a resident is away from or vacates the adult foster 
home; 
   
  (5) notify the adult foster care caseworker immediately by telephone upon 
becoming aware of the following: death of a resident, serious physical injury or 
distress of a resident, offense against the resident, or public indecency of a 
resident. The provider must submit a written report within 48 hours of the 
verbal report. The provider must also notify the police in the following 
situations: the death of a resident in the foster home, serious physical injury 
resulting from assault or battery, offenses against the resident, and public 
indecency; 
   
  (6) notify the adult foster care caseworker about serious occurrences 
involving the provider, the home, or the residents. These may include, but are 
not limited to, fire, accidents, altercations among residents, break-ins, or 
illness of the provider or residents. The provider must notify the caseworker by 
telephone no later than the next calendar day after awareness of the occurrence; 
   
  (7) notify the adult foster care caseworker before any resident receives home 
health services; and 
   
  (8) report to the adult foster care caseworker's supervisor or another adult 
foster care staff person any of the required notifications if the caseworker is 
not available to speak with the provider. 
     
  (d)  Responding/acting. The adult foster care provider must: 
 
  (1)  upon awareness, obtain medical attention for a resident exhibiting signs 
of physical injury, pain or discomfort; 
   
  (2) seek medical attention/care on the same day of awareness for a resident 
exhibiting acute changes in physical health, mental or behavior status; and 
   
  (3)  follow DHS adult foster care directives related to resident care within 
the specified time frames. 
     
  (e) Nutrition. The adult foster care provider must: 
 
  (1) provide a resident with at least three meals daily which meet each 
resident's dietary and nutritional needs; 
   
  (2) consider a resident's food preferences and make reasonable accommodations 
within his dietary needs; 
   
  (3) serve a variety of foods, within the resident's dietary needs; and 
   
  (4) follow special diets as prescribed in writing by the resident's physician. 
     
  (f) Medications. The adult foster care provider must comply with the following 
rules regarding the storage and management of medications: 
 
  (1) prescription medications must be in the original container labeled with 
the resident's name, date, instructions, name of medication and dosage, and the 
physician's name; 
   
  (2) medications requiring refrigeration must be separated from food in a 
clearly labeled, designated locked container; 
   
  (3) medications must be transferred with the resident when the resident leaves 
the home. Medications must be disposed of when resident medication regimen 
changes, or when the medication is out of date; 
   
  (4) medications prescribed for one resident must not be taken by or given to 
any other resident; 
   
  (5) the adult foster care provider must ensure that a resident takes over-the-
counter medications according to the package directions. Excessive use of these 
medications must be reported to the adult foster care caseworker; 
   
  (6) the adult foster care provider must ensure that all medications are taken 
as prescribed and in a timely manner according to the instructions on the 
medication label or instructions from the resident's physician; 
   
  (7) the adult foster care provider may administer medications only as allowed 
by state law or regulation; and 
   
  (8) prescription medications must be kept in a locked container. 
     
  (g) Resident rights and responsibilities. The adult foster care provider must: 
 
  (1) inform the resident verbally and in writing, before or at the time of 
admission, of his rights and responsibilities. The rights and responsibilities 
include rules governing resident conduct, complaints, bedhold policies for 
hospital and personal leave, and eviction procedures. The policies must not 
violate the rules specified in this undesignated head nor adversely affect the 
resident's health or safety. All policies must have an effective date. If the 
provider amends any policy, each resident must be informed before the change 
becomes effective. A written copy of these policies must be given to the 
resident to initial and date. This copy must be filed in the resident's 
casefolder. A copy of the policies must also be given to the resident. If the 
resident is unable to read or understand the policies, a copy must be given to 
the person responsible for him. 
   
  (2) allow the resident to manage his finances or trust funds. The provider 
must assist the resident in managing his finances only if the resident requests 
assistance in writing. The resident may rescind this authorization at any time 
by doing so in writing; 
   
  (3) investigate all problems, deficiencies, and non-compliance with policies, 
procedures, and standards which are reported by the resident or DHS staff within 
five workdays from receipt of the report. A copy of the documented complaint 
must be submitted to the adult protective services caseworker within 30 days of 
the receipt of the report; 
   
  (4) provide each resident with a general orientation about his needs and the 
tasks to be provided before or at the time the service begins; 
   
  (5) not require a resident to perform services for the provider or other 
residents; and 
   
  (6) treat each resident with dignity and respect. The provider must guarantee 
certain basic rights to each resident living in his home. Such rights include 
the right to privacy, humane care and environment, safety of personal 
possessions and funds, receipt of visitors, confidentiality of personal records, 
freedom of religion, freedom from physical or mental abuse, neglect and 
exploitation, freedom from physical or chemical restraints, freedom from 
financial exploitation,and the right to voice grievances without retribution or 
intimidation. 
     
  (h)  Transportation. Adult foster care providers must provide or make 
arrangements to meet the transportation needs of a resident for medical 
appointments/care, shopping for personal needs, and church activities as 
identified by the adult foster care caseworker. An escort must also be provided 
if specified in the individual service plan for a resident. 
   
  (i) Provider Rights. Each provider must post a providers' bill of rights in a 
prominent place in the foster home. The bill of rights must state that the adult 
foster care provider has the right to: 
 
  (1) be shown consideration and respect that recognizes the dignity and 
individuality of the provider; 
   
  (2) terminate the client/provider agreement after a written 30-day notice; 
   
  (3) terminate the client/provider agreement immediately, after notice to DHS, 
if the provider finds that a resident creates a serious or immediate threat to 
the health, safety, or welfare of the provider or the other residents of the 
foster home; 
   
  (4) refuse to perform services for the resident or the resident's family other 
than those specified in the client/provider agreement; 
   
  (5) refuse to accept a person referred to the foster home if the referral is 
inappropriate; 
   
  (6) refuse to allow the presence of illegal drugs and weapons in the home; and 
   
  (7) be made aware of a resident's problems, including aggressive or violent 
behavior, disease, alcoholism, or drug abuse. 
     
  (j) Termination of Services. Adult foster care providers cannot terminate 
services to a resident without the prior approval of the adult foster care 
caseworker or supervisor, unless the resident creates a serious or immediate 
threat to the health, safety, or welfare of the provider or the other residents 
of the foster home. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on October 29, 1993. 
 TRD-9331258 
  Nancy Murphy 
 Section Manager, Policy and Document Support 
 Texas Department of Human Services 
    Effective date: January 1, 1994 
 Proposal publication date: August 6, 1993 
 For further information, please call: (512) 450-3765 
         
               Chapter 79. Legal Services 
  
  Subchapter K. Informal Hearings 
 
  40 TAC sec.sec.79.1001-79. 1007 
 
  The Texas Department of Human Services (DHS) adopts new  sec.sec.79.1001-79. 
1007, concerning informal hearings conducted by DHS fair hearing officers. 
Sections 79.1001, 79.1004, and 79.1007 are adopted with changes to the proposed 
text as published in the August 13, 1993, issue of the Texas Register (19 TexReg 
5391). Sections 79.1002, 79.1003, 79.1005, and 79.1006, are adopted without 
changes and will not be republished. 
 The justification for the new sections is to provide an alleged perpetrator of 
abuse or neglect in a nursing facility with an opportunity for a hearing which 
affords rights of due process. Previously, DHS had no provisions for informal 
hearings conducted by fair hearing officers concerning non-client benefit cases. 
The rules are being adopted under new Subchapter K. 
 The sections will function by providing easy access to an appeal process to 
persons accused of abuse, neglect, or misappropriation in long-term care 
facilities prior to entry of findings in public records. 
 During the public comment period, DHS received comments from the Texas Health 
Care Association. 
 COMMENT: The commenter requested DHS to adopt the proposed rules with changes 
to include patient transfer and discharge cases. 
 RESPONSE: Adoption of these new informal hearings rules with the recommended 
change would result in a substantive revision of the rules to include a class of 
cases presently handled under DHS's fair hearings rules. DHS will consider the 
recommendation for inclusion in a future amendment to its fair hearings rules. 
 DHS is adopting sec.79.1001(b) with a change in the reference to Subchapter Q, 
Formal Hearings (formerly entitled Contract Appeals). DHS is adopting sec.79. 
1004 with an editorial change which combines subsections (d) and (h), as 
proposed, into one subsection. Also, DHS is adopting sec.79.1007(b) with a 
correction in the reference to the Administrative Procedure Act (formerly the 
Administrative Procedure and Texas Register Act). 
 The new sections are adopted under the Human Resources Code, Title 2, Chapter 
22, which provides the department with the authority to administer public 
assistance programs. The new sections implement the Health and Safety Code, 
sec.250. 
 
 
  sec.79.1001. Informal Hearings. 
 
  (a) Various state and federal laws provide persons affected by an action or 
decision of the Texas Department of Human Services (DHS) the right to have that 
action or decision reviewed by a process which ensures that the appellant 
receives a fair and impartial review. 
   
  (b) DHS provides an informal hearing in cases not covered under Subchapters M 
and Q of this title (relating to Appeals Process and Formal Appeals) but which 
affect the rights, duties, or privileges of a party. 
   
  (c) Informal hearings are conducted by a regional hearing officer, as provided 
under sec.79.1203 of this title (relating to Hearing Officer), after DHS 
notifies all parties. The regional hearing officer is responsible for setting 
the hearing, providing notice, conducting the hearing, preparing the record, and 
rendering a final decision in the case, including findings of fact and 
conclusions of law. 
 
     
  sec.79.1004. Conduct of Hearing. 
 
  (a) Representatives. The requesting party may be represented by counsel or by 
an authorized representative designated in writing. 
   
  (b) Cross-Examination. The parties and witnesses are subject to cross-
examination by the other party. 
   
  (c) Briefs and Arguments. Each party has the right to submit written briefs or 
argument in support of its position and to respond to the documents or arguments 
presented by the other party. 
   
  (d) Documents. The party or his representative has the right to review any 
documentary materials to be presented at the hearing and to submit to the 
hearing officer any documents or written evidence, affidavits, or statements 
which they wish to have considered. All documents accepted into evidence must be 
plainly marked and filed in the case file. 
   
  (e) Evidence. The hearing officer is guided by the rules of evidence as they 
are applied in a civil court in a trial without a jury. When necessary to 
ascertain facts not reasonably susceptible of proof under those rules, evidence 
not admissible under those rules may be admitted, unless precluded by statute, 
if it is of a type commonly relied upon by reasonably prudent persons in the 
conduct of their affairs. The hearing officer has the authority to exclude 
irrelevant, immaterial, or repetitious evidence; to note any objections to 
offers of evidence in the record; and to specify and enforce maximum time limits 
on all phases of the hearing. 
   
  (f) Telephonic Testimony. 
 
  (1) Testimony may be taken by telephonic means, if: 
 
  (A) the party offering the testimony has shown good cause for the 
nonappearance of the witness (residence more than 100 miles from place of 
hearing constitutes good cause); and 
   
  (B) the equipment permits all parties present at the hearing to hear the 
testimony simultaneously and examine and cross-examine with questions and 
answers audible to all parties. 
     
  (2) The hearing officer must satisfy himself as to the identity of the 
witnesses and administer the oath to the witnesses. 
     
  (g) Oath. The hearing officer must administer the oath to all witnesses, and 
must make an audiotape recording of all the testimony. The hearing officer may, 
if Texas Rules of Civil Procedure, Number 267, is invoked, excuse all witnesses 
from the hearing (except when they are called to testify), instructing them not 
to confer with one another concerning their testimony. The appellant, his 
representative, and the DHS representative may remain in the hearing. 
   
  (h) Burden of Proof. The party seeking an affirmative action or imposition of 
a sanction or penalty has the burden of proof by a preponderance of the evidence 
and is granted the right to open the presentation of the case and close with 
rebuttal evidence or argument. 
   
  (i) Record. 
 
  (1) The record of a proceeding must include: 
 
  (A) all pleadings, notices, motions, and rulings; 
   
  (B) all evidence received or considered; 
   
  (C) a statement of matters officially noticed; 
   
  (D)  questions and offers of proof and objections and rulings on them; 
   
  (E) proposed findings and exceptions; and 
   
  (F)  the decision of the hearing officer. 
     
  (2) A transcript of the proceeding may be prepared upon request. The cost of 
the transcript is assessed against the requesting party. 
 
       
  sec.79.1007. Administrative Appeal. 
 
  (a) Within ten days of the date of the denial of a motion for rehearing, or 
within 20 days of the date of mailing of the final decision, if no action is 
taken on the motion for rehearing, a request for administrative appeal may be 
filed with the hearing officer. Upon receipt of a request for administrative 
appeal, the hearing officer must acknowledge by mail receipt of the request and 
must forward the file and all supporting documentation and records to the 
director of DHS's Hearings Department, state office. Upon receipt in the 
Hearings Department, the case is docketed and the director of the Hearings 
Department assigns the case to an administrative law judge. The administrative 
law judge notifies the parties of the date, time, and place of the hearing. 
   
  (b) Upon appeal, DHS is represented by the regional attorney for the region 
from which the appeal is taken. The appeal is de novo on all issues of law and 
fact and is conducted under DHS's rules for formal hearings and the 
Administrative Procedure Act. 
   
  (c) The decision of the administrative law judge is final. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on October 29, 1993. 
 TRD-9331257 
  Nancy Murphy 
 Section Manager, Policy and Document Support 
 Texas Department of Human Services 
    Effective date: December 15, 1993 
 Proposal publication date: August 13, 1993 
 For further information, please call: (512) 450-3765 
         
                   
  TITLE 43. TRANSPORTATION 
 Part I. Texas Department of Transportation 
  Chapter 17. Vehicle Titles and Registration 
  
  Vehicle Emissions Verification System 
 
  43 TAC sec.17.80 
 
  The Texas Department of Transportation adopts new sec.17.80, with changes to 
the proposed text as published in the August 20, 1993, issue of the Texas 
Register  (18 TexReg 5572). This new section is proposed as a part of a revision 
to the State Implementation Plan. The revision is necessary under the 1990 
Federal Clean Air Act Amendments and the subsequent November 5, 1992, 
inspection/maintenance program rulemaking by the United States Environmental 
Protection Agency which require the establishment of inspection/maintenance 
programs in moderate, serious, and severe ozone nonattainment areas. The Texas 
Air Control Board proposed the revised State Implementation Plan in the Texas 
Register  on July 27, 1993 (18 TexReg 4957). 
 Pursuant to the registration laws, Texas Civil Statutes, Article 6675a-1, et 
seq, the department registers vehicles operating on the roads, streets, and 
highways of this state. House Bill 1969, 73rd Legislature, 1993, amended the 
Health and Safety Code, sec.382.037, specifying that the department implement a 
system requiring verification that a vehicle complies with vehicle emissions 
inspection/maintenance programs when the vehicle is registered in a county 
included in a vehicle emissions inspection/maintenance program under the Uniform 
Act Regulating Traffic on Highways (Texas Civil Statutes, Article 6701d, 
sec.142); that the department by rule require the owner of a vehicle to be 
registered in a county covered by an emissions inspection/maintenance program to 
submit an inspection certificate issued for that vehicle; and that the 
department collect and record data concerning those vehicles registered in a 
county covered by a vehicle emissions inspection/maintenance program. 
 House Bill 1969 also amended Texas Civil Statutes, Article 6675a-2(a), 
specifying that the department, through the county tax assessor-collector, shall 
require an applicant for registration of a vehicle in a county that is not 
covered by an emissions inspection/maintenance program to provide evidence that 
the applicant is a resident of that county, and further requires the department 
to promulgate rules to prescribe acceptable forms and types of evidence of 
county residency. 
 In order to comply with the provisions of House Bill 1969 and implement a 
system that is consistent with the legislative intent and federal law, it is 
necessary for the department to adopt on a permanent basis the undesignated head 
entitled Vehicle Emissions Verification System and new sec.17.80, which provides 
as follows: subsection (a), Purpose, describing the statutory role of the 
department concerning the issuance of vehicle registration; subsection (b), 
Definitions, defining words and terms used in the section; subsection (c), 
Conditions to Vehicle Registration, requiring an applicant for vehicle 
registration or renewal of registration to submit a vehicle emissions 
certificate if the vehicle is registered in a county covered by an 
inspection/maintenance program, providing for certain conditions under which a 
vehicle emissions inspection certificate is not required, and specifying forms 
acceptable as evidence of county residency when a vehicle is registered in a 
county not covered by a vehicle emissions program; and subsection (d), County 
Reporting, providing for the county to report to the department and the Texas 
Natural Resource Conservation Commission the number of vehicle registrations 
denied because of the applicant's failure to provide proof of residency in the 
county; the number of vehicle registrations denied because of the applicant's 
failure to provide the original vehicle emissions inspection certificate; and an 
itemized accounting of the costs to the county for administering the provisions 
of the section. 
 On September 22, 1993, the department conducted a public hearing to receive 
comments on the adoption of proposed new sec.17.80. The President of the Tax 
Assessor-Collector's Association spoke against a portion of the rule. The 
department also received written comments from the Texas Automobile Dealers 
Association, and from the Texas Transportation Commission's Environmental 
Advisory Committee. Substantive comments received and any revisions to the rules 
made in response to those comments are discussed in the following narrative. 
 Section 17.80(c)(1) provides that as a condition to registration of certain 
vehicles in a county included in a vehicle emissions inspection/maintenance 
program, an applicant must submit a valid emissions certificate issued by an 
authorized inspection station within 90 days preceding the date on which the 
vehicle is registered. 
 Comment: A commenter requested that the counties affected by a vehicle 
inspection/maintenance program be listed in the rule along with the effective 
date that a vehicle emissions certificate will be required as a condition of 
registration. 
 Response: The provisions of sec.382.012 of the Health and Safety Code specify 
that the Texas Natural Resource Conservation Commission (TNRCC) shall prepare 
and develop a general, comprehensive plan for the proper control of the state's 
air. Further, sec.382.037 of the Health and Safety Code requires the TNRCC to 
adopt vehicle emissions inspection and maintenance requirements for certain 
areas as required by federal law or regulation. The TNRCC has adopted 31 TAC 
sec.114.3, Inspection Requirements, which specifies the affected counties and 
the inspection/maintenance program implementation schedule. The department, 
therefore, does not believe it is necessary or appropriate to list the affected 
counties and effective dates since counties and dates are established by the 
TNRCC. 
 Section 17.80(c)(1), further provides that a valid emissions inspection 
certificate is a condition of registration in a county covered by a vehicle 
emissions testing program. "Program area" is defined as "a county or counties in 
which the TNRCC, in coordination with the department, administers the vehicle 
emission inspection/maintenance program contained in the revised Texas State 
Implementation Plan." 
 Comment: The Environmental Advisory Committee of the Texas Transportation 
Commission expressed concern about the flexibility with which a county is 
allowed to enter into an emissions inspection/maintenance program. The committee 
was concerned about possible abuse by counties whose air quality meets federal 
standards, yet decides (for economic reasons) to implement an emissions 
inspection/maintenance program. 
 Response: This option is authorized by sec.382.037 of the Health and Safety 
Code, which specifies that counties not subject to federal mandate may adopt a 
vehicle emissions inspection and maintenance program if the county and the most 
populous municipality within the county request by resolution to be included in 
such a program. Therefore, the department is merely recognizing existing law and 
cannot adopt a rule contrary to such provision. 
 Section 17.80(c)(1)(B), provides that a vehicle registered in a county covered 
by a biennial vehicle emissions testing program must be inspected every even-
numbered calendar year if the vehicle has an even-numbered year model and every 
odd-numbered calendar year if the vehicle has an odd-numbered year model. 
 Comment: A commenter requested that sec.17.80(c)(1) be amended to include a 
definition for "vehicle year model." The commenter noted that vehicles 
manufactured for the European community are manufactured on a calendar year 
model and vehicles manufactured for the United States are frequently on a 
September to September year model. The commenter requested that the department 
include the definition of "year model" and specify that year model means the 
year model as shown on the Certificate of Title. 
 Response: The department agrees that a clarification is necessary. Therefore, 
sec.17.80(b) has been revised to add the following definition: "Year model-The 
model year recorded on the registration receipt or certificate of title, or if a 
Texas title has not been issued, on the surrendered evidence of ownership." 
 Section 17.80(c)(2)(A) provides limited exceptions concerning when a vehicle 
emissions certificate will not be required as condition of registration. One 
such instance is when the vehicle is registered in conjunction with the first 
sale of the vehicle. 
 Comment: A commenter requested that the department revise the definition of 
"first sale" to state that dealer-to-dealer sales are not included within the 
definition. 
 Response: sec.17.80 addresses conditions to registration and titling of a 
vehicle. Until the vehicle is registered and/or titled, the provisions of this 
section would not apply. Therefore, the definition will not be revised. 
 Section 17.80(c)(3) provides that evidence of residency is a condition to 
registration of a vehicle in a county that is not included in a vehicle 
emissions inspection/maintenance program. Section 17.80 also provides a list of 
documents that will be accepted as evidence of residency. 
 Comment: The Environmental Advisory Committee also expressed concern that the 
items listed as acceptable proof of residency were too lenient and could be 
misused by registrants in order to avoid compliance with the program. The 
committee was especially concerned about possible abuse of the school tuition 
receipt which the proposed rule allows as proof of residency. 
 Response: County tax assessor-collectors act as agents for the department in 
issuing vehicle registration. Their offices register in excess of 14 million 
vehicles annually. The department believes the legislature had this high volume 
of customers in mind when it authorized the department to adopt rules 
prescribing acceptable forms and types of evidence of residency and specifically 
listed school tuition receipts and several other items, each of which the 
department included in the rule. The department has only added telephone bill 
receipts. The department believes it is acting in conformity with legislative 
intent by authorizing the acceptance of the forms of evidence listed in House 
Bill 1969. 
 Comment: The Tax Assessor-Collector Association submitted oral and written 
comments on the same provision, arguing that the section was stricter than the 
intent of the legislature as evidenced by House Bill 1969, and that the 
provision appears to try to limit the number or types of evidence. The 
association suggested that the provision be revised to read, "The County Tax 
Assessor-Collector is to be satisfied that each applicant is a resident of the 
county of registration and may use as acceptable means of identification any of 
the following:..." 
 Response: The department does not agree with this suggestion since the 
legislature, in House Bill 1969, delegated to the department the responsibility 
for prescribing acceptable forms and types of evidence of residency. To adopt 
the suggested language would allow a tax assessor-collector to accept any means 
he or she deems appropriate, which would result in the department abdicating its 
legislatively mandated responsibility to prescribe acceptable forms by rule, and 
would lead to different standards in the counties, thereby confusing the public. 
 The new section is adopted under Texas Civil Statutes, Article 6666, and 6675a-
1, et seq, and the Health and Safety Code,  sec.382.037, which provide the Texas 
Transportation Commission with the authority to promulgate rules and regulations 
for the conduct of the work of the Texas Department of Transportation, and for 
the orderly administration of statutory provisions relating to the department's 
issuance of vehicle registration. 
 
 
  sec.17.80. Vehicle Emissions Verification System. 
 
  (a) Purpose. Texas Civil Statutes, Article 6675a-1, et seq, charges the 
department with the responsibility of registering vehicles operating upon the 
public roads, streets, and highways of this state. The Health and Safety Code, 
sec.382.037, requires the department to implement a system requiring 
verification that a vehicle complies with vehicle emissions 
inspection/maintenance programs when the vehicle is registered in a county 
included in a vehicle emissions inspection/maintenance program under the Uniform 
Act Regulating Traffic on Highways, Texas Civil Statutes, Article 6701d, 
sec.142. This section prescribes the procedures and policies necessary to 
implement such a system. 
   
  (b)  Definitions. The following words and terms, when used under this 
undesignated head, shall have the following meanings, unless the context clearly 
indicates otherwise. 
 
  (1) Department-The Texas Department of Transportation. 
   
  (2) First sale-The bargain, sale, transfer, or delivery with intent to pass an 
interest therein, other than a lien, of a motor vehicle which has not been 
previously registered or licensed in this state or elsewhere, shall constitute 
the first sale of said vehicle, irrespective of where such bargain, sale, 
transfer, or delivery occurred. 
   
  (3) Program area-A county or counties in which the TNRCC, in coordination with 
the department, administers the vehicle emission inspection/maintenance program 
contained in the revised Texas State Implementation Plan. 
   
  (4) Revised State Implementation Plan-The Texas State Implementation Plan as 
revised in accordance with U. S. Environmental Protection Agency, 40 Code of 
Federal Regulations, Part 51, Subpart S, issued November 5, 1992, including 
procedures and requirements of the vehicle emission inspection/maintenance 
program. 
   
  (5) TNRCC-The Texas Natural Resource Conservation Commission. 
   
  (6) Vehicle-Every motor-driven or propelled vehicle required to be registered 
in this state and subject to vehicle emissions inspection under TNRCC rules. 
   
  (7)  Vehicle emissions certificate-A unique inspection certificate in a form 
prescribed by the TNRCC which verifies a vehicle has been inspected in 
accordance with the provisions of its vehicle inspection/maintenance program. 
   
  (8) Year model-The model year recorded on the registration receipt or 
certificate of title, or if a Texas title has not been issued, on the 
surrendered evidence of ownership. 
     
  (c) Conditions to vehicle registration. 
 
  (1) In a county included in a vehicle emissions inspection/maintenance 
program, an applicant for vehicle registration or renewal of registration must 
submit a valid emissions inspection certificate issued by an authorized 
inspection station within 90 days preceding the date on which the vehicle is 
registered in accordance with the following requirements. 
 
  (A) A vehicle registered in a county covered by an annual vehicle emissions 
testing program must be inspected annually. 
   
  (B)  A vehicle registered in a county covered by a biennial vehicle emissions 
testing program must be inspected every even-numbered calendar year if the 
vehicle has an even-numbered year model and every odd-numbered calendar year if 
the vehicle has an odd-numbered year model. 
     
  (2) The provisions of paragraph (1) of this subsection do not apply to: 
 
  (A) the registration of a vehicle in conjunction with the vehicle's first 
sale; 
   
  (B) the transfer of ownership if the vehicle is currently registered under the 
emissions verification specifications required in this subsection; or 
   
  (C) the transfer of ownership of an unregistered vehicle if the vehicle will 
be subsequently registered in a county not included in a vehicle emissions 
inspection/maintenance program, provided that the purchaser furnishes evidence 
of county residency required by paragraph (3) of this subsection. 
     
  (3) When registering a vehicle in a county that is not included in a vehicle 
emissions inspection/maintenance program, the applicant for registration must 
provide evidence of residency in that county. Such evidence may consist of any 
one of the following: 
 
  (A) a voter registration card; 
   
  (B) a driver's license; 
   
  (C) a utility or telephone bill; 
   
  (D) a property tax payment statement or receipt for payment of property tax; 
   
  (E) a school tuition receipt; or 
   
  (F) evidence of compliance with the Texas Motor Vehicle Safety Responsibility 
Act, Texas Civil Statutes, Article 6701h. 
       
  (d) County reporting. Each county tax assessor-collector shall submit by March 
1 of each year, in a form and manner prescribed by the department, an annual 
report to the department and the TNRCC that shows for the previous calendar 
year: 
 
  (1) the number of vehicle registrations denied because of the applicant's 
failure to provide proof of residency in the county; 
   
  (2) the number of vehicle registrations denied because the applicant's failure 
to provide the original vehicle emissions inspection certificate; and 
   
  (3) an itemized accounting of the costs to the county for administering the 
provisions of this section. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on November 1, 1993. 
 TRD-9331350 
  Diane L. Northam 
 Legal Administrative Assistant 
 Texas Department of Transportation 
    Effective date: November 22, 1993 
 Proposal publication date: August 20, 1993 
 For further information, please call: (512) 463-8630