PROPOSED RULES
 
 Before an agency may permanently adopt a new or amended section or repeal an 
existing section, a proposal detailing the action must be published in the  
Texas Register at least 30 days before action is taken. The 30-day time period 
gives interested persons an opportunity to review and make oral or written 
comments on the section. Also, in the case of substantive action, a public 
hearing must be granted if requested by at least 25 persons, a governmental 
subdivision or agency, or an association having at least 25 members. 
  Symbology in proposed amendments. New language added to an existing section is 
indicated by the use of bold text. [Brackets] indicate deletion of existing 
material within a section. 
 
   
  TITLE 4. AGRICULTURE 
 Part I. Texas Department of Agriculture 
  Chapter 28. Texas Agriculture Finance Authority: Loan Guaranty Program 
  
  4 TAC sec.28.8 
 
  The Board of Directors of the Texas Agricultural Finance Authority of the 
Texas Department of Agriculture (the department) proposes an amendment top 
sec.28.8, concerning procedures for participation in the Texas Agricultural 
Finance Authority (TAFA) Loan Guaranty Program, Section 28.8(f) currently 
provides for an appeals process whereby applicants may seek review of denials of 
loan guaranty applications. The amendment deletes the references to an appeals 
process. The amendment is proposed to make the applications process more 
efficient and more consistent with other state loan programs. Section 28. 8(i) 
currently provides that certain percentages of loan guaranties must be made to 
businesses owned by minorities or women. The amendment deletes the references to 
such percentages. The deletion reflects the defeat, on November 2, 1993, of the 
constitutional amendment proposed by the 73rd Legislature, Regular Session, 
1993, which provided for an increase in the principal amount of bonds for the 
authority and specific percentages of loan guaranty participation by businesses 
owned by minorities and women. 
 Robert Kennedy, deputy assistant commissioner for agricultural finance, has 
determined that for the first five-year period the section is in effect there 
will be no fiscal implications for state or local government as a result of 
enforcing or administering the section. 
 Mr. Kennedy also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be more efficient functioning of the loan guaranty applications 
process, and greater consistency with statutory authority. There will be no 
effect on small businesses. There is no anticipated economic cost to persons who 
are required to comply with the section as proposed. 
 Comments on the proposal may be submitted to Robert Kennedy, Deputy Assistant 
Commissioner for Agricultural Finance, Texas Department of Agriculture, P.O. Box 
12847, Austin, Texas 78711. Comments must be received no later than 30 days from 
the date of publication of the proposed amendment in the Texas Register. 
 The amendment is adopted under the Texas Agriculture Code, sec.58.023, which 
provides the TAFA Board with the authority to adopt rules to establish criteria 
for eligibility of applicants and lenders under the TAFA Loan Guaranty Program; 
and sec.58.022, which provides the Board with the authority to adopt rules and 
procedures as necessary for the administration of its programs. The sections 
which be affected by the amendment include Chapter 58 of the Code. 
 
 
  sec.28.8. Filing Requirements and Consideration of Applications. 
 
  (a)-(e) (No change.) 
   
  (f) Denial of qualified application. If the qualified application is denied by 
the board, the Authority will notify the applicant and the lender in writing, 
identifying the reasons for denial. [In the event of a denial, the applicant may 
petition the board for review of the denial by filing a written request with the 
official of the department designated by the commissioner of agriculture as 
being responsible for the department's agricultural finance programs within 30 
days after the date of the denial. An appeal must address the reasons for denial 
and, if applicable, set forth any cure of the denial. The board may grant or 
deny the appeal at any time and take such further action as the board deems 
appropriate. The board's review on appeal is limited to a review of the reasons 
for denial as stated in the notification letter of denial of the applicant.] 
   
  (g)-(h) (No change.) 
   
  (i) The Authority shall make a good faith effort to provide loan guaranties [, 
in an amount of at least 20% of the total loan guaranties,] to businesses owned 
by minorities and[to provide loan guaranties, in an amount of at least 10% of 
the total loan guaranties, to business owned by] women. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on January 5, 1994. 
 TRD-9434229 
  Dolores Alavarado Hibbs 
 Chief Administrative Law Judge 
 Texas Department of Agriculture 
    Earliest possible date of adoption: February 14, 1994 
 For further information, please call: (512) 463-7583 
         
                 
  TITLE 10. COMMUNITY DEVELOPMENT 
 Part V. Texas Department of Commerce 
  Chapter 172. Texas Rural Economic Development Program 
  
  10 TAC sec.sec.172.1-172.3, 172.6 
 
  The Texas Department of Commerce proposes amendments to  ssec.172.1-172.3 and 
172.6, of its Texas Rural Economic Development Program rules which implement the 
Texas Rural Economic Development Act authorized by Chapter 481, Subchapter F of 
the Texas Government Code. 
 Section 172.1(a), General Provisions, is being amended to change the name and 
legal citation of the Administrative Procedure and Texas Register Act to the 
Administrative Procedure Act as a result of the codification and renaming of the 
Act by the 73rd Session of the Legislature. Section 172.1(c), Definition of 
Terms, of the General Provisions, is being renumbered as a result of adding 
definitions and alphabetizing the definitions. New paragraphs (14) and (15) of 
sec.172.1(c) add definitions of "guarantee-to-reserve ratio" and "historically-
underutilized business", respectively. Section 172.1(c)(18) is being renumbered 
from sec.172.1(c)(4) to clarify the definition of Policy Board and to change the 
name of the definition from "Board" to "Policy Board". The definition of "state 
auditor" is added as sec.172.1(c)(26). The new definitions in sec.172.1(c) are 
added due to changes to the Texas Rural Economic Development Act made by the 
73rd Session of the Legislature. 
 Section 172.1(d), Conflicts of Interest, of the General Provisions, is being 
amended to refer to the Texas Department of Commerce "Policy Board" rather than 
to its "Board". This change is for clarification. Additionally, sec.172.1(e) is 
being amended add "Texas" before "Open Records Act" and to change the legal 
citation to the Texas Open Records Act. The change is necessary, because the 
Texas Open Records Act is now codified in the Texas Government Code, rather than 
in Texas Civil Statutes, Article 6252-17a. Section 172.1(f) is being amended to 
change the name of the administering department within the Texas Department of 
Commerce's Business Development Division to "Capital Development". The change is 
occasioned by a recent reorganization within the Business Development Division. 
 Subsection (b) of sec.172.2, Texas Rural Economic Development Fund, is being 
amended in response to a recent legislative change to the Texas Rural Economic 
Development Act which allows, rather than requires, the Texas Department of 
Commerce to guarantee not more than 90% of a loan made by a private lender or to 
make loans to fund a project. The Texas Department of Commerce is proposing to 
use a minimum of 50% of the money in the fund to guarantee loans to projects 
located in cities of less than 15,000 inhabitants. It is proposing to amend 
sec.172.2(b) to guarantee up to 90% of private lender loans of $25,000 to 
$50,000 and up to 75% of private lenders loans in excess of $50,000. In response 
to the 73rd Legislature's amendment of sec.481.101 of the Texas Government Code 
to assist historically underutilized businesses in obtaining loans, sec.172.2(b) 
is being amended to add such businesses to the list of projects/industries which 
are given preference for loans under the Texas Rural Economic Development Fund 
program. 
 Section 172.2(c) is being amended to increase the amount of loan guaranties 
that can be outstanding at any time to two times the amount available in the 
loan fund. This amendment is in response to the 73rd Legislature's addition of 
sec.481.0842, concerning guarantee-to-reserve ratios, which requires the Texas 
Department of Commerce Policy Board to adopt a guarantee-to-reserve ratio which 
does not exceed the money available in the loan fund by more than two to one. 
 In an effort to facilitate more rural loans, sec.172.3(a) is being amended to 
enable the Texas Department of Commerce to guaranty loans under the program 
which create one new job for every $25,000 guaranteed by the loan fund. Section 
172.3(b)(4) is being amended to refer to the more general "eligible" 
enterprises, rather than to manufacturing and industrial enterprises, in light 
of the proposed amendment to add historically underutilized businesses to the 
entities which will receive loan guaranty preference under the program. 
 Section 172.6, General Terms and Conditions of Department's Financial 
Commitment, is being amended by decreasing the minimum loan that can be 
guaranteed from the current $50,000 to $25,000, in order to encourage more rural 
loan activity. Sections 172.6(c) and (d) are being amended to add "75%" to the 
provision that the Texas Department of Commerce's net exposure for financial 
assistance to a business may not exceed 90% of the loan. The changes are 
necessary because of the amendment to sec.172.2(b) which provides that loans 
above $50,000 will not be guaranteed for more than 75% of the loan amount. 
Section 172.6(h), concerning fees, is being amended to increase the guaranty fee 
payable to the Texas Department of Commerce by the lender from the current 1-
1/2% to 2.0%. This increase is necessary due to increased costs of processing 
and administering the loan program. 
 Dan McNeil, director, Capital Development for the Texas Department of Commerce, 
has determined that there will be fiscal implications as a result of enforcing 
or administering the rules. For the first five years that the rules are in 
effect, the effect on state government will be the increased guaranty fees 
received from lenders making loans under the program. The increase is not 
quantifiable because it depends upon the number and size of loans guaranteed. 
 Mr. McNeil has determined that there will be no cost to local government 
associated with the proposed rules. He has further determined that there will be 
a public benefit for each of the first five years that the rules are in effect. 
The benefit is to rural areas of the state, which will gain economic vitality as 
local businesses are able to expand and add employees as a result of the loans 
which are being substantially guaranteed by the state under this program. 
 Mr. McNeil does not believe that the amendments to the rules will increase the 
cost of complying with the rules. The cost to participating lenders will 
increase by 1/2% for the guaranty fee that is payable to the Texas Department of 
Commerce. 
 A local employment impact statement has not been requested from the Texas 
Employment Commission concerning the impact of these rules. 
 Two copies of written comments on the proposed rules should be submitted to 
Renee Mauzy, Staff Attorney, Texas Department of Commerce, 816 Congress Avenue, 
Suite 1180, Austin, Texas 78701 within 30 days following publication of the 
proposed rules. 
 The rules are proposed under the authority of sec.sec.481.005; 481.084; 481. 
0842(b) and 481.101 of the Texas Government Code, which sections provide 
statutory authority to the Texas Department of Commerce to establish rules to 
administer the Texas Rural Economic Development Program, and the Administrative 
Procedure Act, Subchapter B, Rulemaking. 
 The amendment implement the Texas Government Code, sec. s481.084; 481.0842(b) 
and 481.101. 
 
 
  sec.172.1. General Provisions. 
 
  (a) Introduction. Pursuant to the authority granted by the Texas Rural 
Economic Development Act, Texas Government Code, Chapter 481, Subchapter F; and 
the Administrative Procedure [and Texas Register] Act, <nl>Chapter 2001 of the 
Texas Government Code,<ol> [Texas Civil Statutes, Article 6252-13a], the Texas 
Department of Commerce prescribes the following sections regarding practice and 
procedure before the department in the administration and implementation of the 
Rural Economic Development Fund. 
   
  (b) Purpose. It is the purpose of the Texas Rural Economic Development Act to 
establish a program which promotes economic development and employment in rural 
communities across the state. Communities in this state are at a critical 
disadvantage in competing with communities in other states for location or 
expansion of businesses because of the availability of financing and other 
special incentives. The purpose of the new sections is to provide standards of 
eligibility and application procedures for a loan guaranty under the Rural 
Economic Development Act. 
   
  (c)  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) Act-The Texas Rural Economic Development Act, Texas Government Code, 
Chapter 481, Subchapter F. 
   
  (2)  Applicant-The private lender or user filing an application with the 
department for a loan guaranty. 
   
  (3) Application-An application, including supporting documentation, for 
participation in the program pursuant to the Act and this chapter. 
   
  <nl>(4)<ol>[(5)] Business day -A day on which the department is open for 
business. The term shall not include any Saturday, Sunday, or traditional 
holiday officially observed by the state. The department's normal business hours 
are 8 a.m. to 5 p.m. each business day. 
   
  <nl>(5)<ol>[(6)] City-Any municipality of the state incorporated under the 
provisions of any general or special law, or the home- rule amendment to the 
constitution. 
   
  <nl>(6)<ol>[(7)] County-Any county of the State of Texas. 
   
  <nl>(7)<ol>[(8)] Department-Texas Department of Commerce. 
   
  <nl>(8)<ol>[(14)] <nl>Eligible <ol> [An eligible] enterprise -Pari-mutuel 
racing or a private-for-profit enterprise, new or existing, whose primary 
activity includes either providing a service, producing a product, or selling 
merchandise. 
   
  (9) Equity-The user's contribution to a project in the form of cash,land, or 
depreciable property. 
   
  (10) Executive director-The executive director of the department or his or her 
designee. 
   
  (11) Federal agency-The United States of America, the President of the United 
States of America, and any department of or corporation, agency, or 
instrumentality heretofore or hereafter created, designated, or established by 
the United States of America. 
   
  (12)  Fund-Texas Rural Economic Development Fund. 
   
  (13) Guaranty amount-With respect to loans made by financial institutions, is 
a sum measured in terms of United States dollars, that in the case of default by 
the borrower, guarantees repayment of the loan, not to exceed <nl>75% or<ol> 90% 
of the loan outstanding. This amount may not exceed $350,000, except in those 
instances where substantial job creation is a major component. 
   
  <nl>(14)  Guarantee-to-reserve ratio-A ratio established by the policy board 
to determine the amount of quarantines exceeding the amount in the fund, which 
ratio cannot exceed two to one. The ratio shall be two to one effective January 
1, 1994, and shall remain in effect until Policy board adjusts. The policy board 
must review annually the ratio and adjust it if appropriate, based upon the 
payment experience of the loans and any recommendations of the state auditor. 
The state auditor must review annually the loan program and make recommendations 
to the policy board by September 1 of each year. For the initial period, the 
state auditor must recommend a ratio to the policy board by December 1, 1993, 
which will be effective through September 1, 1994. 
   
  <nl>(15) Historically Underutilized Business- 
 
  <nl>(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 is 
owned by one or more Persons who are members of certain groups including Black 
Americans, Hispanic Americans, women, Asian Pacific Americans, and American 
Indians; 
   
  <nl>(B) a sole proprietorship formed for the purpose of making a profit that 
is 100% owned, operated, and controlled by a person described by subparagraph 
(A) of this paragraph; 
   
  <nl>(C) a partnership formed for the purpose of making a profit in which 51% 
of the assets and interest in the partnership is owned by one or more persons 
described by subparagraph (A) of this paragraph. Those persons must have 
proportionate interest and demonstrate active participation in the control, 
operation, and management of the partnership's affairs, or 
   
  <nl>(D) a joint venture in which each entity in the joint venture is a 
historically underutilized business under this subdivision. 
     
  <nl>(16)<ol>[(15)]  Loan review committee-A committee consisting of department 
staff members selected by the department's executive director to review eligible 
projects for consideration. 
   
  <nl>(17)<ol>[(16)] New enterprise -A private-for-profit enterprise which has 
actively been in business for a period of less than one year. 
   
  <nl>(18)<ol>[(4)] <nl>Policy <ol> Board-<nl>Policy<ol> [The] Board of <nl>the 
Texas Department of Commerce <ol> [directors of the department]. 
   
  <nl>(19)<ol>[(17)] Private lender -A lending institution, including a bank, 
savings bank, saving and loan association, trust company, or insurance company, 
or an individual or municipal corporation that the department determines 
[determined] is an experienced and sophisticated investor. 
   
  <nl>(20)<ol>[(18)] Program-Texas Rural Economic Development Program. 
   
  <nl>(21)<ol>[(19)] Project-The land, building, equipment, facilities and 
improvements (one or more), and working capital found by the department to be 
required or suitable for the promotion of and for use by an eligible enterprise, 
irrespective of whether in existence or required to be acquired or constructed 
after the making of such finding by the department. 
   
  <nl>(22)<ol>[(20)] Qualified application -A completed application, including 
all documents and information required by the department and submitted by a user 
or private lender for a project. 
   
  <nl>(23)<ol>[(21)] Rural area -A city having a population of 50,000 or less, 
or the unincorporated area of a county, which has a population of 200, 000 or 
less and which is predominantly rural in character. Population is to be 
determined by the decennial census or federal census estimate, whichever is most 
recently published by the United States Bureau of Census. 
   
  <nl>(24)<ol>[(22)] Staff-The staff of the department. 
   
  <nl>(25)<ol>[(23)]State-State of Texas. 
   
  <nl>(26) State Auditor-State Auditor of the State of Texas. 
   
  <nl>(27)<ol>[(24)] User-An individual, partnership, corporation, or any other 
private entity found by the department to be financially responsible to assume 
the obligation in connection with a project. 
     
  (d) Conflicts of interest. 
 
  (1) A member of the <nl>policy<ol> board, committee, agent, or employee of the 
department, in his or her own name or in the name of a nominee, may not hold an 
ownership interest of more than 7-1/2% or in excess of $50,000 of the fair 
market value of an association, trust, corporation, partnership, or other entity 
that is, in its own name or in the name of a nominee, party to a contract or 
agreement under this chapter on which the member of the <nl>policy<ol> board, 
loan review committee, agent, or employee may be called on to act or vote. 
   
  (2) With respect to a direct or indirect interest, other than an interest 
prohibited by paragraph (1) of this subsection, in a contract or agreement under 
this chapter on which the member of the <nl>policy<ol> board, loan review 
committee, agent, or employee may be called on to act or vote, the member of the  
<nl>policy<ol> board, committee, agent, or employee shall disclose the interest 
to the department before the taking of final action by the department concerning 
the contract or agreement, and shall disclose the nature and extent of the 
interest and his or her acquisition of it. This disclosure shall be publicly 
acknowledged by the department and kept a part of its file. A member of the  
<nl>policy<ol> board, loan review committee, agent, or employee who holds such 
interest may not be officially involved in regard to the contract or agreement, 
may not vote on a matter relating to the contract or agreement, and may not 
communicate with other members, agents, or employees concerning the contract or 
agreement. 
   
  (3) A contract or agreement made in violation of this subsection is void. 
     
  (e) Examination of records. Any party requesting the examination of records 
pursuant to the <nl>Texas <ol> Open Records Act, <nl>Chapter 552, Texas 
Government Code, (Vernon's Session Laws 1993)<ol> [Texas Civil Statutes, Article 
6252-17a,] shall indicate in writing the specific nature of the document to be 
viewed, and if photocopying is desired, the appropriate fee must accompany the 
request. 
   
  (f) Written communication with the department. Applications and other written 
communications to the department should be addressed to the attention of the 
Business Development Division, <nl>Capital Development<ol> [Business Finance], 
Texas Department of Commerce, P.O. Box 12728, Austin, Texas 78711. 
 
     
  sec.172.2. Texas Rural Economic Development Fund. 
 
  (a)  Authority. The fund, established in the state treasury, consists of 
appropriations or transfers made to the fund, guaranty fees, other money 
received from operation of the program, and interest paid on money in the fund. 
   
  (b) Purpose. <nl>The department shall use a minimum of 50% of money in the 
fund to guarantee loans made to projects located in cities of less than 15,000 
in population. In addition, loans made by a private lender between $25, 000 and 
$50,000 shall be guaranteed for no more than 90%. Loans made by a private lender 
above $50,000 shall be guaranteed for no more than 75%.<ol> [The department uses 
money in the fund to guarantee not more than 90% of a loan made by a private 
lender to fund a project.] In administering this Act, the department will give 
first preference to assistance to <nl>historically underutilized businesses, 
<ol> the food and fiber processing industries, and to a project located in a 
State of Texas enterprise zone. 
   
  (c)  Outstanding guaranties and insurance. The amount of loan guaranties 
outstanding by the department at any time may not exceed <nl>two times<ol> the 
amount available in the fund. 
 
     
  sec.172.3. Eligibility Requirements. 
 
  (a) Applicants. An applicant is eligible to submit an application to the 
department if the proposed user meets the following criteria: 
 
  (1) is engaged in an eligible enterprise; 
   
  (2) has a reasonable equity interest in the business, which is determined on a 
case-by-case basis by the department and the lender; however, the user must 
provide at least 10% of the total cost of the project; 
   
  (3) creates one new job for every <nl>$25,000 <ol> [$35, 000] guaranteed by 
the fund; and 
   
  (4) provides a minimum of one-third equity investment towards the project if 
the proposed user is a new enterprise. 
     
  (b) Project. In order for a project to be eligible for financing under the 
program, the project must meet the following requirements: 
 
  (1)  be located within the state; 
   
  (2) consist of land, buildings, equipment, facilities, and improvements (one 
or more) and working capital and otherwise meet the definition of a project set 
forth in the Act; 
   
  (3)  be located in a rural area; and 
   
  (4) be principally used or occupied by one or more  <nl>eligible<ol> 
[manufacturing or industrial] enterprises. 
     
  (c) Project costs. The proceeds of a loan guaranteed by the fund may be used 
to finance the following costs: 
 
  (1) the purchase of land and the associated site improvements; 
   
  (2) construction, acquisition, or renovation of buildings; 
   
  (3) the purchase and installation of machinery and equipment; and 
   
  (4) working capital needs. 
     
  (d) Ineligible project costs. Costs which are not eligible include: 
 
  (1) refinancing of existing debt; 
   
  (2) short-term financing for the construction or acquisition phase of a 
project; 
   
  (3)  preliminary design stage costs which include, but are not limited to, 
market research, written <nl>cost <ol> [costs] estimates, development of the 
business plan; loan preparation costs and preliminary product development costs. 
 
       
  sec.172.6. General Terms and Conditions of Department's Financial Commitment. 
 
  (a) Permissible use of financial commitment. The department's financial 
commitment is used to finance the project costs. 
   
  (b) Minimum loan or credit guaranteed. The department shall not provide 
financial assistance to a user where the principal amount of the loan or credit 
needed is less than <nl>$25,000 <ol> [$50,000]. 
   
  (c) Maximum amount of loan guaranty. The department's net exposure for 
financial assistance to a business, including all its affiliates, may not any 
one time exceed <nl>75% or<ol> 90% of the loan. This amount may not exceed 
$350,000, except in those instances where substantial job creation is a major 
component. 
   
  (d) Extent of participation. The department may participate in a loan guaranty 
to the extent necessary and appropriate to facilitate the required financing. 
The applicant may seek co-participation in financial assistance from other 
private and governmental sources, including the Small Business Administration, 
Farmers Home Administration, community development block grant, and private 
sources. In any event, the department's maximum participation in a loan guaranty 
may not exceed <nl>75% or<ol> 90% of the principal amount of the loan, and the 
private lender must remain at risk for at least 10% of the principal amount. 
   
  (e) Maturity. The maturity of a loan guaranteed by the department may not 
exceed 15 years, subject to the useful life of the assets being financed. 
   
  (f) Security. Loans must be secured by a shared first lien with the department 
with collateral of a type, amount, and value which, considered with other 
criteria, affords reasonable assurance of repayments. 
   
  (g) Interest rates and fees. The lender may charge fees and a legal rate of 
interest on guaranteed loans. 
   
  (h) Fees. A guaranty fee of <nl>2.0%<ol> [1.5%] of the principal balance 
guaranteed is payable by the lender to the department. A nonrefundable 
application fee will also be required in the amount of $250. 
   
  (i) Reporting requirements. 
 
  (1) Reports by lender. The lender shall report in writing to the department as 
provided in the guaranty agreement. Reports must show the progress, repayment 
status, and principal balance, outstanding or undisbursed, for each loan 
guaranteed by the department. 
   
  (2) Reports by user. The user shall provide annual financial reports. If 
requested by the department, the user shall submit other reports or 
documentation reasonably related to an assessment of the user's compliance with 
the Act and this chapter, or the terms of the loan agreement or the department's 
guaranty. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on January 12, 1994. 
 TRD-9434439 
  Deborah C. Kastrin 
 Acting Executive Director 
 Texas Department of Commerce 
    Earliest possible date of adoption: February 14, 1994 
 For further information, please call: (512) 320-9401 
         
                   
  TITLE 16. ECONOMIC REGULATION 
 Part IV. Texas Department of Licensing and Regulation 
  Chapter 68. Elimination of Architectural Barriers 
  
  16 TAC sec.sec.68.1, 68.10, 68.62, 68.80, 68.101-68.103, 68. 105-68.112 
 
  (Editor's note: The text of the following sections proposed for repeal will 
not be published. The sections may be examined in the offices of the Texas 
Department of Licensing and Regulation or in the Texas Register office, Room 
245, James Earl Rudder Building, 1019 Brazos Street, Austin.) 
   
  The Texas Department of Licensing and Regulation proposes the repeal of 
sec.sec.68.1, 68.10, 68.62, 68.80, 68.101-68.103, and 68.105-68.112, concerning 
standards for the elimination of architectural barriers encountered by persons 
with disabilities in buildings and facilities subject to the Architectural 
Barriers Act, Article 9102, Texas Civil Statutes. The sections are being 
repealed to allow for the adoption of new accessibility standards intended to be 
consistent with those adopted under federal law in accordance with sec.5(c) of 
the Act. 
 James D. Brush, II, director, Policies and Standards Division, has determined 
that for the first five-year period the repeals are in effect there will be no 
fiscal implications for state or local government as a result of enforcing or 
administering the repeals. 
 Mr. Brush also has determined that for each year of the first five years the 
repeals are in effect the public benefit anticipated as a result of enforcing 
the repeals will be improved accessibility for persons with disabilities and 
increased compliance with state and federal laws. There will be no effect on 
small businesses. There is no anticipated economic cost to persons who are 
required to comply with the repeals as proposed. 
 Comments on the proposal may be submitted to James D. Brush, II, Director, 
Policies and Standards, Texas Department of Licensing and Regulation, P.O. Box 
12157, Austin, Texas 78711. 
 The repeals are proposed under Texas Civil Statutes, Article 9102, which 
provide the Texas Department of Licensing and Regulation with the authority to 
adopt standards that are consistent with federal law. 
 The statutes that are affected by these rules are Texas Civil Statutes, 
Articles 9100 and 9102. 
 
 
  sec.68.1. Authority. 
 
   
  sec.68.10. Definitions. 
 
   
  sec.68.62. Advisory Committee. 
 
   
  sec.68.80. Fees. 
 
   
  sec.68.101. General. 
 
   
  sec.68.102. Definitions. 
 
   
  sec.68.103. Subject Buildings and Facilities. 
 
   
  sec.68.105. Review of Plans and Specifications. 
 
   
  sec.68.106. Submission of Compliance Intent. 
 
   
  sec.68.107. Inspections and Verifications. 
 
   
  sec.68.108. Accessibility Certifications and Approvals. 
 
   
  sec.68.109. Corrective Modifications. 
 
   
  sec.68.110. Enforcement Powers. 
 
   
  sec.68.111. Complaints and Investigations. 
 
   
  sec.68.112. Standards and Specifications. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on January 10, 1994. 
 TRD-9434405 
  Jack W. Garison 
 Executive Director 
 Texas Department of Licensing and Regulation 
    Earliest possible date of adoption: February 14, 1994 
 For further information, please call: (512) 463-3127 
         
           Chapter 68. Architectural Barriers 
  
  16 TAC sec.sec.68.1, 68.10, 68.20, 68.21, 68.30-68.33, 68.60-68. 66, 68.70-
68.72, 68.80, 68.90-68.93 
 
  The Texas Department of Licensing and Regulation proposes new sec.sec.68.1, 
68.10, 68.20, 68.21, 68.30-68.33, 68.60-68.66, 68.70-68.72, 68.80, and 68. 90-
68.93, concerning the Architectural Barriers Act, Article 9102. The sections are 
being proposed to clarify, edit, renumber, and reorganize existing rules. 
 James D. Brush, II, director, Policies and Standards Division, has determined 
that for the first five-year period the sections are in effect there will be no 
fiscal implications for state or local government as a result of enforcing or 
administering the sections. 
 Mr. Brush also has determined that for each year of the first five years the 
sections are in effect the public benefit anticipated as a result of enforcing 
the sections will be improved accessibility for persons with disabilities and 
increased compliance with slate and federal laws. Small businesses who construct 
or substantially renovate, modify or alter their facilities and which are 
covered by the statute must comply with the rule as proposed. Anticipated 
economic costs to persons, including small businesses, who are required to 
comply with the rules as proposed are not expected to exceed 1-1/2% of the total 
construction cost. Cost may be slightly higher in renovations or multi-level 
facilities. 
 Comments on the proposal may be submitted to James D. Brush, II, Director of 
Policies and Standards, Texas Department of Licensing and Regulation, P.O. Box 
12157, Austin, Texas 78711. 
 The new sections are proposed under Texas Civil Statutes, Article 9102, which 
provide the Texas Department of Licensing and Regulation with the authority to 
adopt standards. 
 Texas Civil Statutes, Articles 9102 and 9100 are the statutes that are affected 
by these rules. 
 
 
  sec.68.1. Authority.  These rules are promulgated under the authority of the 
Architectural Barriers Act, Texas Civil Statutes, Article 9102 and Texas Civil 
Statutes, Article 9100. 
 
   
  sec.68.10. Definitions.  The following words and terms, when used in this 
chapter shall have the following meanings, unless the context clearly indicates 
otherwise. 
   
   Act-Texas Civil Statutes, Article 9102. 
   
   Building-Any structure used and intended for supporting or sheltering any use 
or occupancy. 
   
   Completion of Construction-That phase of a construction project which results 
in occupancy or the issuance of a certificate of occupancy. 
   
   Construction Documents -Working drawings and specifications used for 
construction of a building or facility. 
   
   Contract Provider -The individual, company, or authority under contract with 
the department to perform plan reviews, inspections, or both. 
   
   Determination of Impracticability-The formal process by which the 
governmental department, agency or unit concerned petitions the department to 
rule on the impracticability of applying one or more of the standards or 
specifications to a building or facility referred to in the Act. 
   
   Facility-All or any portion of buildings, structures, site improvements, 
complexes, equipment, roads, walks, passageways, parking lots, or other real or 
personal property located on a site. 
   
   Limited Application -Any modification or alteration that would permit the 
inclusion of any one or more accessibility standards set forth in department 
rules but which would not constitute substantial renovations. 
   
   Owner-The person or persons, company, corporation, authority, commission, 
board, governmental entity, institution, or any other unit that holds title to 
subject building or facility. 
   
   State Agency-A board, commission, department, office, or other agency of 
State government. 
   
   Substantially Renovated, Modified or Altered-Any construction activity, 
including demolition, involving any part or all of a building or facility. When 
the scope of a project is limited to cosmetic work and normal maintenance, it 
shall not constitute substantial renovation, modification or alteration. 
 
   
  sec.68.20. Registration-Submittal of Construction Documents. 
 
  (a) Construction documents covering each subject building or facility with an 
estimated construction cost of $50,000 or more shall be submitted to the 
department or contract provider prior to commencement of construction. 
   
  (b) An Architectural Barriers Project Registration form must be completed on 
each subject building or facility and submitted along with the construction 
documents and the applicable review fee. 
   
  (c)  State-leased buildings or facilities which are not being constructed or 
substantially renovated shall be registered with the department by completing a 
State Lease Registration form. 
   
  (d) The department may request assistance from county and city departments 
that have construction responsibilities under local ordinances. Such assistance 
may include, but is not limited to project design information, funding 
information, and inspection results. 
   
  (e) The department may inquire of any building owner as to whether or not 
public funds were used in the construction of a building. 
   
  (f) Placement of engineering stakes, delivery of lumber or other construction 
materials to the job site, erection of batter boards, formwork and other such 
work shall be evidence that construction has commenced. The department may 
request copies of invoices or other documentation as verification. 
 
     
  sec.68.21. Registration-Subject Buildings and Facilities. 
 
  (a)  Public buildings or facilities identified in the Act are subject to 
compliance if: 
 
  (1) public funds are used any time during the construction process; 
   
  (2) governmental units donate land or other use of public lands on which 
buildings or facilities are constructed with private funds; 
   
  (3) buildings or facilities are constructed with private funds with the intent 
of donating or deeding to a public entity; or 
   
  (4) tax abatements or other incentives are provided by a public authority. 
     
  (b)  Buildings or facilities that are leased or rented to the state: 
 
  (1)  include space provided at no cost to a state agency for conducting state 
business with or without a written contract; 
   
  (2) may be exempted from compliance if it is determined by the state agency 
that the space will not be used by the public and that the occasion for 
employment for persons with disabilities is improbable because of the essential 
job functions. The agency shall, prior to advertisement for bid, submit to the 
department for a determination a completed Lease Evaluation Form obtained from 
the department. If a Lease Evaluation Form is not submitted, full compliance 
with all applicable standards shall be required. 
     
  (c) The following private entities are considered public accommodations and 
subject to the Act: 
 
  (1)  an inn, hotel, motel, or other place of lodging except for an 
establishment located within a building that contains not more than five rooms 
for rent or hire and that is actually occupied by the proprietor of such 
establishment as the residence of such proprietor; 
   
  (2) a restaurant, bar, or other establishment serving food or drinks; 
   
  (3) a motion picture house, theater, concert hall, stadium, or other place of 
exhibition or entertainment; 
   
  (4) an auditorium, convention center, lecture hall, or other place of public 
gathering; 
   
  (5) a bakery, grocery store, clothing store, hardware store, shopping center, 
or other sales or rental establishment; 
   
  (6) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, 
shoe repair service, funeral parlor, gas station, office of an accountant or 
lawyer, pharmacy, insurance office, professional office of a health care 
provider, hospital, or other service establishment; 
   
  (7) a terminal, depot, or other station used for specified public 
transportation; 
   
  (8) a park, zoo, amusement park, or other place of recreation; 
   
  (9)  a museum, library, gallery, or other place of public display or 
collection; 
   
  (10) a nursery, elementary, secondary, undergraduate, or postgraduate private 
school, or other place of education; 
   
  (11) a day care center, senior citizen center, homeless shelter, food bank, 
adoption agency, or other social service center establishment; and 
   
  (12) a gymnasium, health spa, bowling alley, golf course, or other place of 
exercise or recreation. 
     
  (d)  Commercial facilities are subject to the Act if they are intended for 
non-residential use and if their operations will affect commerce. Such 
application shall not include railroad locomotives, railroad freight cars, 
railroad cabooses, railroad cars described in the Americans with Disabilities 
Act (ADA), sec.242, or covered under the ADA, Title III, railroad rights-of-way, 
or facilities that are covered or expressly exempted from coverage under the 
federal Fair Housing Act of 1968. 
   
  (e) Privately owned buildings or facilities not otherwise subject to the Act, 
are eligible for inclusion in the Architectural Barriers program if the building 
owner or designated agent requests assistance from the department and pays the 
applicable fee(s). 
 
     
  sec.68.30. Exemptions.  Buildings or facilities owned and operated by the 
federal government. 
 
   
  sec.68.31. Variance Application. <ol> If the owner or the designated agent 
believes that application of the standards is irrelevant to the nature, use, or 
function of the building or facility or that compliance with any particular 
standard or specification is impracticable, a separate variance application 
shall be submitted for each building, facility or condition for determination 
prior to commencement of construction. 
 
  (1) If a variance application is not submitted prior to construction and the 
building or facility owner or the designated agent believes a request is 
justified, such request shall be submitted as soon as possible following 
commencement of construction. 
   
  (2) Variance requests received after construction has commenced shall be 
decided based on preconstruction conditions and circumstances. 
   
  (3) Variance requests will not be accepted after completion of construction 
(based on the recorded estimated completion date). Deficiencies noted after 
completion will be addressed as an enforcement issue as provided by sec.68.91 of 
this title (relating to Enforcement Authority). 
   
  (4) Requests to waive or modify a standard shall be submitted on a Variance 
Application obtained from the department. Written cost estimates as well as 
drawings justifying the cost of compliance shall be attached. 
   
  (5)  Variance applications must be submitted by the owner or the designated 
agent. 
   
  (6) Variance applications shall be accompanied by the applicable fee. 
   
  (7) After receiving the application the department shall decide whether such 
standards or specifications are impracticable and shall determine the extent of 
compliance required. 
   
  (8) The department may consult with others, including state agencies having 
rehabilitation functions or that extend direct services to persons with 
disabilities and members of the Architectural Barriers Advisory Committee. 
   
  (9) The applicant shall be advised of the decision in writing. 
   
  (10) The department may perform inspections when it has reason to believe that 
a change in function or utility has occurred within a building or facility that 
has previously been granted a variance or waiver. 
 
     
  sec.68.32. Appeals. 
 
  (a) Appeal of staff decision disapproving a variance or waiver application 
shall be submitted to the Director of Policies and Standards Division within 14 
days of notification of staff decision. 
   
  (b) Appeals to the Director of Policies and Standards Division shall be 
accompanied by the applicable fee. 
   
  (c) The Division Director's decision may be appealed to the Commissioner of 
the Texas Department of Licensing and Regulation in writing within ten days of 
notification of the Division Director's decision. 
   
  (d) The party making the appeal shall be advised in writing of the 
determination. 
 
     
  sec.68.33. Technical Deviation -State Leased Facilities.  <ol> Deviations of a 
technical specification relating to a state-leased facility found in non-
compliance may be considered by the department if the occupying agency believes 
the deviation is minor and will not adversely affect persons with disabilities. 
 
  (1) Requests for technical deviations shall be submitted on a Technical 
Deviation Request form obtained from the department. 
   
  (2) Technical deviation requests may be submitted by the lessee or occupying 
agency. 
   
  (3) After receiving the request the department shall decide whether a 
technical deviation will be permitted. The department may consul with others 
including state agencies having rehabilitation functions or that extend direct 
services to persons with disabilities and members of the Architectural Barriers 
Advisory Committee. 
   
  (4) The department will send written determination to the party submitting the 
request. 
 
     
  sec.68.60. Responsibilities of Department-Review of Construction Documents. 
 
  (a) After review, the person making the submission will be advised in writing 
of the results. Construction documents will be approved only when the documents 
reflect full compliance with applicable accessibility standards. Conditional 
approval may be issued when it is determined that resubmittals are not 
warranted. Conditional approvals will refer to all items noted during the review 
which must be included in the design and construction of the building or 
facility. 
   
  (b) Construction documents received by the department that contain prepaid 
return postage or instructions to return the documents C.O.D. will be returned 
immediately after review, unless required for future reference by the 
department. Construction documents received for review which do not have prepaid 
return postage or other instructions may be destroyed 30 days after the date of 
the department's review reply. 
 
     
  sec.68.61. Responsibilities of the Department-Resubmittals.  When the 
department or contract provider requires verification of design revisions, such 
verifications may be made by submission of revised construction documents, 
change orders, addenda, and letters specifically addressing each revision. 
 
  (1) Resubmittals will be reviewed and the person making the resubmittal will 
be advised of the results. Resubmittals will be approved only when the 
resubmittal reflects full compliance with applicable accessibility standards. 
Conditional approval may be issued when it is determined that additional 
submittals are not warranted. 
   
  (2) When unsolicited verification of design revisions are submitted, they will 
be reviewed as time permits. 
   
  (3) Resubmittals received after completion of construction (based on the 
recorded estimated completion date) may not be reviewed but will become a matter 
of record. 
 
     
  sec.68.62. Responsibilities of the Department-Inspections. 
 
  (a)  Inspections will be performed during the normal working hours of the 
owner, authority, or unit concerned. Any deviation from normal working hours 
shall be at the convenience of the owner, authority, or unit concerned. 
   
  (b)  The owner or designated agent must be present during the inspection. 
   
  (c) During each inspection, the inspector will make field notes which will 
become part of the file maintained on each project and will be a source document 
in support of any subsequent reports, notifications or other actions. 
   
  (d) The owner or designated agent will be advised of the results of each 
inspection. 
 
     
  sec.68.63. Responsibilities of the Department-Corrective Modifications. When 
corrective modifications to achieve compliance are required, the owner or 
designated agent will be furnished a list of deficiencies and given a deadline 
for completing modifications. An extension may be granted by the department if 
satisfactory evidence is presented showing that the time period specified is 
inadequate to perform the necessary corrections. Corrective modifications are 
subject to verification. 
 
   
  sec.68.64. Responsibilities of the Department-Certificates and Approvals. 
 
  (a) A Certificate of Substantial Compliance is issued to the owner or 
designated agent by the department upon completion of a satisfactory inspection 
or other form of verification deemed appropriate by the department, that subject 
building or facility in its entirety is in substantial compliance with 
applicable standards. 
   
  (b) An Accessibility Approval will be issued to the owner or designated agent 
upon satisfactory verification that a subject building or facility or portions 
thereof which has been substantially renovated, modified, or altered is in 
substantial compliance with applicable standards. 
   
  (c) Project information pertaining to certifications and approvals may be 
requested by completing a Project Information Request form obtained from the 
department and submitting it to the department with the appropriate fee. 
 
     
  sec.68.65. Advisory Committee. 
 
  (a) The purpose of the Architectural Barriers Advisory Committee is to review 
rules relating to the Architectural Barriers program and recommend changes in 
the rules to the commission and the commissioner. 
   
  (b) Recommendations of the Committee will be transmitted to the commissioner 
through the director of policies and standards. 
   
  (c) Committee meetings are called by the chair or commissioner. Meetings in 
excess of those mandated by the Act shall be authorized by the commissioner or 
the commissioner's designee. 
   
  (d)  Expenses reimbursed to committee members shall be limited to authorized 
expenses incurred while on committee business and travelling to and from 
committee meetings. The least expensive method of travel should be used. 
   
  (e) Expenses related to subcommittee meetings will be reimbursed only if 
authorized by the commissioner or the commissioner's designee. These expenses 
will be reimbursed only to the committee members appointed to the subcommittee 
or requested by the chair to assist or appear before the subcommittee. 
   
  (f) Expenses paid to committee members shall be limited to those allowed by 
the State of Texas Travel Allowance Guide and the Texas Department of Licensing 
and Regulation policies governing travel allowances for employees. 
   
  (g) The committee shall consist of eight members, four of which will be 
building professionals and four of which will be consumers, comprised of persons 
with disabilities. Committee members will serve staggered three-year terms. Two 
building professional positions and two consumer positions will expire every 
three years and one building professional and one consumer position will expire 
in other years. 
   
  (h) Terms will expire August 31 of each year. Initial terms will be 
established so that one building professional position and one consumer position 
will expire on August 31 of the years 1994, 1995, 1996, and 1997. 
 
     
  sec.68.66. Responsibilities of the Department-Contract Providers. 
 
  (a) The purpose of the contract providers program is to assist the department 
in performing review and inspection services. 
   
  (b) Contract providers for plan reviews shall utilize individuals in their 
employ who meet the following qualifications: 
 
  (1) Certification as a building plans examiner or accessibility specialist 
granted by a model building code organization and either of the following: 
 
  (A) degree in architecture, architectural engineering, interior design or 
equivalent and a minimum of one year experience related to building planning, 
accessibility design or review, or equivalent; or 
   
  (B) eight years' experience related to building planning, accessibility design 
or review, or equivalent. 
     
  (2)  Satisfactory completion of Contractor Provider Application and department 
training and certification program. 
     
  (c) Contract providers for inspections shall utilize individuals in their 
employ who meet the following qualifications: 
 
  (1) minimum of a high school diploma or equivalent; 
   
  (2) certification as a building inspector or accessibility specialist as 
granted by a model building code organization; and 
   
  (3) satisfactory completion of Contractor Provider Application and department 
training and certification program. 
     
  (d) Contract providers may collect fees for services. The filing fee 
established by sec.68.80 of this title (relating to Fees) shall be collected by 
the contract provider at the time of the plan review and submitted with the 
Project Registration form on each project when it is forwarded to the department 
by the contract provider. 
   
  (e)  Contract providers shall adhere to the Act, department rules, and all 
procedures established by the department for plan reviews and inspections. 
   
  (f) Unannounced monitoring of contract providers shall be performed by the 
department as stipulated in the contract. 
 
     
  sec.68.70. Responsibilities of the Registrant-Construction Document 
Submittals. 
 
  (a) Construction documents submitted for review shall include all disciplines. 
 
  (1) Responsible design professionals shall seal, sign and number each 
document. 
   
  (2) In projects involving multiple phases, construction documents shall be 
submitted prior to the commencement of construction of each phase. 
   
  (3) In projects involving "fast-track" construction, partial submittals may be 
made. Submittals shall be made prior to the commencement of the included portion 
of the work. 
   
  (4)  All other requirements of this section shall be met and owners and design 
professionals are not relieved of any other obligations under the Act or these 
rules. 
     
  (b) Unless one person has overall responsibility, construction documents 
covering projects involving separate areas of responsibility must be submitted 
by persons responsible for each area. 
   
  (c) A completed Architectural Barriers Project Registration form and review 
fee shall accompany documents. 
   
  (d) When bid packages involve multiple facilities such as prototypes or other 
identical facilities, only one set of building drawings need be submitted. A 
registration form must be submitted on each subject building and facility. 
Drawings noting site adaptations are required for each location. 
   
  (e) Cost of submitting and returning construction documents must be paid by 
the sender. 
   
  (f) If construction documents were not submitted prior to commencement of 
construction, they shall be submitted for review as soon as possible following 
commencement of construction. The Act shall be adhered to regardless of the time 
the construction documents were submitted for review. 
   
  (g)  Construction documents that are automatically approved after 30 days as 
provided by the Act are still required to comply with applicable standards. Any 
noncomplying item detected, even though 30 days has elapsed, must comply upon 
completion of the project. 
 
     
  sec.68.71. Responsibilities of the Registrant-Resubmittals.  Verification of 
design revisions shall be submitted upon request. 
 
   
  sec.68.72. Responsibilities of the Registrant-Corrective Modifications. 
Verification of corrective modifications shall be submitted as directed. 
 
   
  sec.68.80. Fees. 
 
  (a) Plan review and inspection fees collected by the department shall be 
determined by the estimated project cost, not including site acquisition, 
furnishings, or equipment, and assessed according to the fee schedule. In 
instances involving multiple facilities with identical drawings, but site-
adapted, and designed by the same individual or firm and bid as one package, the 
plan review fee shall be based on the total construction cost. However, separate 
inspection fees shall be required. The plan review fee must accompany the 
registration form and be submitted with the construction documents. The 
inspection fee must be paid and the department notified of point of contact 
within 30 days of completion of construction. 
   
  (b) Fee Schedule: 
 
  [graphic] 
    
  (c) When the estimated construction cost is less than $50,000 and a review, 
inspection or both are requested, a $50 plan review fee and a $50 inspection fee 
shall be paid. 
   
  (d) All fees must be paid prior to service being performed. If payment is not 
received within 30 days of receipt of construction documents they will be 
destroyed. 
   
  (e) When inspection fees are not received for purposes of inspecting state 
lease facilities covered by sec.68.21 of this title (relating to Subject 
Buildings and Facilities), notification will be given to the lessee with the 
request that the required fee be withheld and paid to the department from the 
monthly lease payment. 
   
  (f) In instances of state occupied space and facilities provided at no cost 
and covered by sec.68.21, the obligation for payment of the inspection fee lies 
with the lessee. 
 
     
  sec.68.90. Sanctions-Administrative Sanctions or Penalties.  <ol> If a person 
violates the Act, or a rule or order adopted or issued by the Commissioner 
relating to the Act, the Commissioner may institute proceedings to impose 
administrative sanctions or recommend administrative penalties or both, in 
accordance with Texas Civil Statutes, Article 9100 and Chapter 60 of this title 
(Relating to Texas Commission of Licensing and Regulation). 
 
   
  sec.68.91. Enforcement Authority. <ol> The department may not. initiate an 
administrative penalty under Texas Civil Statutes, Article 9100, sec.17 until: 
 
  (1) the department has complied with sec.68.62 of this title relating to 
(Responsibilities of the Department-Inspections); 
   
  (2)  the department has determined that compliance had not been accomplished 
upon expiration of the allotted time period per sec.68.63 of this title 
(relating to Responsibilities of the Department-Corrective Modifications), and 
that the owner, authority, or unit involved has not shown evidence of performing 
the prescribed correction; 
   
  (3) the authority, building owner, or other appropriate persons have been 
given final notification by the department requesting compliance within 90 days 
from the date on which the notice was received. The final notice shall be issued 
by registered or certified mail, return receipt requested, and shall advise the 
party or parties involved of the failure to comply, the action proposed to be 
taken, the specified provisions under which the proposed action is to be taken, 
and basis for the action; and 
   
  (4) the expiration of at least 90 days from receipt by the owner of the final 
notice. Request for extension of time may be made by the owner, designated 
agent, or appropriate parties, however, such requests must be received by the 
commissioner prior to the expiration of the 90-day period and must contain 
evidence of good faith. 
 
     
  sec.68.92. Failure to Submit. Architects, engineers, and interior designers 
who fail to comply with the Act, sec.5(d), shall be reported to the Texas Board 
of Architectural Examiners or the State Board of Registration for Professional 
Engineers, as appropriate, and a copy of the report shall be furnished to the 
architect, engineer, or interior designer affected. 
 
   
  sec.68.93. Complaints and Investigations. Any person who suspects that any 
building or facility is not in compliance may submit a complaint. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on January 10, 1994. 
 TRD-9434406 
  Jack W. Garison 
 Executive Director 
 Texas Department of Licensing and Regulation 
    Earliest possible date of adoption: February 14, 1994 
 For further information, please call: (512) 463-3127 
         
           Chapter 69. Manufactured Housing 
  
  General Requirements 
 
  16 TAC sec.69.123 
 
  The Texas Department of Licensing and Regulation proposes an amendment to 
sec.69.123, concerning the selling of manufactured homes. The amendment 
clarifies advertising restrictions. 
 James D. Brush, II, director, Policies and Standards Division, has determined 
that for the first five-year period the section is in effect there will be no 
fiscal implications for state or local government as a result of enforcing or 
administering the section. 
 Mr. Brush also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be clarification of existing rules. There will be no effect on 
small businesses. There is no anticipated economic cost to persons who are 
required to comply with the section as proposed. 
 Comments on the proposal may be submitted to James D. Brush, II, Director, 
Policies and Standards Division, Texas Department of Licensing and Regulation, 
P.O. Box 12157, Austin, Texas 78711. 
 The amendment is proposed under Texas Civil Statutes, Article 5221f, 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 of the Act. 
 The statute affected by these rules is Texas Civil Statutes, Article 5221f. 
 
 
  sec.69.123. Retailer Sales Information. 
 
  (a)-(b) (No change.) 
   
  <nl>(c) use of words or phrases, which imply the consumer is buying direct 
from the manufacturer is not permitted in advertising since the Act prohibits a 
manufacturer from selling directly to a consumer. Use of words or phrases such 
as "factory direct," "factory outlet," "factory direct outlets," "buy direct 
from factory," or other similar words or phrases which imply that the consumer 
is buying from the manufacturer is prohibited in all forms of advertising. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on January 10, 1994. 
 TRD-9434403 
  Jack W. Garison 
 Executive Director 
 Texas Department of Licensing and Regulation 
    Earliest possible date of adoption: February 14, 1994 
 For further information, please call: (512) 463-3127 
         
             
  Titling 
 
  16 TAC sec.sec.69.202, 69.204, 69.207 
 
  The Texas Department of Licensing and Regulation proposes amendments to 
sec.sec.69.202, 69.204, and 69.207, concerning the titling of manufactured 
homes. Section 69.202 and sec.69.207 delete the requirement that fees be paid by 
a cashier's check or money order while sec.69.204 deletes the requirement to 
write the word "none" in spaces on certain title forms if they do not apply. 
 James D. Brush, II, director, Policies and Standards Division, has determined 
that for the first five-year period the sections are in effect there will be no 
fiscal implications for state or local government as a result of enforcing or 
administering the sections. 
 Mr. Brush also has determined that for each year of the first five years the 
sections are in effect the public benefit anticipated as a result of enforcing 
the sections will be clarification of existing rules which will make the titling 
process more efficient. There will be no effect on small businesses. There is no 
anticipated economic cost to persons who are required to comply with the 
sections as proposed. 
 Comments on the proposal may be submitted to James D. Brush, II, Director, 
Policies and Standards Division, Texas Department of Licensing and Regulation, 
P.O. Box 12157, Austin, Texas 78711. 
 The amendments are proposed under Texas Civil Statutes, Article 5221f, 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 of the Act. 
 The statute affected by these rules is Texas Civil Statutes, Article 5221f. 
 
 
  sec.69.202. Fees for Title Documents. 
 
  (a) Title Transaction Fees. 
 
  (1) There shall be a fee of $35 for each title transaction. <nl>The<ol> 
[Except as may otherwise be authorized, the] fee <nl>may<ol> [shall] be 
submitted in the form of a [cashier's] check or money order payable to the Texas 
Department of Licensing and Regulation. The fee shall accompany the required 
documents and affidavits forwarded to the department at its principal office in 
Austin. Ten dollars of the fee for each title transaction shall be deposited in 
the manufactured homeowners' recovery fund. A title transaction is: 
 
  (A)-(F) (No change.) 
     
  (2) (No change.) 
     
  (b)-(e) (No change.) 
 
     
  sec.69.204. Titling Forms. 
 
  (a) (No change.) 
   
  (b) Affidavit of disposition, application for issuance of document of title to 
a manufactured home. 
 
  (1) The Texas original certificate of ownership, manufactured home document of 
title shall be issued on the basis of information submitted on a properly 
executed affidavit of disposition containing the following information: 
 
  (A) (No change.) 
   
  (B) the model designation [or, if none exists, the notation "none"]; 
   
  (C)-(F) (No change.) 
     
  (2)-(4) (No change.) 
   
  (5) Other information shall include, but not be limited to, the following: 
 
  (A)-(B) (No change.) 
   
  (C) the name and address of the lienholder, if any, and the date of the lien. 
[If the home is not subject to a lien, "none" shall be entered in the space 
provided for the lienholder.] 
     
  (6)-(9) (No change.) 
     
  (c) Affidavit of Installation. 
 
  (1)-(2) (No change.) 
   
  (3) If the home was, or will be, installed as a result of the sale or 
transfer, an installation inspection fee of $20 must be submitted along with the 
affidavit of installation and a completed Installation Report (form TDLR-MH-
7016, revised 8-89). The installation inspection fee must be submitted 
separately from the titling fee in the form of a [cashier's] check or money 
order payable to the Texas Department of Licensing and Regulation. 
     
  (d) (No change.) 
   
  (e) Texas original certificate of ownership, manufactured home document of 
title. 
 
  (1)-(2) (No change.) 
   
  (3) Each certificate shall be authenticated by the facsimile signature of the 
commissioner [and the director of the Manufactured Housing Division of the 
department]. The facsimile <nl>signature <ol> [signatures] shall be <nl>that<ol> 
[those] of the <nl>person<ol> [persons] holding such <nl>position <ol> 
[positions] at the time the certificates are printed, and the validity of the 
certificates is not affected by any subsequent change. 
   
  (4) (No change.) 
   
  (5) If the home is subject to any lien, the original of the document of title 
shall be mailed to the first lienholder of record. A nonnegotiable copy shall be 
mailed to the purchaser(s) and to the second lienholder, if any. If no lien 
exists[, the word "none" shall be placed in the first lien section of the 
document of title, and] the original shall be mailed to the purchaser(s). 
 
       
  sec.69.207. Reinstatement of Cancelled Documents of Title. 
 
  (a) A document of title issued by the department to a manufactured home which 
has been cancelled because the home has been affixed to real estate by 
installation on a permanent foundation may be reinstated subject to the 
following documents being filed with the department: 
 
  (1)-(2) (No change.) 
   
  (3) a properly executed affidavit of disposition accompanied by a [cashier's] 
check or money order for $35; 
   
  (4)-(5) (No change.) 
     
  (b) (No change.) 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on January 10, 1994. 
 TRD-9434404 
  Jack W. Garison 
 Executive Director 
 Texas Department of Licensing and Regulation 
    Earliest possible date of adoption: February 14, 1994 
 For further information, please call: (512) 463-3127 
         
                   
  TITLE 22. EXAMINING BOARDS 
 Part XX. Texas Board of Private Investigators and Private Security Agencies 
  Chapter 421. Notice of Change or Fact 
  
  22 TAC sec.421.1 
 
  The Texas Board of Private Investigators and Private Security Agencies 
proposes an amendment to sec.421.1, concerning Notice of Change or Fact. The 
Board has determined that the addition of this section is necessary. 
 Clema D. Sanders, executive director, has determined that for the first five-
year period the section is in effect there will be no fiscal implications for 
state or local government as a result of enforcing or administering the section. 
 The cost of compliance with the rule for small businesses will be none. 
 Ms. Sanders also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be to insure that companies regulated by this agency are in strict 
compliance with the Act. There will be no effect on small businesses. There is 
no anticipated economic cost to persons who are required to comply with the 
section as proposed. 
 Comments on the proposal may be submitted to Clema D. Sanders, Texas Board of 
Private Investigators and Private Security Agencies, P.O. Box 13509, Austin, 
Texas 78711. 
 The amendment is proposed under Texas Civil Statutes, Article 4413(29bb), 
sec.11(a)(3) which provide the Texas Board of Private Investigators and Private 
Security Agencies with the authority to promulgate all rules and regulations 
necessary in carrying out the provisions of the Act. 
 The statute affected by the amendment is Texas Civil Statutes, Article 
4413(29bb). 
 
 
  sec.421.1. Notice of Change or Fact. Whenever the Act or Board Rules require a 
notice to the Board of any change or fact, the notice shall be in writing and 
shall contain: 
 
  (1) licensee's name and license number; 
   
  (2) details of the change or fact; 
   
  (3) the effective date of the change or fact; and 
   
  (4) the signature of the <nl>manager or branch manager.<ol> [licensee or 
manager.] 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on January 6, 1994. 
 TRD-9434296 
  Clema D. Sanders 
 Executive Director 
 Texas Board of Private Investigators and Private Security Agencies 
    Earliest possible date of adoption: February 14, 1994 
 For further information, please call: (512) 463-5545 
         
             Chapter 429. Examination 
  
  22 TAC sec.429.2 
 
  The Texas Board of Private Investigators and Private Security Agencies 
proposes an amendment to sec.429.2, concerning Examination. The Board has 
determined that the addition of this section is necessary to comply with House 
Bill 1862. 
 Clema D. Sanders, executive director, has determined that for the first five-
year period the section is in effect there will be no fiscal implications for 
state or local government as a result of enforcing or administering the section. 
 Ms. Sanders also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be to insure that the licensee is knowledgeable in the business in 
which he/she is licensed. There will be no effect on small businesses. There is 
no anticipated economic cost to persons who are required to comply with the 
section as proposed. 
 Comments on the proposal may be submitted to Clema D. Sanders, Texas Board of 
Private Investigators and Private Security Agencies, P.O. Box 13509, Austin, 
Texas 78711. 
 The amendment is proposed under Texas Civil Statutes, Article 4413(29bb) 
sec.11(a)(3), which provide the Texas Board of Private Investigators and Private 
Security Agencies with the authority to promulgate all rules and regulations 
necessary in carrying out the provisions of the Act. 
 The statute affected by the amendment is Texas Civil Statutes, Article 
4413(29bb). 
 
 
  sec.429.2. Examination. 
 
  (a) All applicants to qualify as manager or supervisor shall be required to 
pass a written examination. This includes applicants: 
 
  (1)<nl> Reinstating<ol> [Renewing and reinstating ] a suspended license. 
   
  (2) Applying to manage or supervise an original license <nl>or adding 
additional category or categories to an existing license. 
   
  (3) Qualifying to manage or supervise another licensee, other than one 
currently being managed or supervised. 
     
  (b)-(d) (No change.) 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on January 6, 1994. 
 TRD-9434295 
  Clema D. Sanders 
 Executive Director 
 Texas Board of Private Investigators and Private Security Agencies 
    Earliest possible date of adoption: February 14, 1994 
 For further information, please call: (512) 463-5545 
         
             Chapter 436. Alarm Installer Training and Testing 
  
  22 TAC sec.sec.436.1-436.6 
 
  The Texas Board of Private Investigators and Private Security Agencies 
proposes new sec.sec.436.1-436.6, concerning Alarm Installer Training and 
Testing. The Board has determined that the new rules are necessary to comply 
with Texas Civil Statutes, Article 4413(29bb), sec.3(A), which was revised 
September 1, to implement the provisions of House Bill 1808. 
 Clema D. Sanders, executive director, has determined that there will be fiscal 
implications as a result of enforcing or administering the rules. The effect on 
state government for the first five-year period the rules are in effect will be 
an estimated additional cost of $7,128 in 1994, $7,128 in 1995, $7,128 in 1996, 
$7,128 in 1997, and $7,128 in 1998; and an estimated increase of $12,850 in 
1994, $12,850 in 1995, $12,850 in 1996, $12,850 in 1997, and $12, 850 in 1998. 
There will be no effect on local government during the first five-year period 
the rules are in effect. 
 This rules are promulgated under the authority of Texas Civil Statutes, Article 
4413(29bb), sec.11(a)(3). 
 The cost of compliance with the rules for small businesses will be $100 to $200 
per alarm systems installer. 
 The cost of compliance for small business will be the same as the cost of 
compliance for the largest businesses affected by the rules. 
 Ms. Sanders also has determined that for each year of the first five years the 
rules as proposed are in effect the public benefits anticipated as a result of 
enforcing the rules as proposed will be the assurance of properly installed 
burglar alarm systems. There is no anticipated economic cost to persons who are 
required to comply with the rules as proposed if the employer pays for the 
training. 
 Comments on the proposal may be submitted to Clema D. Sanders, Texas Board of 
Private Investigators and Private Security Agencies, P.O. Box 13509, Austin, 
Texas 78711. 
 The new rules are proposed under Texas Civil Statutes, Article 4413(29bb), 
which provide the Texas Board of Private Investigators and Private Security 
Agencies with the authority to promulgate all rules and regulations necessary in 
carrying out the provisions of the Act. 
 The statute affected by the rules is Texas Civil Statutes, Article 4413(29bb). 
 
 
  sec.436.1. Application for Training Course Approval. 
 
  (a) An application for alarm installer training school approval shall be on a 
form prescribed by the Board to show proof that the applicant: 
 
  (1) has developed an adequate nationally recognized training course as its 
curriculum; 
   
  (2) will offer courses consisting of at least 20 hours of instruction in alarm 
system installation; 
   
  (3) will provide, as a part of the training program, a test that demonstrates 
the participant's qualifications to perform the duties allowed by the 
participant's registration; 
   
  (4) will offer at least two training courses each year within 100 miles of 
each county in the state that has a population in excess of 500,000 people; 
   
  (5) has, or has the capacity to provide, adequate space, qualified 
instructors, and proper instructional material; and 
   
  (6) has appointed a manager who will be responsible for training. 
     
  (b) a letter of approval shall be granted by the Director to all qualified 
schools and shall be valid for two years and may be renewed by submitting an 
application for renewal 30 day prior to the expiration date along with any 
required fees. 
   
  (c) A manager and a qualified instructor must have successfully completed a 
nationally recognized course in alarm installation consisting of at least 20 
hours and must have assisted in instruction of at least two other nationally 
recognized courses in alarm installation consisting of at least 20 hours each. 
Approval by the Director of managers and qualified instructors shall be valid 
for two years. 
 
     
  sec.436.2. Attendance, Progress and Completion Records Required.  A Board 
approved training school shall: 
 
  (1) issue an original Certificate of Completion to each qualifying student 
within 14 days after the student qualifies; and 
   
  (2) maintain adequate records to show attendance and progress of grades of 
students. 
 
     
  sec.436.3. Certificate of Completion Required. 
 
  (a) A person who is employed as an alarm systems installer must hold a 
Certificate of Completion in order to renew his initial registration except that 
a person that holds a valid registration on September 30, 1993, does not have to 
obtain a Certificate of Completion for so long as he maintains his registration 
with his then current licensee. 
   
  (b) The Certificate of Completion shall contain the: 
 
  (1) name and approval number of the school; 
   
  (2) date of completion; 
   
  (3) name and signature of the manager of the school; and 
   
  (4) full name and social security number of the student. 
     
  (c) The Certificate of Completion shall indicate that the student has passed 
the required test and shall contain the words "has successfully completed the 
alarm installers training course approved the Texas Board of Private 
Investigators and Private Security Agencies". 
 
     
  sec.436.4. Records Required on Manager. A Board-approved training school shall 
maintain on file with the Board the name and signature of its manager and shall 
notify the Board in writing when there has been a change in the school's 
manager, giving the Board the name of the new manager and furnishing the Board a 
signature card of the new manager within 14 days after such change. 
 
   
  sec.436.5. Statutory or Rules Violations. 
 
  (a) The Board may refuse to accept a Certificate of Completion from a training 
school upon receipt of proof of violation of the Act or Board Rules involving an 
owner, officer, partner, shareholder, manager or instructor. 
   
  (b) The Board may withdraw approval of a training school upon receipt of proof 
that said school has been operated in violation of the Act or Board Rules. 
   
  (c) In the event of a denial of approval of a training school or if the Board 
has withdrawn approval of a training school, the Board shall set forth in 
writing the reasons for the denial or withdrawing of approval. The applicant 
shall have the right to appeal in accordance with the Act and Board Rules. If 
the applicant fails to exercise his right of appeal within 30 days after receipt 
of notice of denial or withdrawing of approval, the notice shall become final. 
 
     
  sec.436.6. Continuing Education. 
 
  (a) Beginning September 30, 1994, a person employed as an alarm systems 
installer must obtain 12 hours of continuing education credits for education in 
alarm installation in order to renew any registration subsequent to the renewal 
of his initial registration. 
   
  (b) A person that has not obtained his continuing education credits by the 
date his registration expires may receive a temporary registration for three 
months, after which time he must have met the requirements of this section. A 
temporary registration that has been granted under this section may not be 
renewed except as a registration in full compliance with this section. 
   
  (c) The Director shall approve classes for continuing education that she 
determines meets the qualifications of these rules and the Act. Such classes may 
be provided for and taught by any organization or person that, in the Director's 
discretion, has the knowledge and experience to provide such information, 
including informal classes by manufacturers of alarm products; informal classes 
by alarm associations; or other qualified entity. A person wishing to conduct a 
continuing education class must provide the Director a description of the 
contents of the curriculum and the qualifications of any instructor. The 
Director shall inform the person wishing to conduct the class of her approval or 
disapproval within 15 days of receiving the request. The Director may delegate 
this responsibility to other employees of the Board. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on January 6, 1994. 
 TRD-9434297 
  Clema D. Sanders 
 Executive Director 
 Texas Board of Private Investigators and Private Security Agencies 
    Earliest possible date of adoption: February 14, 1994 
 For further information, please call: (512) 463-5545 
         
                 
  TITLE 31. NATURAL RESOURCES AND CONSERVATION 
 Part X. Texas Water Development Board 
  Chapter 355. Research and Planning Fund 
  
  Subchapter B. Economically Distressed Areas Facility Planning 
 
  31 TAC sec.355.71, sec.355.73 
 
  The Texas Water Development Board (the board) proposes amendments to 
sec.355.71 and sec.355.73. Section 355.71 is being amended to include criteria 
to determine the percentage of board funding for the cost of facility planning. 
Under the current section, the board will routinely fund up to 75% of the cost 
of the facility planning unless the board determines that the applicant is 
entitled to hardship status in which case the board would fund 100% of the 
facility planning. The circumstances which would entitle a community to hardship 
status, have heretofore been undefined. The amendment would remove the hardship 
distinction and set forth the criteria which the board will consider in 
determining the percentage of funds the board will make available to all 
applicants for facility planning. The board further proposes to amend  
s355.73(a)(3) to permit the executive administrator the authority to require the 
preparation of an environmental review consistent with board rule sec.375. 35 
when applicable as part of the scope of work for the facility engineering plans. 
The facility engineering plan is the first step toward acquiring financial 
assistance from the economically distressed areas program for the construction 
of water supply or wastewater treatment facilities. The economically distressed 
areas program has acquired federal funds and in order for eligible applicants to 
use the federal funds the environmental review process identified in sec.375.35 
is required. The proposed amendment would allow the executive administrator to 
require the environmental review required in sec.375.35 in the event the 
applicant may be eligible for federal funds. 
 Pamela Ansboury, director of finance, has determined that there will be fiscal 
implications as a result of administering sec.355.71. The effect on state 
government for the first five-year period that the amendment to sec.355. 71 is 
in effect will be an estimated additional cost of $137,500 for each of the first 
three years and no additional cost for each of the next two years. The effect on 
local government for the first five-year period the rule will be in effect will 
be an estimated reduction in cost of $137,500 for each of the first three years 
and no effect for each of the next two years. Ms. Ansboury has determined that 
for each of the first five years the amendment to sec.355. 71 is in effect, 
there will be no effect on small businesses. 
 Ms. Ansboury also has determined that for each year of the first five years 
that the proposed amendment to sec.355.71 is in effect the public benefits 
anticipated as a result of enforcing the rule as proposed will be that: the 
political subdivisions that are eligible for assistance from the board for 
facility planning grants but financially unable to provide a local contribution 
toward the preparation of the facility engineering plan may still receive 
assistance with the ultimate effect of providing much needed water supply and 
wastewater treatment planning for economically distressed areas. 
 Ms. Ansboury has also determined that there will be no fiscal implications for 
state or local government or small businesses as a result of enforcing or 
administering the sec.355.73. 
 Ms. Ansboury also has determined that for each year of the first five years 
that the proposed amendment to sec.355.71 is in effect the public benefits 
anticipated as a result of enforcing the rule as proposed will be that the 
political subdivisions that are eligible for assistance under the Colonias 
Wastewater Treatment Assistance Program, funded in part with funds provided by 
the federal government, will have performed the environmental review necessary 
to receive those funds. There is no anticipated economic cost to persons who are 
required to comply with either amendment as proposed. 
 Comments on the proposals may be submitted to Jonathan Steinberg, Attorney, 
Texas Water Development Board, P.O. Box 13231, Austin, Texas, 78711-3231, (512) 
475-2051. 
 The amendments are proposed under Texas Water Code, sec.6.101 and Texas Water 
Code, sec.15.403, which require the Board to adopt rules to carry out the 
purposes of the Texas Water Code and the Texas Water Assistance Program. 
 Texas Water Code Section 15.407 is the only provision affected by the proposed 
amendment of either rule. 
 
 
  sec.355.71. Purposes and Policy. 
 
  (a) Availability. The board will make funds available through the research and 
planning fund or development fund to political subdivisions in affected counties 
for up to 100% of the cost of facility planning for water and wastewater 
facilities to serve economically distressed areas. <nl>The determination of the 
amount of grant made available by the board shall be made under the following 
criteria: 
 
  <nl>(1) If an applicant has unrestricted cash reserves in an amount that is 
more than one and one-half times than the preceding year's average monthly 
operation and maintenance expenses, the board may fund 75% of the cost of the 
facility planning, with the applicant providing at least 50% of the remaining 
cost of the facility planning in the form of cash. 
   
  <nl>(2)  Upon written request of an applicant for a greater grant percentage 
and if the applicant has unrestricted cash reserves of less than one and one-
half times but equal to or greater than one times the preceding year's average 
monthly operation and maintenance expenses, the board may fund 87.5% of the cost 
of the facility planning, with the applicant providing for the remaining portion 
of the facility planning by providing in-kind services or any combination of 
cash and in-kind services. 
   
  <nl>(3) Upon written request of an applicant for a greater grant percentage 
and if the applicant has unrestricted cash reserves of less than one times the 
preceding year's average monthly operation and maintenance expenses, the board 
may fund 87.5% of the cost of the facility planning, with the applicant 
providing for the remaining portion of the facility planning by providing in-
kind services; provided however, upon certification by the applicant that the 
applicant does not have the staff or that the applicant's staff lacks sufficient 
expertise to perform any in-kind contribution, the board may provide 100% of the 
cost of the facility planning. <ol> [The board will routinely fund up to 75% of 
the cost of facility planning, with at least 50% of the applicant's share to be 
provided in the form of cash. However, in hardship cases where the applicant 
does not have sufficient funds on hand to fund its share of a project in an 
economically distressed ares, the board may fund up to 100% of the cost of 
facility planning.] 
     
  (b) (No change.) 
   
  (c) (No change.) 
 
     
  sec.355.73. Scope of Facility Plan. 
 
  (a) A facility plan shall incorporate appropriate data from applicable 
existing planning reports and shall consist of: 
 
  (1)-(2) (No change.) 
   
  (3) environmental data and analysis in accordance with sec.363.14 of this 
title (relating to Environmental Assessment) <nl>,<ol> [or] sec.363.223 of this 
title (relating to Required Environmental Review and Determination)<nl>, or 
sec.375.35 of this title (relating to Required Environmental Review and 
Determination)<ol> as determined by the executive administrator to be applicable 
to potential funding; 
   
  (4)-(18) (No change.) 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on January 5, 1994. 
 TRD-9434446 
  Suzanne Schwartz 
 General Counsel 
 Texas Water Development Board 
    Earliest possible date of adoption: February 17, 1994 
 For further information, please call: (512) 463-7981 
         
                     
  TITLE 40. SOCIAL SERVICES AND ASSISTANCE 
 Part XVI. Council on Sex Offender Treatment 
  Chapter 510. Sex Offender Treatment Provider Registry 
  
  40 TAC sec.sec.510.1-510.9 
 
  The Council on Sex Offender Treatment proposes an amendment to sec.510.1 and 
new sec.sec.510.2-510.9, concerning the Sex Offender Treatment Provider 
Registry. 
 The Council is proposing the amendment new sections to clearly define new 
criteria for inclusion in he Registry; renewal to the Registry; fees; 
availability applications to the Registry; documentation requirements; 
revocation; judicial review of exclusion from Registry; and Registry inclusion 
based on preexisting status. 
 Eliza May, executive director, has determined that for the first five-year 
period the sections are in effect there will be no fiscal implications for state 
or local government as a result of enforcing or administering the sections. 
 The amendment and new sections are promulgated under the authority of the Texas 
Tax Code, Title 2; therefore, no analysis of the effect on small businesses is 
required. 
 Ms. May also has determined that for each year of the first five years the 
sections are in effect the public benefit anticipated as a result of enforcing 
the sections will be improved quality and increased access to treatment, which 
may lead to reduced rates of recidivism among sex offenders. The anticipated 
economic cost to persons who are required to comply with the rule as proposed 
will be the current fee of $100, $50, or $35 annually. 
 Comments on the proposal may be submitted to Eliza May, Executive Director, 
P.O. Box 12546, Austin, Texas 78711. Comments on proposed rules may also be 
expressed at a public hearing scheduled for January 26, 1994, from 9:00 a.m. to 
11:00 a.m. The location of the public hearing will be announced in a future 
issue of the Texas Register 
 The amendments and new rules are proposed under Texas Civil Statutes, Article 
4413(51), sec.13 and sec.15, which provide the Council on Sex offender Treatment 
with the authority to establish and maintain a registry, develop procedures and 
eligibility requirements, and set a reasonable fee for registration. 
 The amendment and new sections implement Texas Civil Statutes, Article 4413(51) 
and Code of Criminal Procedure, Article 42.12. 
 
 
  sec.510.1. Definitions.  The following words and terms, when used in this 
section, shall have the following meanings, unless the context clearly indicates 
otherwise. 
   
   "Council"-The [Interagency] Council on Sex Offender Treatment. Interagency 
Council on Sex Offender Treatment. 
   
  <nl>   "Registry"-A database maintained by the Council, of persons who have 
met the Council's criteria in the treatment of sex offenders, and who provide 
mental health or medical services for the rehabilitation of sex offenders. 
   
   "Rehabilitation service" -A mental health treatment or medical intervention 
program designed to treat or remedy a sex offender's mental or medical problem 
that may relate or contribute to the sex offender's criminal. 
   
   "Sex Offender" -A person who: 
 
  <nl>(A) is convicted of committing or adjudicated to have committed a sex 
crime under the laws of a state or under federal law; 
   
  [(A) admits to committing or has been convicted of an offense under any of the 
following sections of the Texas Penal Code: 
 
  [(i) section 20.04(a)(4) (Aggravated kidnapping); 
   
  [(ii) section 21.07 (Public lewdness); 
   
  [(iii) section 21.08 (Indecent exposure); 
   
  [(iv) section 21.11 (Indecency with a child); 
   
  [(v) section 21.011 (Sexual assault); 
   
  [(vi) section 22.021 (Aggravated sexual assault); 
   
  [(vii) section 25.02 (Incest); 
   
  [(viii) section 25.06 (Solicitation of a child); 
   
  [(ix) section 43.25 (Sexual performance by a child); or 
     
  <nl>(B) is awarded deferred adjudication for a sex crime under the laws of a 
state or under federal law; 
   
  [(B) experiences or evidences a paraphiliac disorder as defined by the Revised 
Diagnostic and Statistical Manual III.] 
   
  (C) admits to having violated the law of a state or federal law with regard to 
sexual conduct; 
   
  (D) experiences or evidences a paraphiliac disorder as defined by the Revised 
Diagnostic and Statistical Manual, including any subsequent revision of that 
manual. 
     
  <nl>   "Sex Offender Treatment Provider"-A person, licensed or certified to 
practice in this state, who provides mental health or medical services for 
rehabilitation of sex offenders, including a physician, psychiatrist, 
psychologist, licensed professional counselor, licensed marriage and family 
therapist, or licensed master social worker. 
   
   ["Treatment provider" -A person, licensed to practice in this state, who 
provides mental health or medical services for rehabilitation of sex offenders, 
including a physician, psychiatrist, psychologist, licensed professional 
counselor, or certified social worker.] 
 
   
  sec.510.2. Registry Criteria. <ol> The Council shall establish a database of 
Sex Offender Treatment Providers whose experience in the rehabilitation of sex 
offenders may vary. The Council shall recognize the experience and training of 
treatment providers in either one of two categories. These may be "Registered 
Sex Offender Treatment Provider" or "Affiliate Sex Offender Treatment Provider." 
 
  (1) Registered Sex Offender Treatment Provider (RSOTP). To be eligible as a 
Registered Sex Offender Treatment Provider, the applicant must meet the 
following criteria: 
 
  (A) be a Sex Offender Treatment Provider, licensed to practice in this state, 
including a physician, psychiatrist, psychologist, licensed professional 
counselor, licensed marriage and family therapist or licensed master social 
worker, and who provides mental health or medical services for the 
rehabilitation of sex offenders; 
   
  (B) have obtained a master's degree, a doctoral degree or a doctor of 
osteopathic medicine or a medical degree; 
   
  (C) hold a license to practice in Texas as a clinical mental health 
professional or as a physician, including a physician, psychiatrist, 
psychologist, licensed professional counselor, licensed marriage and family 
therapist, or licensed master social worker; 
   
  (D) satisfy the experience and training criteria required below: 
 
  (i) possess a minimum of 1,000 hours of clinical experience in the area of 
assessment and treatment of sex offenders, obtained within a consecutive seven-
year period, and provide two reference letters from professionals who can atest 
to the applicant's clinical work in sex offender treatment; and 
   
  (ii) possess a minimum of 0 hours of documented continuing education training 
in the specific area of sex offender treatment and evaluation. Of the initial 40 
hours training required, 30 hours or 75% must be in sex offender rehabilitation 
training. Ten hours or 25% may be in victim training; 
     
  (E) submit a complete and accurate description of their treatment program on a 
form prescribed by the Council; 
   
  (F) comply with the following. Persons making initial application or renewing 
their eligibility for the Registry: 
 
  (i) must not have been convicted of a felony, or of any misdemeanor involving 
a sex offe4nse, inclusive of deferred adjudication for a sex offense; 
   
  (ii) must not have had licensure revoked, canceled, suspended, or placed on 
probationary status by any professional licensing body; 
   
  (iii) must not have been determined by any professional licensing or 
certifying body to have engaged in unprofessional or unethical conduct; 
   
  (iv) must not have been determined by the Council to have engaged in deceit or 
fraud in connection with the delivery of services or documentation of Registry 
requirements or Registry eligibility; and 
   
  (v) must submit themselves to a criminal history background check. An 
applicant may be required to submit a complete set of fingerprints with the 
application documents, or other information necessary to conduct a criminal 
history background check to be submitted to the Texas Department of Public 
Safety or to another law enforcement agency. If fingerprints are requested, the 
fingerprints must be taken by a peace officer or a person authorized by the 
Council and must be placed on a form prescribed by the Texas Department of 
Public Safety; and 
   
  (vi) must not have violated any rule adopted by the Council; 
     
  (G) submit an application fee defined in sec.510.4 of this title (relating to 
Fees); 
   
  (H) submit a letter from their professional licensing board stating that they 
are currently licensed to practice as a clinical mental health professional 
and/or physician, and in good standing; and 
   
  (I) attest to the accuracy of their application statement before a Notary 
Public. 
     
  (2) Affiliate Sex Offender Treatment Provider (ASOTP). To be eligible as an 
Affiliate Sex Offender Treatment Provider, the applicant must meet the following 
criteria: 
 
  (A) be a Sex Offender Treatment Provider, licensed to practice in this state, 
including a physician, psychiatrist, psychologist, licensed professional 
counselor, licensed marriage and family therapist or licensed master social 
worker, who provides mental health or medical services for the rehabilitation of 
sex offenders; 
   
  (B) have obtained a master's degree, a doctoral degree or a doctor of 
osteopathic medicine or a medical degree; 
   
  (C) hold a license to practice in Texas as a clinical mental health 
professional and/or as a physician; 
   
  (D) satisfy the experience and training required below: 
 
  (i) possess a minimum of 250 hours of clinical experience in the areas of 
assessment and treatment of sex offenders, provide three reference letters from 
professionals who know of the applicants clinical work in sex offender 
treatment; 
   
  (ii) be supervised by a Registered Sex Offender Treatment Provider; 
   
  (iii) possess a minimum of 40 hours of documented continuing education 
training in the specific area of sex offender treatment and evaluation. Of the 
initial 40 hours training required 30 hours or 75% must be in sex offender 
rehabilitation training. Ten hours or 25% may be in victim training; 
     
  (E) submit a complete and accurate description of their treatment program on a 
form prescribed by the Council; 
   
  (F) comply with the following. Persons making initial application or renewing 
their eligibility for the Registry: 
 
  (i) must not have been convicted of a felony, or of any misdemeanor involving 
a sex offense, inclusive of deferred adjudication for a sex offense; 
   
  (ii) must not have had licensure revoked, canceled, suspended, or placed on 
probationary status by any professional licensing body; 
   
  (iii) must not have been determined by any professional licensing body to have 
engaged in unprofessional or unethical conduct; 
   
  (iv) must not have been determined by the Council to have engaged in deceit or 
fraud in connection with the delivery of services or documentation of Registry 
requirements or Registry eligibility; and 
   
  (v) must submit themselves to a criminal history background check. An 
applicant may be required to submit a complete set of fingerprints with the 
application documents, or other information necessary to conduct a criminal 
history background check to be submitted to the Texas Department of Public 
Safety or to another law enforcement agency. If fingerprints are requested, the 
fingerprints must be taken by a peace officers or a person authorized by the 
Council and must be placed on a form prescribed by the Texas Department of 
Public Safety; 
   
  (vi) must not have violated any rule adopted by the Council. 
     
  (G) submit an application fee defined in sec.510.4; 
   
  (H) submit a letter from their professional licensing Board stating that they 
are currently licensed to practice as a clinical mental health professional and 
in good standing; and 
   
  (I) attest to the accuracy of their application statements before a Notary 
Public. 
     
  (3) Supervision. The Affiliate Sex Offender Treatment Provider will be 
required to be supervised. Supervision will include: 
 
  (A) The Affiliate Sex Offender Treatment Provider providing any offender 
treatment is required to be under supervision of a Registered Sex Offender 
Treatment Provider. 
   
  (B) The Affiliate Sex Offender Treatment Provider must receive supervision at 
least one hour per month, or if providing more than 20 hours of direct clinical 
sex offender treatment work per month, the Affiliate Sex Offender Treatment 
Provider must receive one hour of supervision per every 20 hours of sex offender 
treatment provided. 
   
  (C) Supervision may consist of face-to-face contact with the Registered Sex 
Offender Treatment Provider; facilitation of group or individual therapy; and 
may include the use of audio video tape. 
   
  (D) The Registered Sex Offender Treatment Provider will be required to submit 
to the Council on an annual basis the names of the persons they have supervised. 
 
       
  sec.510.3. Registry Renewal. <ol> In order to maintain eligibility for the 
Registry, as renewing applicant who is: 
 
  (1) A Registered Sex Offender Treatment Provider must submit every two years a 
minimum of 24 hours of continuing education documentation in sex offender 
treatment, beginning September, 1993. Of these hours, six must be victim related 
training. 
   
  (2) An Affiliate Sex Offender Treatment Provider must submit every two years a 
minimum of 24 hours of continuing education documentation in sex offender 
treatment. Of these hours, six must be victim related training. 
   
  (3) All renewing applicants must submit renewal fees defined in sec.510. 4 of 
this title (relating to Fees). 
 
     
  sec.510.4. Fees. All applicants must submit a non-refundable application fee 
according to the following: 
 
  (1) A Registered Sex Offender Treatment Provider applicant must submit a non-
refundable application fee of $100. To renew, a Registered Sex Offender 
Treatment Provider must submit an annual renewal fee of $50. 
   
  (2) An Affiliate Sex Offender Treatment Provider applicant must submit an non-
refundable application fee of $100. To renew, an Affiliate Sex Offender 
Treatment Provider must submit an annual renewal fee of $35. 
 
     
  sec.510.5. Application Availability. <ol> Applications for the Sex Offender 
Treatment Provider Registry shall be made available upon receipt of a written or 
verbal request to the Council on Sex Offender Treatment. 
 
   
  sec.510.6. Documentation of Experience and Training.  In determining the 
acceptability of the treatment provider's experience and/or training, the 
Council will require documentation of experience and/or training regarding the 
quality, scope and nature of the applicant's work in sex offender treatment and 
rehabilitation. This will include reference letters from professionals who can 
attest to the applicant's work in sex offender treatment. 
 
   
  sec.510.7. Revoke, Refuse or Refuse to Renew.  The Council shall have the 
right to revoke a Registry listing, refuse to accept a Registry listing, and/or 
refuse to renew a Registry listing upon proof that the treatment provider has 
violated any of the following: 
 
  (1) been convicted of any felony or a misdemeanor involving a sexual offense, 
inclusive of deferred adjudication for a sexual offense; 
   
  (2) had licensure revoked, canceled, suspended or placed on probationary 
status by any professional licensing body; 
   
  (3) been determined by any professional licensing body to have engaged in 
unprofessional or unethical conduct; 
   
  (4) been determined by the Council to have engaged in deceit or fraud in 
connection with the delivery of services or documentation of Registry 
requirements or Registry eligibility; or 
   
  (5) violated any rule adopted by Council. 
 
     
  sec.510.8. Judicial Review of Exclusion From Registry. <ol> A person excluded 
from the Registry may appeal the Council' decision to exclude the person from 
the Registry by filing a petition for judicial review in the manner provided the 
Administrative Procedure Act the Government Code, Chapter 2002. 
 
   
  sec.510.9. Registry Inclusion Based on Pre-existing Status. <ol> The Council 
on Sex Offender Treatment shall review the status of a provider who is 
transferred to the Registry under the criteria established heretofore, and may 
change the provider's status after evaluating the provider's compliance with 
Council standards for inclusion in the Registry. The Council on Sex Offender 
Treatment shall give a provider proper notice and a reasonable opportunity to 
meet Registry standards before changing the provider's status under this 
section. Individuals will be grandfathered into the appropriate categories of 
Registered Sex Offender Treatment Provider or Affiliate Sex Offender Treatment 
Provider, provided they have met the following criteria: 
 
  (1) were listed in the 1993 Registry; and 
   
  (2) met the Registry requirements except the minimum master's degree provided 
they have been licensed by one of the following boards: physician, psychiatrist, 
psychologist, licensed professional counselor, licensed marriage and family 
therapist, or licensed master social worker. 
   
  (3) Individuals who have had less than 250 hours of clinical experience and 
who have met all of the above criteria will be reclassified as an Affiliate Sex 
Offender Treatment Provider. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on January 5, 1994. 
 TRD-9434227 
  Eliza May 
 Executive Director 
 Council on Sex Offender Treatment 
    Earliest possible date of adoption: February 14, 1994 
 For further information, please call: (512) 463-2323 
         
           
  40 TAC sec.sec.510.2, 510.3, 510.6-510.9 
 
  (Editor's note: The text of the following sections proposed for repeal will 
not be published. The sections may be examined in the offices of the Council on 
Sex Offender Treatment or in the Texas Register office, Room 245, James Earl 
Rudder Building, 1019 Brazos Street, Austin.) 
   
  The Council on Sex Offender Treatment proposes the repeal of sec.510.2, 
concerning Registry Criteria; sec.510.3, concerning Registry Renewal; sec.510.6, 
concerning Application Availability; sec.510.7, concerning Documentation; 
sec.510.8, concerning Revocation; and sec.510.9, concerning the Appeals Process. 
 The Council is repealing these rules to replace them with new sections which 
will clearly define new criteria for inclusion in the Registry; renewal to the 
Registry; fees; availability of applications to the Registry; documentation 
requirements; revocation; judicial review of exclusion from Registry; and 
Registry inclusion based on preexisting status. 
 Eliza May, executive director, has determined that for the first five-year 
period the repeals are in effect there will be no fiscal implications for state 
or local government as a result of enforcing or administering the repeals. 
 The repeals are promulgated under the authority of the Texas Tax Code, Title 2; 
therefore, no analysis of the effect on small businesses is required. 
 Ms. May also has determined that for each year of the first five years the 
repeals are in effect the public benefit anticipated as a result of enforcing 
the repeals will be improved quality and increased access to treatment, which 
may lead to reduced rates of recidivism among sex offenders. The anticipated 
economic costs to persons who are required to comply with the rule as proposed 
will be the current fee of $100, $50, or $35 annually. 
 Comments on the proposal may be submitted to Eliza May, Executive Director, 
P.O. Box 12546, Austin, Texas 78711. Comments on proposed rules may also be 
expressed at a public hearing scheduled for January 26, 1994, from 9:00 to 11: 
00 a.m. 
 The repeals are proposed under Texas Civil Statutes, Article 4413(51), sec.13 
and sec.15, which provide the Council on Sex Offender Treatment with the 
authority to establish and maintain a registry, develop procedures and 
eligibility requirements, and set a reasonable fee for registration. 
 The repeals implement Texas Civil Statutes, Article 4413(51) and Code of 
Criminal Procedure, Article 42.12 . 
 
 
  sec.510.2. Registry Criteria. 
 
   
  sec.510.3. Registry Renewal. 
 
   
  sec.510.6. Application Availability. 
 
   
  sec.510.7. Documentation. 
 
   
  sec.510.8. Revocation. 
 
   
  sec.510.9. Appeals Process. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on January 5, 1994. 
 TRD-9434228 
  Eliza May 
 Executive Director 
 Council on Sex Offender Treatment 
    Earliest possible date of adoption: February 14, 1994 
 For further information, please call: (512) 463-2323 
         
               
  TITLE 43. TRANSPORTATION 
 Part I. Texas Department of Transportation 
  Chapter 25. Traffic Operations 
  
  General 
 
  43 TAC sec.25.1 
 
  The Texas Department of Transportation proposes an amendment to sec.25.1, 
concerning the Texas Manual on Uniform Traffic Control Devices (Texas MUTCD). 
The Texas MUTCD is amended periodically to maintain substantial conformance with 
the National MUTCD to allow use of a single manual for both State Funded and 
Federal-aid highway projects. This amendment incorporates the latest Federal 
requirements of the National MUTCD into the Texas MUTCD. 
 Gary K. Trietsch, P.E., director, Traffic Operations Division, has determined 
that for the first five-year period the section is in effect there will be no 
fiscal implications for state or local government as a result of enforcing or 
administering the section. 
 Mr. Trietsch has certified that there will be no significant impact on local 
economies or overall employment as a result of enforcing or administering the 
proposed section. 
 Mr. Trietsch also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be a more uniform use of traffic control devices and increased 
highway safety. There will be no effect on small businesses. There is no 
anticipated economic cost to persons who are required to comply with the 
sections as proposed. 
 Pursuant to the Administrative Procedure Act, the Government Code, Chapter 
2001, the Texas Department of Transportation will conduct a public hearing to 
receive comments concerning the proposed amendments. The public hearing will be 
held at 9 a.m. on January 25, 1994, in the first-floor hearing room of the 
Dewitt C. Greer State Highway Building, 125 East 11th Street, Austin, Texas, and 
will be conducted in accordance with the procedures specified in 43 TAC sec.1.5. 
Those desiring to make comments or presentations may register starting at 8:30 
a.m. Any interested person may appear and offer comments, either orally or in 
writing; however, questioning of those making presentations will be reserved 
exclusively to the presiding officer as may be necessary to ensure a complete 
record. While any person with pertinent comments will be granted an opportunity 
to present them during the course of the hearing, the presiding officer reserves 
the right to restrict testimony in terms of time and repetitive content. 
Organizations, associations, or groups are encouraged to present their commonly 
held views, and same or similar comments, through a representative member where 
possible. Comments on the proposed text should include appropriate citations to 
sections, subsections, paragraphs, etc., for proper reference. Any suggestions 
or requests for alternative language or other revisions in the proposed text 
should be submitted in written form. Presentations must remain pertinent to the 
issue being discussed. A person may not assign a portion of his or her time to 
another speaker. A person who disrupts a public hearing must leave the hearing 
room if ordered to do so by the presiding officer. Persons with disabilities who 
have special communication or accommodation needs and who plan to attend the 
hearings may contact Al Zucha, public information officer, at 125 East 11th 
Street, Austin, Texas 78701-2383, 512) 463-8588. 
 Written comments on the proposed amendments may be submitted to Gary K. 
Trietsch, Director, Traffic Operations Division, Texas Department of 
Transportation, 125 East 11th Street, Austin, Texas 78701-2483. The deadline for 
receipt of written comments will be 5 p.m. on February 15, 1994. 
 The amendment is proposed under Texas Civil Statutes, Articles 6666 and 6701d, 
which provide the Texas Transportation Commission with the authority to 
promulgate rules for the conduct of the work of the Texas Department of 
Transportation; and specifically for the authority to adopt a manual and 
specifications for a uniform system of traffic control devices for use upon 
highways within this State. 
 
 
  sec.25.1. Uniform Traffic Control Devices. 
 
  (a) The Texas Manual on Uniform Traffic Control Devices for Streets and 
Highways, 1980 edition, as amended by Revision <nl>Number 5<ol> [Number 4], 
which is filed with this section and hereby incorporated by reference, was 
prepared as required by law to govern standards and specifications for all such 
traffic control devices to be erected and maintained upon all highways within 
this state, including those under local jurisdiction. Copies of the manual may 
be obtained at the <nl>Texas <ol> [State] Department of [Highways and Public] 
Transportation, <nl>125 East 11th Street <ol> [11th and Brazos], Austin, 
<nl>Texas, 78701, and are on file for public inspection with the Office of the 
Secretary of State, Texas Register Division, James Earl Rudder State Office 
Building, Room 245, Austin, Texas 78711. 
   
  (b) This manual will be periodically updated. In the intervals between 
updates, standards contained in "Official Rulings on Requests for 
Interpretations, Changes, and Experimentation" to the U.S. Department of 
Transportation's Manual on Uniform Traffic Control Devices for Streets and 
Highways will be inserted in this manual and may be used as interim standards. 
   
  (c) This manual is not intended to preclude the use of sound engineering 
judgment and experience in the application and installation of devices and 
particularly in those cases not specifically covered which must not conflict 
with the manual or other applicable state laws. 
   
  (d) This manual will be sold for a price based upon the then current cost to 
the department, except that certain public entities may be entitled to free 
copies. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on January 7, 1993. 
 TRD-9434366 
  Diane L. Northam 
 Legal Administrative Assistant 
 Texas Department of Transportation 
    Earliest possible date of adoption: February 14, 1994 
 For further information, please call: (512) 463-8630