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 7. BANKING AND SECURITIES Part I. State Finance Commission Chapter 1. Consumer Credit Commissioner Subchapter B. Miscellaneous 7 TAC sec.1.305 The State Finance Commission proposes new sec.1.305, concerning procedures for requesting clarification of aspects of Title 79 from the Consumer Credit Commissioner. Al Endsley, consumer credit commissioner, 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. Endsley also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be that the public will be advised through definitions contained in the rule of the distinctions between interpretations and advisory letters and the proper procedure for requesting and receiving clarification of Title 79 from the Consumer Credit Commissioner. 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 Al Endsley, Consumer Credit Commissioner, 2601 North Lamar Boulevard, Austin, Texas 78705. The new rule is proposed under Texas Civil Statutes, Article 342-114A, which provides the State Finance Commission with the authority to prescribe such rules or procedure as may be necessary for supervising the Consumer Credit Commissioner and for ensuring compliance with Texas Civil Statutes, Title 79, Article 5069-1.01. sec.1.305. Interpretations and Advisory Letters. (a) Definitions. The following words and terms, which used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Advisory letter-A letter by the commissioner or a member of the staff of the Office of Consumer Credit Commissioner providing an informal advisory response to an inquiry concerning provisions of Title 79 and that is not an interpretation as defined in paragraph (3) of this subsection. (2) Commissioner-The commissioner of the Office of the Consumer Credit Commissioner. (3) Interpretation-A letter issued by the consumer credit commissioner and approved by the State Finance Commission pursuant to Texas Civil Statutes, Article 5069-sec.2.02A(10), interpreting a provision of Title 79 in light of certain relevant facts. (b) Procedures for Finance Commission Interpretations. Any person may submit a request for an interpretation. All requests should be directed to the commissioner subject to the following guidelines: (1) Explicitly state that an interpretation approved by the Finance Commission is desired. (2) Provide a concise description of the contemplated transaction or activity contemplated, the legal issue raised, and all facts necessary to reach a conclusion in the matter. (3) State whether or not, to the best of the requester's knowledge, the issue to be considered is an issue in pending litigation. Matters in litigation will not ordinarily be answered. (4) Identify each provision of law involved, and indicate the writer's opinion of how the legal issues should be resolved, and the basis for that opinion, including an analysis of any relevant court decisions as well as all prior interpretations to which the request relates. (5) A fee not to exceed $300 will be charged for an interpretation to compensate the agency for the expense involved in researching and answering the request. A payment $300 should be submitted with the request. The commission shall determine and remit a partial refund if deemed applicable. The commission may waive the fee. (6) Within ten days of receipt of a properly detailed request and the required fee, the request will be filed with the Texas Register
    for publication. Upon publication in the Texas Register
      , interested parties have 30 days to submit briefs and proposals pertaining to the issue under consideration. The commissioner will draft an interpretation or other response to the request and present it to the Finance Commission for their consideration. A response may be that the commissioner and the Finance Commission decline to answer the inquiry. Within ten days of the Finance Commission's approval of an interpretation or other response, a summary of the interpretation or other response will be filed with the Texas Register
        for publication. (7) Copies of interpretations or other responses shall contain a notation of approval by the Finance Commission to include the date of Finance Commission action. (c) Office of Consumer Credit Commissioner Advisory Letters. Each advisory letter shall contain a notation that it is not an interpretation approved by the Finance Commission pursuant to Texas Civil Statutes, Article 5069-2.02A(10) and does not grant a "safe harbor" as provided in Texas Civil Statutes, Article 5069-8.01(f). 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 24, 1994. TRD-9435085 Al Endsley Consumer Credit Commissioner Earliest possible date of adoption: February 28, 1994 For further information, please call: (512) 479-1280 TITLE 22. EXAMINING BOARDS Part XVII. Texas State Board of Podiatry Examiners Chapter 376. Violations and Penalties 22 TAC sec.sec.376.1-376.7 (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 State Board of Podiatry Examiners or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas State Board of Podiatry Examiners proposes the repeal of sec.sec.376.1-376.7, concerning Violations and Penalties. These rules are very vague and are being updated by the Board. Robert A. Lansford, executive director, has determined that for the first five- year period the repeals are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the repeals. Mr. Lansford 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 better clarity in the rules. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the repeals as proposed. Comments on the proposal may be submitted to Janie Alonzo, 3420 Executive Center Drive, Suite 305, Austin, Texas 78731, (512) 794-0145. The repeals are proposed under Texas Civil Statutes, Articles 4568(j) and 4590(e), which provide State Board of Podiatry Examiners with the authority to adopt all reasonable or necessary rules, regulations, and by-laws not consistant with the law regulating the practice of podiatry, the laws of this state, or of the United States; to govern its proceedings and activities, the regulation of the practice of podiatry, and the enforcement of the law regulating the practice of podiatry. No other article of the statute is affected by these proposed repeals. sec.376.1. Penalties. sec.376.2. Probation of Penalty. sec.376.3. Institution of Action by the Board. sec.376.4. Board Discretion Regarding Penalties. sec.376.5. Agreed Orders. sec.376.6. Conditions of Suspension of License. sec.376.7. Educational Courses. 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 21, 1994. TRD-9435036 Janie Alonzo Certifying Official, Staff Services Officer I Texas State Board of Podiatry Examiners Earliest possible date of adoption: February 28, 1994 For further information, please call: (512) 794-0145 22 TAC sec.sec.376.1-376.11 The Texas State Board of Podiatry Examiners proposes new sections sec.sec.376. 1-376.11, concerning Violations and Penalties. These new rules regarding fine and penalties, administrative fines, complaint form, investigations of complaints filed with the Board and monitoring licensee compliance are needed to comply with Senate Bill 1080. Robert A. Lansford, executive director has determined that for the first five- year period the sections are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the sections. Mr. Lansford also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be better clarity in the rules. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the sections as proposed. Comments on the proposal may be submitted to Janie Alonzo, 3420 Executive Center Drive, Suite 305, Austin, Texas 78731, (512) 794-0145. The new sections are proposed under Texas Civil Statutes, Articles 4568(j) and 4590(e), which provide State Board of Podiatry Examiners with the authority to adopt all reasonable or necessary rules, regulations, and by-laws not consistant with the law regulating the practice of podiatry, the laws of this state, or of the United States; to govern its proceedings and activities, the regulation of the practice of podiatry, and the enforcement of the law regulating the practice of podiatry. No other article of the statute is affected by these proposed new sections. sec.376.1. Penalties. Any podiatrist who violates any provision of these Rules, or any provision of the Podiatry Practice Act of Texas shall be, at the discretion of the Board, subject to the following penalties: (1) suspension, revocation, or cancellation of his or her license to practice podiatry in the State of Texas; or (2) a fine not to exceed $10,000; or (3) a reprimand by the Board which may be either public or private; or (4) valid enrollment in and certified full and complete attendance at any medical educational course or courses, including any residency, or any course in ethics in practice, as deemed appropriate by the Board; or (5) valid enrollment in and certified full and complete attendance at any rehabilitation program deemed appropriate by the Board; or (6) administrative penalties; or (7) any Combination of the penalties listed in this section. sec.376.2. Administrative Fines and Penalties. (a) The Board may impose an administrative penalty against any licensee who violates any provision of the Act or rule or order of the Board. The executive director may assess a penalty for each violation and present a report to the Board concerning the facts on which the determination was based and the amount of the penalty. The range of penalty is $500 to $2,500. (b) The amount of the penalty shall be based on: (1) the seriousness of the violation, including the nature, circumstances, extent, and gravity of any prohibited acts, and the hazard or potential hazard created to the health, safety, or economic welfare of the public; (2) the economic harm to property or the environment caused by the violation; (3) the history of previous violations; (4) the amount necessary to deter future violations; (5) efforts to correct the violation; and (6) any other matter that justice may require. (c) Penalties imposed by the Board pursuant to subsections (a) and (b) of this section may be imposed for each violation subject to the following limitations. (1) Imposition of an administrative penalty may not exceed $2,500 for each violation; (2) Each day a violation continues or occurs is a separate violation for purposes of imposing a penalty. (d) The provisions of subsections (a)-(c) of this section shall not be construed so as to prohibit other appropriate civil or criminal action and remedy and enforcement under other laws. (e) If the licensee does not agree with the imposition of the administrative penalty, the licensee may request a hearing before the State Office of Administrative Hearings as stated in sec.376.9 of this title (relating to Complaint Form). (f) If the final order of the Board imposes an administrative penalty against a licensee, the licensee may pay the amount of the penalty, pay the amount of the penalty and file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both, or the licensee may, without paying the penalty, file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both pursuant to Article 4567e. (g) Judicial review of the order of the Board: (1) is instituted by filing a petition as provided in the Administrative Procedure Act, sec.2001.171 in the Texas Government Code and subsequent amendments; and (2) is under the substantial evidence rule. (h) All such penalties shall be made a permanent part of the licensee's record at the Texas State Board of Podiatry Examiner's office that are to be maintained according to the laws of the State of Texas and these rules and regulations. sec.376.3. Probation of Penalty. A board order to revoke, cancel, or suspend a license may be probated in whole or in part at the discretion of the Board. The Board may revoke, in part or in whole, the probation of any suspension upon a showing of any violation of Statutes or Administrative Rules governing the practice of Podiatry, or any state or federal laws, upon hearing before the Board without the necessity of pre-hearing discovery, or informal conference provided the licensee is given reasonable notice and time to respond before the Board at said hearing. sec.376.4. Institution of Action by the Board. The Board may institute actions in its own name to enjoin a violation of any provision of the Podiatry Practice Act of Texas, Texas Civil Statutes, Article 4567B et seq, of the Rules of the Texas State Board of Podiatry Examiners, or any other laws applicable to licensed podiatrists in the State of Texas. sec.376.5. Board Discretion Regarding Penalties. The Board shall have complete discretion to impose penalties as are reasonable and fair and in accordance with due process in light of all the evidence adduced in each case, the difficulty or proof of elements of the case, the credibility of evidence or witnesses for the State or the licensee, the harm caused by the violation, and other similar considerations, including a comparison with the penalties previously assessed in similar cases and circumstances. sec.376.6. Agreed Orders.
          The Board may enter into negotiated Agreed Orders with negotiated penalties when, in the Board's discretion, full hearing of the case is impractical, unnecessary, or not in the best interest of the State due to such factors as difficulties in pursuing discovery, risk of obtaining adequate evidence or proof, or the length of time accrued since the alleged violation and the possibility of stale evidence, and other similar considerations. sec.376.7. Conditions of Suspension of License. (a) Suspension of a license means that the office of the licensee is to be closed for the purposes of receiving, diagnosing, treating, or consulting with patients, and the licensee may not participate for income in any professional activity that is directly related to diagnosis or treatment of a patient. The licensee may refer his patients to another practitioner for treatment or consultation during the pendency of the suspension, but the licensee shall not derive any income from such referrals. The licensee may allow into his office another practitioner to see his patients during the pendency of the suspension, but the licensee shall drive no income from the other practitioner by way of referral fees, rent for the office space, or the like. (b) The licensee's office may remain open for the purposes of administrative work, including making future appointments, arranging referrals, handling mail, processing accounts, billing, and insurance matters, and other similar matters not directly related to the diagnosis and treatment of patients. (c) If the suspended licensee shares offices with another practitioner, the other practitioner shall be allowed to continue his practice normally, but the suspended licensee shall not share income with the other practitioner, including any income derived in any way from the diagnosis or treatment of patients that would see or normally see the licensee who is under suspension. (d) If a license suspension is probated, the Board may require the licensee to: (1) report regularly to the Board on matters that are the basis of the probation; (2) limit practice to the areas prescribed by the Board; or (3) continue or review continuing professional education until the licensee attains a degree of skill satisfactory to the Board in those areas that are the basis of the probation. sec.376.8. Educational Courses.
            The Board deems as approved any Continuing Medical Education Course approved by the American Podiatric Medical Association. The Board may also approve, by majority vote, substitution of a non-APMA-approved course when such is indicated by the record before the board. sec.376.9. Complaint Form.
              The Board shall adopt the following form as its official complaint form. The form, along with a "Consumer Information" pamphlet explaining the Board's functions and complaint process, will be furnished to any person who wishes to file a complaint with the Board. The official complaint form is suggested for uniformity, however, any written communication that clearly advises the other party or parties of the information required shall be deemed sufficient. [graphic] sec.376.10. Investigations of Complaints Filed with the Board. (a) Receipt of Complaint (1) All written and signed complaints filed with the Board will be investigated. Anonymous written complaints will not be investigated, but will be logged and filed for information purposes only. Complainants who wish to complain by telephone will be advised that their complaints must be submitted in writing, must be signed by complainant, and that Board complaint forms will be mailed to them for their use and submission to the Board. A log will be maintained with names and addresses of complainants who telephone the Board offices and to whom complaint forms are mailed. The Board shall also maintain an information file for each complaint that contains a record of all persons contacted in relation to the complaints, summary of findings at each stage of complaint process, an explanation of legal basis and reason that a complaint was dismissed, and other relevant information. (2) When a written complaint is received at the Board Offices, the complaint will be date-stamped immediately. The complaint will then be reviewed by the executive director. A complaint file will be created and the complaint will be assigned to an Investigative Liaison, who is a Board member and a licensed podiatrist. (3) If an allegation is determined to be critical in nature, it will be assigned a high priority and the requirement for written and signed complaints will be waived temporarily, but will be obtained later in the investigative process. (b) Investigation of Allegations. (1) Upon receipt of the written allegation and/or determination of a high priority issue, the executive director will assure that the complaint information is entered into the computer and given a file number. A letter of acknowledgment will be promptly mailed to the complainant. Case files will be reviewed every 30 days to insure cases comply with scheduling. Parties to a complaint will be contacted on at least a quarterly period. (2) Depending on the type of allegations and/or violations at issue, the investigation of the complaint will usually be conducted in accordance with the following guidelines. (A) After a signed and written complaint is received, the executive director may interview the complainant either in person or over the telephone so that the complainant has an opportunity to explain or elaborate upon the allegations made in the complaint. If the allegation is a misunderstanding and/or without merit, the executive director informs the complainant and submits a report to the Investigative Liaison recommending that the case be closed. (B) After the complainant's statement has been obtained, and the executive director determines that a potential violation exists, the licensee is informed of the nature of the allegations in the complaint. All the records and files of the Texas State Board of Podiatry Examiners shall be public records and open to inspection at reasonable times, except the investigations files and records which are confidential and shall be divulged only to persons so investigated upon the completion of the investigation. Patient records may be requested to assist in the investigation. The licensee is given an opportunity to respond to the allegations either in an interview with the executive director or by giving a narrative statement via mail or FAX. (C) At this time, further investigation may be necessary in the form of second or third opinions, obtaining supporting documents, interviewing other witnesses, etc., depending on the case at hand. (D) If the case does not require the medical judgment of the Investigative Liaison, and the executive director concludes, after all elements have been investigated, that a violation probably exists, he or she will compose and mail to the licensee a conference letter inviting the licensee to a conference to discuss the allegations made against the licensee. If the executive director concludes that the complaint has no merit, the executive director will apprise the Investigative Liaison assigned to the case and authorize closing the case. The executive director will assure that the complainant and licensee are notified by letter explaining the action taken on the dismissed complaint. (E) If the case does require the medical judgment of the Investigative Liaison, and the executive director concludes, after all relevant elements have been investigated, copies of pertinent documents, along with a cover letter to the Investigative Liaison, who will assist in determining whether the case should be closed, further investigation is warranted, or the licensee should be invited to respond to the allegations at a conference. If the case is closed, the complainant and the licensee will be notified by letter explaining the action taken on the dismissed complaint. (F) If a conference is recommended, the executive director shall, by certified mail, mail to the licensee a conference letter with a list of allegations. The conference is conducted in accordance with the Administrative Procedure Act, the Texas Government Code, sec.2001.054, former APTRA, Texas Civil Statutes, Article 6252-13a, sec.18 and is part of the investigatory process. The licensee is advised that he or she has the right to counsel. The allegations are presented to the licensee and the licensee is given every opportunity to present his or her side of the issue. The licensee shall also have the right to waive the conference, in which case the investigation shall proceed to the next step in the disciplinary process. In attendance at the conference are the executive director, the Investigative Liaison assigned to the case, and the Assistant Attorney General representing the Board, and the complainant if the complainant desires to attend. (G) After the licensee responds to the allegations, the executive director, Investigative Liaison, and the Assistant Attorney General will review the file and licensee's response and recommend the disposition of the complaint. If it is determined that a violation has not occurred, the case will be dismissed and all parties to the allegations will be notified by letter explaining the action taken on the dismissed complaint. The executive director will advise the Board at each scheduled board meeting of the complaints dismissed since the last board meeting. The information furnished will consist of a summary of the allegations, investigation conducted, reasons for dismissal, and file number. (H) If it is determined that a violation has occurred and a penalty/disciplinary action is warranted, within 14 days of the date of determination a Notice of Violation shall be mailed by certified mail to the licensee. The notice must include a brief summary of the alleged violation and a statement that the licensee has a right to a hearing on the occurrence of the violation, the amount of the penalty/disciplinary action, or both the occurrence of the violation and the amount of the penalty. (I) Within 20 days after the date the licensee received the notice, the licensee may, in writing, accept the determination and recommended penalty/disciplinary action of the executive director or may make a written request for a hearing on the occurrence of the violation, the amount of the penalty/disciplinary action or both the occurrence of the violation and the amount of the penalty. (J) If the licensee accepts the determination and recommended penalty/disciplinary action of the executive director, the bard by order shall approve the determination and impose the recommended penalty/disciplinary action. (c) Docketed Complaint and Hearing. (1) If the licensee declines the determination and recommended penalty/disciplinary action and requests a hearing or if the licensee fails to respond timely to the notice, a docketed complaint will be drawn and assigned a docket number. The complaint is reviewed by he Assistant Attorney General who then returns it to the agency where corrections are made, if indicated. The date the executive director signs the complaint is the official date of filing the docketed complaint with the Board. The docketed complaint is then served on the respondent by certified mail or personal service at least ten days prior to a scheduled hearing. (2) The executive director shall request a hearing and give notice of the hearing to the licensee. The hearing shall be held by an administrative law judge of the State Office of Administrative Hearings. The administrative law judge shall make findings of fact and conclusions of law and promptly issue to the board a proposal for a decision about the occurrence of the violation and the amount of the proposed penalty. Based on findings of fact, conclusions of law, and proposal for a decision, the board by order may find that a violation has occurred, impose a penalty, impose disciplinary action, or may find that no violation occurred. The complainant shall be promptly advised by letter of the final disposition of the complaint. (3) The notice of the board's order given to the licensee under the Administrative Procedure Act, Chapter 20001 et seq of the Texas Government Code and its subsequent amendments must include a statement of the right of the licensee to judicial review of the order. (d) Licensee's Record. All actions taken by the Board against a licensee shall be made a permanent part of the licensee's record at the Texas State Board of Podiatry Examiner's offices which is to be maintained according to the laws of the State of Texas and these rules and regulations (e) Use of Private Investigators. Private investigators may be utilized in any case filed with the Board. Private investigators will be employed only when it is economically advantageous to the Board or when it is not practical for agency staff to travel to a distant destination or to another state. Private investigators will be utilized in accordance with existing State purchasing rules of the General Services Commission and will be utilized with the approval of the executive director and Investigative Liaison. sec.376.11. Monitoring Licensee Compliance. (a) The Board shall conduct a compliance monitoring program in which podiatric practices are inspected on an unannounced basis to insure that licensees are complying with the requirements of the applicable statutes and rules. Those items to be inspected include, but are not limited to, display of licenses; compliance with required consumer information; continuing education requirements; sanitation; patient record completion; drug security; drug accountability; and compliance with other state and federal laws. (b) Inspection reports will be completed by the executive director and/or office staff in duplicate. One copy will be processed and filed in the licensee's personal file when all deficiencies have been corrected by the licensee. The second copy will be left with the licensee. (c) Licensees will normally be given 45 days to correct deficiencies. Licensees who are delinquent will be contacted by certified mail, requesting them to answer within 15 days of receipt of letter. If no response is received within that time period, the status of "inspection" will be changed to "investigation" and the formal investigative procedure will be followed. (d) After an initial inspection, the executive director may close a compliance inspection discrepancy to "voluntary compliance" within the spirit and intent of the program, with the following exception: when a violation is identified involving flagrant disregard of the law, including allowing illegal practice; use of prescription drugs; failure to account for drugs dispensed or administered; drug diversion and/or abuse; and fraud, the compliance inspection shall be terminated and an investigation will be opened. In this situation, "voluntary compliance" is not an option available for the licensee and all matters must be referred to the executive director for review as a complaint. (e) When a licensee is inspected some time after an initial inspection and the licensee is found to have failed to correct those deficiencies noted in the prior inspection, the executive director will advise the licensee that the licensee has continued to violate the statute and/or rules and that those violations will be submitted to the Board for whatever penalty/disciplinary action it deems appropriate (f) Licensees who are ordered by the Board to perform certain acts may be inspected on an unannounced basis to verify that the licensee has performed the required acts. Licensees who are subject to a Board Order may also be requested to appear before the Board at a Board meeting to discuss compliance with the requirements of the Board Order. If the licensee is found to have refused or failed to comply with the Board Order, the executive director will advise the licensee that a report will be prepared documenting the failure to comply and that the report will be submitted to the Board for consideration of disciplinary action. 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 21, 1994. TRD-9435037 Janie Alonzo Certifying Official, Staff Services Officer I Texas State Board of Podiatry Examiners Earliest possible date of adoption: February 28, 1994 For further information, please call: (512) 794-0145 TITLE 25. HEALTH SERVICES Part II. Texas Department of Mental Health and Mental Retardation Chapter 401. System Administration Subchapter A. Advisory Committees 25 TAC sec.401.23, sec.401.24 (Editor's Note: The Texas Department of Mental Health and Mental Retardation proposes for permanent adoption the new sections it adopts on an emergency basis in this issue. The text of the new sections is in the Emergency Rules section of this issue.) The Texas Department of Mental Health and Mental Retardation (TDMHMR) proposes new sec.401.23 and sec.401.24 of Chapter 401, Subchapter A, concerning advisory committees. The new sections are proposed contemporaneously with their emergency adoption in this issue of the Texas Register. The proposal affects Texas Civil Statutes, Article 6252-33. In keeping with provisions of Senate Bill 383 (73rd Legislature), the proposed new section recognizes two newly created advisory committees concerning provider/authority roles and alternate uses for the Travis State School. The new sections outline the purpose, tasks, and duration of the committees, which are subject to all other requirements of Chapter 401, Subchapter A, concerning advisory committees. Leilani Rose, director, Office of Financial Services, has determined that there will be no significant fiscal implications for state or local government as a result of administering the sections as proposed. Local economic impact is anticipated to be insignificant. Dennis Jones, commissioner, has determined that the public benefit is the creation of an advisory committee which will review and recommend means of creating a new authority structure for the TXMHMR system which promotes efforts to create a more person-centered system, as well as the creation of an advisory committee which will review and recommend the most appropriate alternate use for the Travis State School upon its closure. There will be no effect on small businesses. There is no anticipated cost to persons required to comply with the proposed new sections. Comments on the proposal may be submitted to Linda Logan, Director, Policy Development, Texas Department of Mental Health and Mental Retardation, P.O. Box 12668, Austin, Texas 78711-2668, within 30 days of publication. The new sections are proposed under the Texas Health and Safety Code, sec.532.015, which provides the Texas Board of Mental Health and Mental Retardation with rulemaking powers. Cross reference to statute-Texas Civil Statutes, Article 6252-33. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 21, 1994. TRD-9435058 Ann K. Utley Chairman Texas Mental Health and Mental Retardation Earliest possible date of adoption: February 28, 1994 For further information, please call: (512) 206-4516 TITLE 30. ENVIRONMENTAL QUALITY Part I. Texas Natural Resource Conservation Commission Chapter 291. Water Rates Subchapter D. Records and Reports 30 TAC sec.291.76 The Texas Natural Resource Conservation Commission (Commission) proposes new sec.291.76, concerning regulatory assessment. The Water Code, sec.5.235(n), authorizes the Commission to collect a regulatory assessment from utility service providers. House Bill 2605, Acts of the 73rd Legislature, 1993, amended the Water Code, sec.5.235, by deleting specific procedural requirements for assessing and collecting fees and authorized the Commission to establish such procedures by rule. New sec.291.76 is proposed for the purpose of incorporating into rule the existing procedural requirements related to the collection of regulatory assessments. The rule also establishes a mechanism for enforcement of the collection and remittance provisions. House Bill 2605 also authorizes the Commission to establish by rule interest penalties for late payment of fees consistent with those authorized under the Tax Code for delinquent taxes. Stephen Minick, Budget and Planning Division, has determined that for the first five-year period this section will be in effect there will be no fiscal implications for state or local government as a result of enforcement and administration of the section. This section incorporates existing procedures into rule with only minor changes related to interest penalty provisions. These changes will have no significant impact on any party subject to this section. Mr. Minick also has determined that for each year of the first five years this section is in effect the public benefit anticipated as a result of enforcement of and compliance with the section will be maintenance of existing regulatory and technical assistance programs for water utility service providers and improved consistency of Commission regulations and statutory authority related to water utilities. Written comments on this proposal may be submitted to Dean Robbins, P.E., Director, Water Utilities Division, Texas Natural Resource Conservation Commission, P.O. Box 13087, Austin, Texas 78711, (512) 463-8227. The deadline for submission of written comments will be at 5:00 p.m. 30 days after the date of publication of this proposal in the Texas Register . A public hearing on this proposal will be held on February 22, 1994 at 9:00 a.m. in Room 118 of the Stephen F. Austin Building, 1700 North Congress Avenue, Austin. The new section is proposed under the Water Code, sec.5.235(n), which authorizes the Texas Natural Resource Conservation Commission to collect regulatory assessments, sec.5.230 which authorizes the enforcement of permits certified filing, and the Water Code sec.5.102 and sec.5.105, which provides the Commission with the authority to adopt any rules necessary to carry out its powers and duties under the Code and other laws of the State of Texas, and to establish and approve all general policy of the Commission. The proposed new sections implement no other statutes. sec.291.76. Regulatory Assessment. (a) For the purpose of this section, utility service provider means a public utility, water supply corporation or sewer service corporation as defined in the Water Code, sec.13. 002, or a district as defined in the Water Code, sec.50.001. (b) Except as otherwise provided, a utility service provider which provides potable water or sewer utility service shall collect a regulatory assessment from each retail customer and remit such fee to the commission under the provisions of this section. (c) A utility service provider is prohibited from collecting a regulatory assessment from the state or a state agency or institution. (d) Amounts payable to the commission shall be based on the following: (1) for a public utility as defined in the Water Code, sec.13.002, 1.0% of the charge for retail water and sewer service; (2) for a water supply or sewer service corporation as defined in the Water Code, sec.13.002, 0.5% of the charge for retail water and sewer service; (3) for a water district as defined in the Water Code, sec.50.001, 0.5% of the charge for retail water and sewer service. (e) The amount payable to the commission shall be based on the amounts actually collected by the utility service provider during the payment period. (f) The amount payable shall be based on water and sewer service charges to retail customers only, and shall not be based on: (1) associated delinquent, penalty or interest charges; (2) tap fees, standby fees, impact fees, extension fees, capital improvement surcharges, itemized solid waste collection fees or other unrelated charges; or (3) wholesale charges from one utility service provider to another. (g) The utility service provider may include the assessment as a separate line item on a customer's bill or include it in the retail charge. (h) The utility service provider shall be responsible for keeping proper records of the annual charges and assessment collections for retail water and sewer service and provide such records to the commission upon request. (i) The amount payable may be remitted to the commission on a quarterly basis or on an annual basis. If payments are made on a quarterly basis and submitted to the commission not later than January 30th, April 30th, July 30th, and October 30th, the utility service provider may retain 10% of the total amount collected to cover administrative costs incurred in collecting and remitting the assessment. If payments are remitted annually, the full amount collected is due by January 30th of the following year. (j) The utility service provider shall pursue collection of the assessment from the customer in the same manner and with the same diligence that it pursues collection of other service charges. (k) If assessments remitted on an annual basis are not received by the commission by January 30th following the year in which they are collected, the utility service provider shall be assessed a penalty of 5.0% of the amount due, and if the fees are not paid within 30 days after the day on which the fees are due, an additional 5.0% penalty shall be imposed. An annual interest rate of 12%, compounded monthly, shall be imposed on delinquent fees beginning 60 days from the date on which the fee is due. (l) The regulatory assessment does not apply to water that has not been treated for the purpose of human consumption. (m) A utility service provider is exempt from the provisions of this section if such provider: (1) does not own and has no responsibility for operation and maintenance of the facilities necessary in providing water and sewer utility service, including distribution and collection systems; (2) does not maintain a security interest in the facilities necessary in providing water and sewer utility service; (3) has no authority to set the retail customer's rates; and (4) does not make policy decisions regarding water and sewer services. (n) If it appears that utility service provider has violated this section, the commission may request a civil suit to be brought in a court of competent jurisdiction for injunctive or other appropriate relief. (1) At the request of the commission the attorney general shall bring and conduct the suit in the name of the state. (2) The suit may be brought in Travis County or in the county in which the defendant resides. 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 24, 1994. TRD-9435099 Mary Ruth Holder Director, Legal Division Texas Natural Resource Conservation Commission Earliest possible date of adoption: February 28, 1994 For further information, please call: (512) 463-8069 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part IV. School Land Board Chapter 9. Exploration and Leasing of Oil and Gas 31 TAC sec.9.7 The School Land Board proposes an amendment to sec.9.7, concerning the potential reduction of penalty and interest. This amendment establishes standards by which the School Land Board may reduce an assessment of penalty and interest. The amendment is designed to encourage the payment of underpaid or delinquent royalties owed to the Permanent School Fund. It is anticipated that this rule change will increase the aggregate amount of revenue collected. Della Pearson, deputy, Energy Resources Program Area, General Land Office, 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. Pearson 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 provide a standard for the School Land Board to reduce penalty or interest assessed on outstanding royalty sums due and owing the General Land Office in order to encourage the payment of underpaid or delinquent royalties and associated penalties and interest. 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 Katherine Minter Cary, Texas General Land Office, Legal Services Division, 1700 North Congress Avenue, Room 630, Austin, Texas 78701-1495. The amendment is proposed under the Texas Natural Resources Code, Title 2, Subtitle D, sec.52.131(j), which provides the School Land Board the authority to provide procedures and standards for reduction of penalties and interest assessed by the Commissioner relating to unpaid or delinquent royalties. sec.9.7. Royalty and Reporting Obligations to the State. (a) (No change.) (b) Monetary royalties and reports. (1)-(2) (No change.) (3) Penalties and interest. (A)-(D) (No change.) (E) Reduction of Penalty and/or Interest. The School Land Board may reduce penalties and/or interest that have been assessed by the Commissioner in the following circumstances: (i) When a lessee brings a deficiency to the General Land Office's attention voluntarily; and/or (ii) When a lessee and the General Land Office have reached an agreement regarding the reduction as part of a resolution of an outstanding audit issue. (4)-(5) (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 19, 1994. TRD-9435001 Garry Mauro Commissioner General Land Office Earliest possible date of adoption: February 28, 1994 For further information, please call: (512) 463-5009 Chapter 10. Exploration and Development of State Minerals Other Than Oil and Gas 31 TAC sec.10.8 The School Land Board proposes an amendment to sec.10.8, concerning the potential reduction of penalty and interest. This amendment establishes standards by which the School Land Board may reduce an assessment of penalty and interest. Della Pearson, deputy, Energy Resources Program Area, General Land Office, 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 amendment is designed to encourage the payment of underpaid or delinquent royalties owed to the Permanent School Fund. It is anticipated that this rule change will increase the aggregate amount of revenue collected. Ms. Pearson also has determined that there will be no fiscal implications to units of state or local government as a result of enforcing the rule. For the first five year period the amendment as proposed is in effect, the public benefit anticipated as a result of enforcing the rule will be a standard for the School Land Board to reduce penalty or interest assessed on outstanding royalty sums due and owing the General Land Office in order to encourage the payment of underpaid or delinquent royalties and associated penalties and interest. Comments on the proposed amendment may be submitted to Katherine Minter Cary, Texas General Land Office, Legal Services Division, 1700 North Congress Avenue, Room 630, Austin, Texas 78701-1495. The amendment is proposed under the Texas Natural Resources Code, Title 2, Subtitle D, sec.53.024 and sec.53.078, which provide the School Land Board with authority to provide procedures and standards for reduction of penalties and interest assessed by the Commissioner relating to unpaid or delinquent royalties. sec.10.8. Assignments Releases, Reports, Royalty Payments, Inspections, Forfeitures, and Reinstatements. (a)-(d) (No change.) (e) Reduction of Penalty and/or Interest. The School Land Board may reduce penalties and/or interest that have been assessed by the Commissioner in the following circumstances: (1) when a lessee brings a deficiency to the General Land Office's attention voluntarily; and/or (2) when a lessee and the General Land Office have reached an agreement regarding the reduction as part of a resolution of an outstanding audit issue. 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 21, 1994. TRD-9435000 Garry Mauro Commissioner General Land Office Earliest possible date of adoption: February 28, 1994 For further information, please call: (512) 463-5009 Title 34. PUBLIC FINANCE Part I. Comptroller of Public Accounts Chapter 3. Tax Administration Subchapter F. Motor Vehicle Sales Tax 34 TAC sec.3.94 The Comptroller of Public Accounts proposes new sec.3.94, concerning filing motor vehicle reports. The new section is necessary to inform certain sellers of their reporting responsibilities which were established by recent legislative changes. Mike Reissig, chief revenue estimator, has determined that for the first five- year period the rule will be in effect there will be no significant revenue impact on state or local government. Mr. Reissig also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be in providing new information regarding tax responsibilities. This rule is adopted under the Tax Code, Title 2, and does not require a statement of fiscal implications for small businesses. There is no significant anticipated economic cost to persons who are required to comply with the proposed rule. Comments on the new section may be submitted to Charles C. Johnstone, Manager, Tax Administration Division, P.O. Box 13528, Austin, Texas 78711. The new section is proposed under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. The new section implements the Tax Code, sec.152.047. sec.3.94. Filing Reports. (Texas Tax Code, sec. s151.401, 151.402, 151. 406, 151.409, 152.047). (a) Definition of place of sale. Place of sale means the county in which the application for certificate of title is filed. (b) Monthly filing. The motor vehicle sales taxes on amounts received on seller-financed sales and rentals are due and payable on or before the 20th day of the month following the end of each calendar month. Returns must be filed on a monthly basis unless a taxpayer qualifies as a quarterly filer or prepays tax on a quarterly basis. See subsections (c) and (d)(3) of this section. (c) Quarterly filing. A taxpayer who owes less than $1,500 in tax for any calendar quarter is required to file a return and pay the tax on or before the 20th day of the month following the end of the calendar quarter. (d) Filing the return. (1) The return for each reporting period must reflect the total receipts and taxable receipts for each county in which sales occurred. The 0. 5% discount for timely filing and payment may be claimed on the return for each reporting period and computed on the amount timely reported and paid with that return. (2) The comptroller will make forms available to all persons required to file returns. The failure of a taxpayer to obtain the forms will not relieve the taxpayer from the requirement to file and remit the tax timely. (3) Prepayments may be made by taxpayers who file monthly or quarterly returns. The amount of the prepayment must be a reasonable estimate of the state and local tax liability for the entire reporting period. "Reasonable estimate" means at least 90% of the total amount due or an amount equal to the actual net tax liability due and paid for the same reporting period of the immediately preceding year. (A) The monthly prepayment is due on or before the 15th day of the month for which the prepayment is made. Prepayments earn an additional 1.25% discount. (B) The quarterly prepayment is due on or before the 15th day of the second month of the quarter for which the tax is due. Prepayments earn an additional 1.25% discount each quarter. (4) A remittance that is less than a reasonable estimate as required by paragraph (3) of this subsection will not be regarded as a prepayment. The 1. 25% discount will not be allowed. If the taxpayer owes more than $1,500 in a calendar quarter, the taxpayer will be regarded as a monthly filer. All monthly reports not filed because of the invalid prepayment will be subject to late filing penalty and interest. (5) Filing late payments or filing late returns will cause all discounts to be disallowed and penalties for late filing or payment will be imposed. Reports filed late will result in disallowance of the prepayment discount. 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 20, 1994. TRD-9434945 Martin E. Cherry Chief, General Law Section Comptroller of Public Accounts Earliest possible date of adoption: February 28, 1994 For further information, please call: (512) 463-4028 Chapter 5. Funds Management (Fiscal Affairs) Uniform Statewide Accounting System 34 TAC sec.5.200 The Comptroller of Public Accounts proposes new sec.5.200, concerning the state property accounting system. The new section is necessary because of the recent implementation of the state property accounting system as the personal property fixed asset component of the uniform statewide accounting system. Mike Reissig, chief revenue estimator, has determined that for the first five- year period the rule will be in effect there will be no significant revenue impact on state agencies. Mr. Reissig also has determined that for each year of the first five years the rule is in effect the benefit anticipated for state agencies as a result of enforcing the rule will be in providing new information regarding their accounting responsibilities. There will be no significant fiscal implications for small businesses. There is no significant anticipated economic cost to persons who are required to comply with the proposed rule. Comments on the proposal may be submitted to Stephanie Muller, Assistant Director of the Uniform Statewide Accounting System, P.O. Box 13528, Austin, Texas 78711. The new section is proposed under the Texas Government Code, sec.403.271(b), which requires the comptroller to adopt necessary rules for the implementation of the state property accounting system. The new section implements the Government Code, sec. s403.271-403.278. sec.5.200. State Property Accounting System. (Government Code, sec.sec.403. 271-403.278). (a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Annual physical inventory-The physical inventory that a state agency must conduct once each year in accordance with this section. (2) Betterment of personal property-An improvement of personal property that materially increases its serviceability or useful life, or both. (3) Capital asset-A possession of the state that has a value of at least $1,000 and an estimated useful life of more than one year. The term does not include real property, improvements to real property, or infrastructure. (4) Capital lease-A lease of personal property under which the lessee substantially assumes the risks and benefits of ownership as specified under generally accepted accounting principles. (5) Comptroller-The comptroller of public accounts for the State of Texas. (6) Controlled asset-A possession of the state that a state agency has determined must be secured and tracked because of the nature of the possession. The term does not include a capital asset, real property, an improvement to real property, or infrastructure. (7) Fiduciary fund-A fund held by a state agency as trustee of the fund. The term includes pension funds and non-expendable trust funds. (8) Include-A term of enlargement and not of limitation or exclusive enumeration. The use of the term does not create a presumption that components not expressed are excluded. (9) May not-A prohibition. The term does not mean "might not" or its equivalents. (10) Personal property-A capital asset or a controlled asset. (11) Proprietary fund-A self-supporting fund whose resources are generated through user charges. The term includes enterprise and internal service funds. (12) Reassignable personal property-Personal property that retains usage value for the state, continues to be functionally capable of serving a state agency, and is not surplus personal property. (13) Replacement of personal property-A replacement of an internal or external part of personal property that allows it to complete its normal useful life. (14) Salvage personal property-Personal property that no longer serves its original purpose because it is depleted, worn out, damaged, consumed, outdated, or obsolete. The term does not include personal property that has a remaining useful life. (15) State agency-A state governmental entity that manages, administers, or controls personal property. (16) State employee-An officer or employee of a state agency. (17)State property accounting system-The personal property fixed asset component of the uniform statewide accounting system. (18)Supplemental physical inventories-The optional physical inventories that a state agency conducts in addition to the required annual physical inventory. (19)Surplus personal property-Personal property in the possession of a state agency that is not currently needed by the agency and is not required for the agency's foreseeable needs. The term does not include salvage personal property. (20)Trust property-Property not owned by the state that a state agency temporarily holds on behalf of the owner. (b) Controlled assets. The state agency that manages, administers, or controls a possession of the state should use good business practices when determining whether the possession is a controlled asset. (c) Exemptions. (1) Equipment and supplies purchased through programs, contracts, or grants with the Texas Department of Health. (A) An item of equipment or a supply is exempt from the requirements of subsections (b) and (d)-(s) of this section if it is: (i) used to promote and maintain public health; (ii) is purchased by or for a qualified entity; and (iii) is purchased through a program, contract, or grant with the Texas Department of Health. (B) The exemption ends if the item or supply is returned to the Texas Department of Health upon the termination of the applicable program, contract, or grant. When the exemption ends, the formerly exempt equipment or supply must be reported to the state property accounting system in accordance with the comptroller's requirements. (C) A state agency that purchases an exempt item of equipment or a supply shall develop and maintain internal control procedures for keeping a complete and accurate inventory of the items exempt under subparagraph (A) of this paragraph. (D) In this paragraph, "qualified entity" includes an individual, a corporation, a local unit of government, and a state agency. (2) The Texas Rehabilitation Commission and the Texas Commission for the Blind. (A) A material, tool, book, or other necessary apparatus provided to a client by the Texas Rehabilitation Commission or the Texas Commission for the Blind is exempt from subsections (b) and (d)-(s) of this section. (B) The Texas Rehabilitation Commission and the Texas Commission for the Blind shall each develop and maintain internal control procedures for keeping a complete and accurate inventory of the items that are exempt under subparagraph (A) of this paragraph. (C) The state auditor may request to review an inventory required by subparagraph (B) of this paragraph at any time. (D) An item that no longer qualifies for an exemption under subparagraph (A) of this paragraph must be added to the state property accounting system. (3) Items provided to clients of state agencies. (A) The comptroller may exempt from the reporting requirements of this section a material, tool, book, or other necessary apparatus if the item is provided to a client by a qualifying state agency. (B) The appropriate state agency shall develop and maintain internal control procedures for keeping a complete and accurate inventory of the items that are exempt under subparagraph (A) of this paragraph. (C) The state auditor may request to review an inventory required by subparagraph (B) of this paragraph at any time. (D) An item that no longer qualifies for an exemption under subparagraph (A) of this paragraph must be added to the state property accounting system. (d) Certification of internal state agencies and reporting state agencies. (1) General requirement. A state agency must be certified as an internal state agency or a reporting state agency. (2) Initial certification. A state agency that has not been certified before the effective date of this section must properly complete and submit to the comptroller the form required by the comptroller. The agency must specify on the form whether the agency wants certification as an internal state agency or a reporting state agency. The comptroller shall review the form and consider the agency's ability to comply with this section before certifying the agency. (3) State agency requests for changes in certification. (A) A reporting state agency may change its certification to an internal state agency by: (i) properly completing the form required by the comptroller; and (ii) obtaining the comptroller's approval of the change. (B) An internal state agency may change its certification to a reporting state agency by: (i) properly completing the form required by the comptroller; and (ii) obtaining the comptroller's approval of the change. (C) When considering whether to approve or disapprove a state agency's request for a certification change, the comptroller shall: (i) consider the agency's history of complying or not complying with this section's requirements for the agency's current certification; and (ii) determine the agency's capability to comply with this section's requirements for the agency's requested certification. (D) This subparagraph applies if the comptroller receives a state agency's request for a certification change not later than the 30th day before the start of the next fiscal year. If the comptroller approves the change, then the change is effective on the later of: (i) the first day of the fiscal year following the fiscal year during which the comptroller approves the change; or (ii) the date the state property accounting system receives a full and accurate reporting from the agency of its property balances as of the end of the fiscal year during which the comptroller approves the change. (E) This subparagraph applies if the comptroller receives a state agency's request for a certification change during the last 29 days of a fiscal year. If the comptroller approves the change, then the change is effective on the later of: (i) the first day of the second fiscal year following the fiscal year during which the comptroller receives the request; or (ii) the date the state property accounting system receives a full and accurate reporting from the agency of its property balances as of the end of the fiscal year following the fiscal year in which the comptroller receives the request. (4) Certification changes initiated by the comptroller. (A) The comptroller may change a state agency's certification from a reporting state agency to an internal state agency or vice versa anytime the comptroller determines the change is needed. (B) If the comptroller changes a state agency's certification under subparagraph (A) of this paragraph, then the change is effective on the date specified by the comptroller. (5) Criteria for certification as an internal state agency. A state agency may be an internal state agency only if: (A) the agency determines that it will use the state property accounting system as its own property accounting system; and (B) the agency agrees to maintain a perpetual inventory. (6) Criteria for certification as a reporting state agency. (A) A state agency is a reporting state agency if it: (i) is not exempt from this section; and (ii) is not an internal state agency. (B) A reporting state agency shall modify its personal property accounting system to comply with the comptroller's reporting requirements, as periodically amended. (C) A reporting state agency shall demonstrate to the comptroller's satisfaction that the agency has disaster recovery capability. (e) Physical inventories. (1) Frequency and timing of physical inventories. (A) Except as provided by subsection (n) of this section, a state agency shall conduct an annual physical inventory of the personal property and trust property in the agency's possession. The agency may choose the date of the inventory. (B) The comptroller encourages a state agency to conduct each year one or more supplemental physical inventories of the personal property and trust property in the agency's possession. (2) Requirements for annual physical inventories. (A) When a state agency conducts an annual physical inventory of the personal property and trust property in the agency's possession, the agency shall: (i) ensure that each property item is still within the agency's possession; (ii) determine whether the person who has custody of each property item as indicated on the agency's records still has custody of the item; and (iii) determine the condition of each property item. (B) A state agency may use any method for conducting an annual physical inventory that is acceptable to the comptroller. (C) If the results of a state agency's annual physical inventory vary from the records on the state property accounting system, then the agency shall immediately report the discrepancies to the comptroller through the system. The report must provide a reason for each discrepancy. (3) Reports to the comptroller about annual physical inventories. (A) The head of a state agency shall send a report to the comptroller about the agency's annual physical inventory. (B) The report must contain: (i) a copy of the results of the inventory; and (ii) a signed statement that: (I) provides the date the inventory was conducted; (II) identifies the individuals who conducted the inventory; (III) describes the methods used to conduct the inventory; (IV) summarizes the values received from the inventory; and (V) contains the other information required by the comptroller. (C) Deadline for reports. The head of a state agency shall ensure that the comptroller receives a copy of the results of the agency's inventory and the signed statement not later than the earliest of: (i) the 45th day after the date the inventory is conducted; or (ii) the 20th day after the end of the fiscal year for which the inventory is conducted. (4) Requirements for supplemental physical inventories. (A) A state agency may use any method for conducting a supplemental physical inventory that is acceptable to the comptroller. Statistical sampling and dollar unit sampling techniques are acceptable if they are properly used and comply with the comptroller's requirements. (B) A state agency shall maintain in its records the results of each supplemental physical inventory. (C) If the results of a state agency's supplemental physical inventory vary from the records on the state property accounting system, then the agency should consider the immediate conducting of an annual physical inventory. (5) Loaned personal property. Personal property that a state agency has loaned to another state agency is the responsibility of the lending state agency for the purpose of this subsection. (6) Transferred personal property. Personal property, including reassignable personal property, that a state agency has transferred to another state agency is the responsibility of the transferring state agency until the transfer has been completed in accordance with the comptroller's requirements. (7) Missing, stolen, salvage, or surplus personal property. A state agency must include in a physical inventory the agency's missing, stolen, salvage, or surplus personal property until it has been deleted from the state property accounting system in accordance with this section. (f) Records and reporting. (1) Internal state agencies. (A) An internal state agency shall maintain a perpetual inventory. The agency shall record personal property and trust property on the state property accounting system at the time of acquisition. The information must be recorded in accordance with the comptroller's requirements. (B) The comptroller shall maintain an internal agency's property records on the state property accounting system. (2) Reporting state agencies. (A) A reporting state agency shall report information to the state property accounting system in accordance with the comptroller's schedules, procedures, and classification system. The comptroller may require a reporting state agency to submit information at any time. The comptroller shall notify reporting state agencies in writing about the required frequency of the agencies' reports. (B) A reporting state agency shall maintain its property records in the manner and format required by this section and the comptroller. The agency shall ensure that its property accounting system is always capable of providing the information required by the state property accounting system. (3) Group and unit tracking of personal property. (A) A state agency shall track personal property on a unit basis. (B) Possessions of the state other than personal property may be tracked on a group basis only if the requirements of subparagraphs (C) and (D) of this paragraph are satisfied. (C) A state agency may track possessions of the state on a group basis only if all the possessions in the group: (i) have the same characteristics; (ii) have the same purchase and in-service dates; (iii) have the same class code; (iv) are visually identifiable as logically belonging to the group; and (v) may be depreciated using the same methods. (D) Notwithstanding anything in this paragraph, possessions of the state that are purchased with debt financing by the Texas Public Finance Authority may be tracked on a group basis only if all the possessions in the group are included in the same lease supplement. (4) Missing, stolen, damaged, or destroyed personal property. (A) Upon receiving a report about stolen, damaged, or destroyed personal property from a head of agency under subsection (g)(1)(C) or (D) of this section or from a property manager under subsection (h)(2)(B) or (C) of this section, the comptroller shall forward necessary records about the property to the state auditor and the attorney general. (B) The attorney general may investigate and take appropriate legal action to recover the value of stolen, damaged, or destroyed personal property. The attorney general shall determine the value of the property to be recovered based on the market value of the property and the degree of responsibility of the person who was entrusted with the property. (C) A state agency may not delete missing personal property from the state property accounting system before three annual physical inventories have been conducted or three calendar years have elapsed since it was determined to be missing. (D) A state agency may delete missing, stolen, damaged, or destroyed personal property from the state property accounting system only in accordance with the comptroller's procedures. (g) Responsibilities of heads of state agencies. (1) Care, custody, and control of personal property. (A) The head of a state agency is responsible for the custody and care of personal property and trust property in the agency's possession. This responsibility does not end when a property manager is designated. (B) The head of a state agency is responsible for ensuring that the agency maintains adequate inventory controls on personal property and trust property. Upon request, the state auditor may advise and make recommendations to the agency about those controls. (C) If the head of a state agency has reasonable cause to believe that the agency's personal property or trust property is missing, damaged, or destroyed because of a state employee's negligence, then the head of agency shall file a report with the comptroller, the state auditor, and the attorney general. (i) A report to the comptroller must be made immediately and by entering the appropriate disposal code into the state property accounting system. (ii) A report to the state auditor must be made through a deletion request entered into the state property accounting system. A head of agency should transmit to the state auditor by facsimile the appropriate form within 24 hours after entering the deletion request. (iii) A report to the attorney general must include the appropriate form. The form must be transmitted to the attorney general by facsimile. The report must be made not later than the fifth working day after reasonable cause for the belief arises. (D) If the head of a state agency has reasonable cause to believe that the agency's personal property or trust property has been stolen, then the head of agency shall inform the comptroller, the state auditor, the attorney general, and law enforcement personnel. (i) A report to the comptroller must be made immediately and by entering the appropriate disposal code into the state property accounting system. (ii) A report to the state auditor must be made through a deletion request entered into the state property accounting system. A head of agency should transmit to the state auditor by facsimile the appropriate form and police report within 24 hours after entering the deletion request. (iii) A report to the attorney general must include the appropriate form. The form must be transmitted to the attorney general by facsimile. The report must be made not later than the fifth working day after reasonable cause for the belief arises. (iv) A report to law enforcement personnel must be made not later than the 48th hour after reasonable cause for the belief arises. (2) Designation, supervision, and training of property managers. (A) The head of a state agency shall: (i) designate a property manager for the agency; (ii) inform the comptroller of the designation by properly completing and submitting the form required by the comptroller; and (iii) ensure that the property manager receives training about this section and the state property accounting system. (B) The head of a state agency may designate more than one property manager for the agency only if the comptroller approves. (C) The head of a state agency may designate one or more alternate property managers for the agency. The head of agency shall inform the comptroller of the designation by properly completing and submitting the form required by the comptroller. (D) If a state agency's property manager or alternate property manager changes, then the head of the agency shall inform the comptroller of the change by properly completing and submitting the form required by the comptroller. (E) The head of a state agency shall ensure that the property manager for the agency properly carries out the property manager's duties as required by this section. (3) Providing receipts. The head of a state agency shall provide the receipt required by subsection (h)(4) of this section if the head of agency is entrusted with personal property or trust property. (4) Use of personal property or trust property. The head of a state agency may use personal property and trust property only for state purposes. (5) Change in the head of a state agency. (A) When the head of a state agency changes, the outgoing head of agency shall complete the form required by the comptroller and deliver the form to the incoming head of agency. (B) After verifying and signing the form, the incoming head of agency shall send copies of the form to the comptroller and the state auditor. (6) Liability. The head of a state agency is financially liable for the loss sustained by the state if the head of agency is entrusted with personal property or trust property and: (A) the property disappears because the head of agency fails to exercise reasonable care for its safekeeping; (B) the property deteriorates because the head of agency fails to exercise reasonable care to maintain and service it; or (C) the property is damaged or destroyed because of the head of agency's negligent or intentional wrongful act. (h) Responsibilities of property managers. (1) Determining the responsibilities of alternate property managers. The property manager of a state agency shall determine the responsibilities of the agency's alternate property managers. The property manager shall ensure that the alternate property managers properly fulfill their responsibilities. (2) Custody of personal property and trust property. (A) The property manager of a state agency is the custodian of all personal property and trust property possessed by the agency. (B) If a property manager has reasonable cause to believe that personal property or trust property is missing, damaged, or destroyed because of a state employee's negligence, then the property manager shall inform the comptroller, the state auditor, and the attorney general. A report to the comptroller must be made in the form and manner required by the comptroller. (i) A report to the comptroller must be made immediately and by entering the appropriate disposal code into the state property accounting system. (ii) A report to the state auditor must be made through a deletion request entered into the state property accounting system. A property manager should transmit to the state auditor by facsimile the appropriate form within 24 hours after entering the deletion request. (iii) A report to the attorney general must include the appropriate form. The form must be transmitted to the attorney general by facsimile. The report must be made not later than the fifth working day after reasonable cause for the belief arises. (C) If a property manager has reasonable cause to believe that the agency's personal property or trust property has been stolen, then the property manager shall inform the comptroller, the state auditor, the attorney general, and law enforcement personnel. (i) A report to the comptroller must be made immediately and by entering the appropriate disposal code into the state property accounting system. (ii) A report to the state auditor must be made through a deletion request entered into the state property accounting system. A property manager should transmit to the state auditor by facsimile the appropriate form and police report within 24 hours after entering the deletion request. (iii) A report to the attorney general must include the appropriate form. The form must be transmitted to the attorney general by facsimile. The report must be made not later than the fifth working day after reasonable cause for the belief arises. (iv) A report to law enforcement personnel must be made not later than the 48th hour after reasonable cause for the belief arises. (3) Maintaining records. The property manager of a state agency shall maintain the records required by the comptroller and this section. (4) Entrusting personal property or trust property to other persons. (A) A property manager may not entrust personal property or trust property to a person unless the person provides a signed, written, and dated receipt to the property manager. (B) The receipt must contain a statement similar to the following. "I understand that I am financially liable to the state for the disappearance of the personal property or trust property if I fail to exercise reasonable care for its safekeeping; the deterioration of the property if I fail to exercise reasonable care to maintain and service it; and the damage or destruction of the property if it occurs because of my negligent or intentional wrongful act. " (C) A property manager may not entrust personal property or trust property to a person if the property manager knows or reasonably should know that the person will use the property for other than state purposes. (5) Use of personal property and trust property. A property manager may use personal property and trust property only for state purposes. (6) Changes in property managers. (A) When a property manager changes, the outgoing property manager shall complete the form required by the comptroller and deliver the form to the incoming property manager. (B) After verifying and signing the form, the incoming property manager shall send copies of the form to the comptroller and the state auditor. (7) Liability. A property manager is financially liable for the loss sustained by the state if the property manager is entrusted with personal property or trust property and: (A) the property disappears because the property manager fails to exercise reasonable care for its safekeeping; (B) the property deteriorates because the property manager fails to exercise reasonable care to maintain and service it; or (C) the property is damaged or destroyed because of the property manager's negligent or intentional wrongful act. (i) Responsibilities of state employees. (1) Providing receipts. A state employee shall provide the receipt required by subsection (h)(4) of this section if the employee is entrusted with personal property or trust property. (2) Use of personal property and trust property. A state employee may use personal property and trust property only for state purposes. (3) Liability. A state employee is financially liable for the loss sustained by the state if the employee is entrusted with personal property or trust property and: (A) the property disappears because the employee fails to exercise reasonable care for its safekeeping; (B) the property deteriorates because the employee fails to exercise reasonable care to maintain and service it; or (C) the property is damaged or destroyed because of the employee's negligent or intentional wrongful act. (j) Valuation of personal property. (1) General provision. This subsection governs the valuation of personal property as reported to the state property accounting system. (2) Newly acquired personal property. The value of newly acquired personal property must be equal to the sum of: (A) the cost of the property; and (B) the costs required to place the property into service. (3) Donated personal property. (A) The value of personal property acquired through donation must be equal to its fair market value on the date of donation. (B) The fair market value of donated personal property must be determined through a reasonable market study. (C) A state agency that conducts a market study shall fully document the methods used to conduct the study. The agency shall keep the documentation in the agency's records in accordance with the comptroller's requirements. The agency shall send a copy of the documentation to the state property accounting system. (4) Personal property manufactured by the state. The value of personal property manufactured by the state must be equal to the total cost of labor and materials. Overhead costs may be included in the value if the manufacturing state agency determines it would be cost-effective. (5) Betterments and replacements of personal property. (A) A state agency shall determine the value of a betterment or replacement of personal property: (i) immediately following the completion of the betterment or replacement; or (ii) at the agency's earliest opportunity as deemed appropriate by the agency and the comptroller. (B) The value of a betterment of personal property must be expensed unless the betterment increases the value or useful life of the property by at least 25%. If a betterment is not expensed, then the value of the property must be increased on the state property accounting system in accordance with the comptroller's requirements. (C) The value of a replacement of personal property is equal to the cost of the replacement less the original cost of the part being replaced. The value of the replacement must be expensed unless the replacement materially increases the value or estimated useful life of the property. If a replacement is not expensed, then the value of the property must be increased on the state property accounting system in accordance with the comptroller's requirements. (D) If a state agency is required to increase the value of personal property on the state property accounting system because of a betterment or replacement, then the agency shall keep documentation in its records that supports the amount of the increase. The agency shall make the documentation available for inspection upon request. The agency may destroy the documentation only in accordance with the comptroller's requirements. (6) Debt financed personal property. (A) In this paragraph, the total principal of debt financed personal property is equal to the purchase price of the property plus the applicable service charge imposed by the Texas Public Finance Authority. (B) The acquisition cost of debt financed personal property other than manufactured items must reflect the total principal of the property and the costs required to place the property into service. (C) The acquisition cost of debt financed personal property that has been manufactured should be equal to the total cost of acquiring the property plus the cost of placing the property into service. This includes the principal, interest, finance charges, costs of issuance, and administrative fees. (7) Leased personal property. (A) Personal property that a state agency has leased under a capital lease must be valued in accordance with this paragraph. (B) Subject to subparagraph (C) of this paragraph, the cost of leased personal property is equal to the present value of the minimum lease payments plus the cost of placing the property into service. The cost of the property does not include any costs not paid by the agency. (C) The cost of leased personal property may not exceed the property's fair market value. (8) Trade-ins. If a state agency is authorized to trade personal property for other personal property, then the agency must report the trade to the state property accounting system in accordance with the comptroller's requirements. (9) Condition of personal property. When a state agency reports reassignable, surplus, or salvage personal property to the state property accounting system, the agency must include the condition of the property in the report. The agency should use the categories adopted by the comptroller when reporting the condition of personal property. (10) Previously depreciated personal property. If a state agency obtains ownership of personal property that was previously purchased with federal funds and depreciated for federal reporting purposes, then the agency shall value the property at its original cost. The previous depreciation has no effect on the value of the personal property for the purposes of the state property accounting system. (k) Accounting practices. (1) Depreciation of personal property. (A) The depreciable personal property of proprietary and fiduciary funds must be depreciated in accordance with generally accepted accounting principles. (B) An internal state agency shall depreciate personal property that is a general fixed asset by using the straight line method. The depreciation must be recorded on the state property accounting system on a memorandum basis unless generally accepted accounting principles require depreciation. Regardless of how the depreciation is recorded, it shall be recorded at the end of each fiscal year unless the comptroller specifies otherwise. (C) The amount that personal property depreciates over a fiscal year by using the straight line method is equal to: (i) the difference between the property's acquisition cost and its salvage value; divided by (ii) the estimated useful life of the property expressed in years. (D) A state agency shall use the state property accounting system's default value for the estimated useful life of personal property unless the agency documents a different value based on the agency's experience. This subparagraph applies only when a state agency is calculating depreciation for the purpose of recording it on the state property accounting system. (2) Transfer of personal property between funds. (A) If a state agency transfers personal property from a proprietary fund to a governmental fund, then a new cost basis must be established for the property in the governmental fund. The new cost basis must be based on the acquisition cost of the property as recorded in the proprietary fund less any accumulated depreciation earned on the property. There is no requirement for the agency to modify the estimated useful life of the property. (B) If a state agency transfers personal property from a governmental fund to a proprietary or fiduciary fund, then the acquisition cost of the property must be recorded in the proprietary or fiduciary fund. The acquisition cost as recorded in the proprietary or fiduciary fund must be equal to the acquisition cost as recorded in the governmental fund. The estimated useful life of the property must be adjusted to reflect the best estimate of useful life available to the proprietary or fiduciary fund. (C) If a state agency transfers personal property from a governmental fund to another governmental fund, then the acquisition cost of the property as recorded in the new fund must be the same as the cost recorded in the old fund. (3) Reporting and reconciliation of personal property inventory balances. (A) A state agency shall: (i) report to the state property accounting system general ledger information using generally accepted accounting principles; (ii) track beginning balances at the beginning of each year; and (iii) report additions, deletions, and adjustments in personal property throughout the year so that year end balances can be determined. (B) An internal state agency should reconcile its general ledger balances for personal property to the supporting financial detail in the state property accounting system. The agency should accomplish the reconciliation on a monthly basis at the month-end closing. All adjustments made during the reconciliation should be supported and documented. The agency may destroy the documentation only in accordance with the comptroller's requirements. (C) A reporting state agency should reconcile its corresponding balances to the detail reported to the state property accounting system on a quarterly basis. Adjustments should be entered not later than the 20th day after the end of the quarter. All adjustments should be supported and documented. The agency may destroy the documentation only in accordance with the comptroller's requirements. (l) Maintaining records. (1) Forms. A state agency shall use the forms prescribed by the comptroller when taking any action authorized or required by this section. The comptroller may adopt and modify forms as the comptroller deems necessary. (2) Loans of personal property. (A) A state agency that loans personal property to another state agency shall document the loan as required by the comptroller. (B) A state agency that loans personal property to another state agency does not suspend or eliminate its responsibilities toward the property under this section and applicable law. (3) Transfers of personal property. (A) A state agency that transfers personal property to another state agency shall comply with the procedures and requirements adopted by the comptroller. (B) A state agency that receives personal property from another state agency shall comply with the procedures and requirements adopted by the comptroller. (C) Personal property that is transferred from one state agency to another is in the possession of the transferring agency until the receiving agency properly enters its receipt of the property in the state property accounting system. (D) A state agency may not transfer property purchased through the master lease financing program administered by the Texas Public Finance Authority unless the authority provides advance approval of the transfer in accordance with the authority's requirements. (4) Reassignable personal property. (A) A state agency that has possession of reassignable personal property shall identify the property to the state property accounting system. The system shall then advertise the availability of the property to other state agencies. (B) A state agency that transfers reassignable personal property to another state agency and the state agency that receives the property shall comply with the comptroller's procedures for the transfer. (C) This subparagraph applies if a state agency transfers to at least two state agencies reassignable personal property that is tracked on a group basis on the state property accounting system. The transferring state agency shall identify to the system the property that is transferred to each state agency. Each receiving state agency shall record its receipt of the property on the state property accounting system in accordance with subsection (f) of this section. (5) Surplus and salvage personal property. (A) A state agency shall comply with applicable law and rules when transferring, selling, or disposing of its surplus or salvage personal property. (B) When a state agency determines that it possesses surplus or salvage personal property, the agency shall notify the state property accounting system in accordance with the comptroller's requirements. (C) The notification provided under subparagraph (B) of this paragraph constitutes official notice to the General Services Commission that the surplus or salvage personal property is available for sale or other disposition. (D) A state agency may delete surplus or salvage personal property from the state property accounting system only by requesting the comptroller's approval. An approval request must comply with the comptroller's procedures. (E) Surplus personal property that has not been reported to the state property accounting system must be added to the system before the property may be deleted from the system. (F) Salvage personal property shall be removed from the state property accounting system in accordance with the comptroller's requirements. (G) Each house of the legislature is exempt from the surplus property provisions of the State Purchasing and General Services Act, Article 9, if the rules and regulations of the administration committee of the house has adopted a system for disposing of the property. (H) Subparagraphs (A)-(F) of this paragraph do not apply to products and by- products of research, forestry, agriculture, livestock, and industrial enterprises that exceed the quantity required for consumption by the producing state agency if the agency has a continuing and adequate system of marketing research and sales. The deletion of those products and by-products from the state property accounting system must comply with the comptroller's requirements. (I) State eleemosynary institutions and institutions and agencies of higher learning are exempt from the provisions in the State Purchasing and General Services Act, Article 9, that relate to the disposition of surplus or salvage property. (m) Inventory control. (1) Marking of personal property. A state agency shall permanently mark each item of personal property in the agency's possession as property of the State of Texas. The marking is permanent for the purpose of this paragraph if the marking can be removed only through considerable or intentional means. The marking shall be highly visible so that conducting a physical inventory is facilitated. (2) Property inventory numbers. (A) A state agency shall assign a unique property inventory number to each item of personal property that is tracked on a unit basis. The number shall be printed on a label. The label shall be attached to the item in a highly visible location so that conducting a physical inventory is facilitated. (B) A property inventory number may not be reused, even if property has been deleted from the state property accounting system. (3) Responsibility for securing and tracking personal property. A state agency is responsible for ensuring that its personal property and trust property are tracked and secured in the manner that is most likely to prevent damage to and the theft, loss, or misuse of the property. (4) Locating personal property. A state agency must know where all of its personal property and trust property is located at all times. (n) Abolished state agencies. (1) Application of this subsection. This subsection applies to an abolished state agency only to the extent this section is consistent with the law that abolishes the agency. (2) Responsibilities of the head of an abolished state agency. (A) The head of an abolished state agency shall: (i) conduct a complete and accurate physical inventory of the agency's possessions in accordance with the comptroller's requirements; (ii) furnish a copy of the inventory to the General Services Commission not later than the effective date of the abolition; and (iii) transfer all personal property of the agency to the General Services Commission in accordance with the comptroller's requirements. (B) The physical inventory required by subparagraph (A)(i) of this paragraph is in addition to the annual physical inventory required by subsection (e) of this section. (3) Responsibilities of the General Services Commission. The General Services Commission shall care for the personal property transferred to the commission under paragraph (2) of this subsection until the commission distributes or sells the property in accordance with applicable law. (o) Real property. (1) Using the state property accounting system to track real property. A state agency may use the state property accounting system to track real property if the agency: (A) establishes its own coding and accounting structures; and (B) complies with the comptroller's requirements. (2) Submitting information to the General Land Office. A state agency may not use the state property accounting system to track real property instead of submitting information about the property to the General Land Office. (p) Access to the state property accounting system. An individual may have access to the state property accounting system only in accordance with the procedures and security limitations prescribed by the comptroller. (q) Consequences of violating this section. The comptroller may refuse to draw warrants or initiate electronic funds transfers on behalf of a state agency that fails to comply with this section. (r) Conflict with federal laws or regulations. If a federal law or regulation conflicts with this section, then the law or regulation prevails over this section to the extent necessary to avoid the conflict. (s) Transition. (1) Application of this subsection. This subsection applies to personal property of a state agency only if: (A) the agency was not required to report the property to the General Services Commission by the State Purchasing and General Services Act, Article 8; and (B) this section requires the agency to report the property to the state property accounting system. (2) Deadline for initial reporting of personal property. Notwithstanding anything in subsections (a)-(r) of this section, a state agency shall complete its initial reporting of personal property to the state property accounting system not later than August 31, 1994. 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 20, 1994. TRD-9434941 Martin E. Cherry Chief, General Law Section Comptroller of Public Accounts Earliest possible date of adoption: February 28, 1994 For further information, please call: (512) 463-4028 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part III. Texas Youth Commission Chapter 91. Discipline and Control Control 37 TAC sec.sec.91.51, 91.59, 91.63 The Texas Youth Commission (TYC) proposes amendments to ssec.91.51, 91.59, and 91.63, concerning facility security, use of force, and mechanical restraint equipment. The amendment to sec.91.51 allows firearms in a TYC facility or on TYC grounds when there is an emergency and law enforcement has been called, and amendments to sec.91.59 and sec.91.63 allow TYC staff to use plastic cuffs on TYC youth only when they are involved in a riot at a TYC facility and a sufficient number of metal cuffs are not available. John Franks, director, Fiscal Affairs, 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. Franks also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be a safer environment for TYC youth and staff. 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 Gail Graham, Policy and Manuals Coordinator, Texas Youth Commission, 4900 North Lamar Boulevard, P.O. Box 4260, Austin, Texas 78765. The amendments are proposed under Human Resources Code, s61.034, which provides the Texas Youth Commission with the authority to make rules appropriate to the proper accomplishment of its functions. The proposed rule implements Human Resource Code, sec.61.034. sec.91.51. Facility Security. (a) Policy. Texas Youth Commission (TYC) provides for safety and security of its staff and youth. (b) Rules. (1) Firearms are not permitted in any TYC facility or on any facility grounds except in emergencies when law enforcement has been called
                . Firearms are permitted in the personal residence of staff who live adjacent to the campus. (2)-(5) (No change.) (6) Facilities have access to the necessary equipment to maintain essential light and a[s] system of communication within the facility and between the facility and the community for use in an emergency. (7) All facilities have written emergency plans including procedures for response to natural disaster
                  , fire, riot, hostage taking
                    , medical emergency, hunger strike, and
                      , evacuation [and natural disasters]. Plans are made available to all personnel and are reviewed and updated annually. (8)-(10) (No change.) sec.91.59. Use of Force. (a) Policy. The Texas Youth Commission (TYC) prohibits the use of physical force as punishment and sanctions its use only as a control measure to ensure the safety and welfare of youth and staff. Physical force is to be used as a last resort and only for purposes justified under this policy. Isolation and full body restraint may be employed only in TYC institutions. Also see GOP.67.13, sec.91.63
                        [67. 13] of this title (relating to Mechanical Restraint Equipment). Allegations of unjustified force are reported and investigated in compliance with GOP.61.15, sec.89.15 of this title (relating to Alleged Mistreatment Rules and Definitions) . (b) Rules. (1) Explanation of Terms Used. (A)-(B) (No change.) (C) Escort
                          [Compel Movement]-The physical force used to cause the movement of a person from one location to another. (D)-(E) (No change.) (2) (No change.) (3) Restrictions. (A) Physical force is justified only as a last resort and only in instances listed in paragraph (2) of this subsection, Criteria for Use. Last resort indicates that the staff has engaged in measured, progressively intense action to assist an out-of-control youth to regain self-control prior to considering use of force. When use of physical force is necessary, it should be measured and progressive in nature; however, the amount and type of force necessary to control violence should be used. Physical force is considered progressive as listed in clauses (i)-(v) of this subparagraph. (i) Escort
                            [Compel movement]; (ii)-(v) (No change.) (B)-(D) (No change.) (E) Only restraint equipment approved by TYC may be used. See GOP.67.13, sec.91.63
                              [67.13] of this title (relating to Mechanical Restraint Equipment). (F)-(G) (No change.) (4) Conditions and Documentation of Restraint Except Full Body Restraint. (A) (No change.) (B) A restraint, other than during a riot,
                                physical or mechanical, shall be terminated within 15 minutes unless the youth is exhibiting or threatening to continue behaviors which justify the use of restraint. If continued restraint is justified, restraint must be terminated when the youth's behavior ceases to pose a threat or, if used during transportation, when the destination is reached. (C) Plastic cuffs may be used only in riot circumstances and only in compliance with GOP.67.25, s91.75 of this title (relating to Riot Control). (D)
                                  [(C)] Use of restraint except during transportation shall not be employed for more than 30 minutes without the approval of the program administrator or his designee. The program administrator or his designee must document a justification for continued restraint every 30 minutes until termination of restraint. (E)
                                    [(D)] All incidents involving the use of force are reported on the Incident Report, CCF-225, which must be completed by the employee using force no later than the conclusion of the shift. The facility administrator reviews the restraint report section of the Incident Report of all incidents involving the use of force. (5) (No change.) sec.91.63. Mechanical Restraint Equipment. (a) (No change.) (b) Rules. (1)-(2) (No change.) (3) Approved Equipment. The following restraint devices are approved for use by TYC staff. All other devices are specifically disapproved. (A) Handcuffs-Metal [(not plastic)] devices fastened around the wrist to: restrain free movement of the hands and arms. (B)-(D) (No change.) (E) Plastic Cuffs-Plastic devices fastened around the wrist or legs to restrain free movement of hands, arms or legs. Use is authorized only in case of riot. See GOP.67.25, sec.91.75 of this title (relating to Riot Control). (F)
                                      [(E)] Belts-A cloth or leather band fastened around the waist. The belt is used to secure the arms to the sides of the body. (G)
                                        [(F)] Padlocks or Key Locks-Locks used to secure handcuffs, wristlets, anklets and ankle cuffs. (H)
                                          [(G)] Mittens-A cloth, plastic, foam rubber, or leather hand covering fastened around the wrist or lower arm. Acceptable fasteners include elastic, Velcro, ties, paper tape, pull strings. (I)
                                            [(H)] Helmets-A plastic, foam rubber, or leather head covering. If appropriate, a face guard may be attached to the helmet. The device must be proper size for the youth, and the chin strap should not be so tight as to interfere with circulation. (J)
                                              [(I)] Shield-A plastic shield normally identified as riot shields equipped with handles or holding straps. [(J) Emergency Response Belt-An approved cloth strap used to restrain some portion of the body. It may not be used around the head from the rear. Only those certified in its use may use the belt.] 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 18, 1994. TRD-9434904 Steve Robinson Executive Director Texas Youth Commission Earliest possible date of adoption: February 28, 1994 For further information, please call: (512) 483-5244 37 TAC sec.91.67 The Texas Youth Commission (TYC) proposes an amendment to sec.91.67, concerning isolation. The amendment allows physical removal of a youth from a regular institutional or Evins Regional Juvenile Center program or from contact with other youth by confinement alone when the youth is out of control and is a serious and immediate physical danger to himself or herself or others. John Franks, director, Fiscal Affairs, 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. Franks 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 safer environment for TYC youth and staff. 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 Gail Graham, Policy and Manuals Coordinator, Texas Youth Commission, 4900 North Lamar Boulevard, P.O. Box 4260, Austin, Texas 78765. The amendment is proposed under Human Resources Code, sec.61.034, which provides the Texas Youth Commission with the authority to make rules appropriate to the proper accomplishment of its functions. The proposed rule implements Human Resource Code, sec.1.034. sec.91.67. Isolation [in Security]. (a) Policy. Isolation refers to any physical removal of a youth from the regular institutional or Evins Regional Juvenile Center
                                                [security] program or from contact with other youth by confinement alone in a locked room or cubicle in a security unit prior to admission or in a location other than the security unit
                                                  . Isolation does not include the period of time during normal sleeping hours when doors are normally locked. (b) Rules. (1) Admission. (A) A youth confined in an institution or Evins Regional Juvenile Center
                                                    may be confined in isolation [in the security unit,] in cases when the youth is out of control and is a serious and immediate physical danger to himself or herself or others, and only after less restrictive methods of restraint have failed. (B) Isolation may be imposed only with the approval of the superintendent, or the Evins Regional Juvenile Center Facility Administrator, or the administrative duty officer
                                                      [or acting superintendent]. (2) Release. (A) A youth placed in isolation is released within three hours or is referred to the security unit
                                                        [joined by a staff member who remains with the youth, even during normal sleeping hours, until he is released from isolation.] (B) As soon as a youth is sufficiently under control so as to no longer pose a serious and immediate danger to himself or others, he is released from isolation immediately. [(3) Extended Stay. The extended stay in security hearing described in the security policy must be held in order to keep a youth in isolation longer than 24 hours, including normal sleeping hours, and held again every 24-hour period thereafter.] (3)
                                                          [(4) Isolation Requirements. (A) Youth placed in isolation
                                                            [security] who are on suicide alert are visually checked by staff in accordance with recommendations by the mental health professional placing the youth on suicide alert and in any case,
                                                              no less frequently than every ten minutes. All other youth in isolation
                                                                [security] are visually checked by staff at least every 15 minutes. [All services and administrative requirements listed in GOP.67.15 (sec.91.65(b)(4) of this title (relating to Security Unit) are afforded youth placed in isolation except for educational services and daily large muscle exercise.] [(B) Youth in security are visited at least once each day by the superintendent or acting superintendent and by personnel from the psychology and medical departments.] (B)
                                                                  [(C)] During isolation
                                                                    [any period of time in which youth are locked in their rooms in security during normal sleeping hours, ] a supervisor visits the youth
                                                                      [security area] at least once each hour (unless exceptional and unusual duties prohibit such visits) and shall make an entry into the daily dorm
                                                                        log recording each such visit. (C)
                                                                          [(D)] Youth in isolation
                                                                            [security] receive appropriate psychological and medical services. (D)
                                                                              [(E)] On release,
                                                                                youth in isolation
                                                                                  [security] receive the same food including snacks prepared in the same manner as for other youth except as special diets may be prescribed on an individual basis by medical personnel. [(F) Youth in security receive educational services. Academic assignments are expected to be completed on all school days by youth enrolled in academic classes; any youth not enrolled in an educational program or only involved in vocational shop activities may be given leisure reading or letter writing assignments in lieu of completing academic class assignments.] [(G) Youth in security receive two periods of supervised large muscle activity daily.] (4)
                                                                                    [(5)] Documentation. Permanent log(s) are maintained stating the name of the person who authorized confinement [or security, the superintendent or acting superintendent's daily approval of the placement,] the names and times of the persons who visited the youth while so confined, and the date and time of the youth's placement into [security or] isolation and release from isolation
                                                                                      . [All documentation requirements described in GOP.67.15 ( s91.65 of this title (relating to Security Unit)) documentation section apply for youth placed in isolation.] 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 18, 1994. TRD-9434905 Steve Robinson Executive Director Texas Youth Commission Earliest possible date of adoption: February 28, 1994 For further information, please call: (512) 483-5244 Part VI. Texas Department of Criminal Justice Chapter 152. General Allocation Provisions Subchapter C. Maximum Capacity of the Institutional Division 37 TAC sec.152.12 The Texas Department of Criminal Justice proposes an amendment to sec.152. 12, concerning the maximum unit capacity of the Institutional Division. The amendment is permitted by Chapter 499, Subchapter E, Government Code, and by the Final Judgment in Ruiz v.
                                                                                        Collins CN. H-78-987 (Southern District of Texas, Houston Division), which appeared in Volume 17,
                                                                                          Texas Register page 8269 (November 27, 1992). The effect of the proposed amendment is to allow the Institutional Division to increase unit capacities by constructing permanent additions to the units as set out in Section XIII.D.5. of the Final Judgment. Section XIII.D.5. is referenced in the existing rule, sec.152.12(b),but that reference would only allow increases in the population at the units listed in the subsection. The proposed amendment will allow increases at newer facilities by adding a new subsection (h). Staff finds and recommendations under Chapter 499, Subchapter E, Government Code, were initiated by staff and, when completed, will be published in a supplemental posting, as will the cost determination of the Legislative Budget Board under the Government Code, sec.499.102(b). The staff recommendation will also lead to notice to inmates and opportunity for comment under the Government Code, sec.499.103. David P. McNutt, assistant director for budget and management services of the Department of Criminal Justice, has determined that the effect on state government for the first five-year period of operations will be as follows. The amendment would allow a maximum increase in prison beds of 10,800, with an estimated combined cost for construction and start-up of $151,920,000, to be funded through a combination of general obligation bonds and existing general revenue. Operational costs for the next five year period are as follows: $0 in 1994; $78,137,610 in 1995; $80,361,510 in 1996; $80.361,510 in 1997; and $80, 361,510 in 1998. Mr. McNutt has further determined that the effect on local government for the next five-year period cannot be determined with certainty. While the increased in population in the institutional division will reduce the number of inmates awaiting transfer held in county jails, the magnitude and duration of the impact cannot be accurately ascertained, given the importance of parole releases to the population dynamics of the system. Savings to the state in payments to counties, therefore, cannot be accurately ascertained either. Mr. McNutt has further determined that the implementation of this amendment will have no effect on small businesses, as they will not have to comply with the rule. Mr. McNutt also has determined that compliance with this amendment will not impose any economic costs on individuals, as no individuals have a duty to comply. David P. McNutt has further determined that benefit to the general public for the last four years of the next five-year period, when the facilities are operational, will be the public safety benefit of continued confinement of felony offenders in facilities operated by the state. Comments should be directed to Carl V. Reynolds, General Counsel, Texas Department of Criminal Justice, P.O. Box 13084, Austin, Texas 78711. Written comments from the general public should be received within 30 days of the publication of this proposed amendment. The amendment is proposed under Chapter 499, Subchapter E, Government Code. In conformity with that statute, the proposed amendment cannot be adopted by the Board of Criminal Justice without the approval of the governor and the attorney general. sec.152.12. Methodology for Changing the Maximum System Population. (a)-(g)(No change.) (h) Increases in the population of existing units and units under construction may be accomplished in conformity with the requirements of Section XIII.D.5. of the Final Judgment. The total increase in beds under this subsection shall be limited to 10,800 beds, and the maximum increase at individual units shall be: 600 beds at 2,250-bed prototype units; and 300 beds at 1,000-bed prototype units. This subsection apples only to units other than those listed in subsection (b) of this section. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 20, 1994. TRD-9435052 Carl Reynolds General Counsel Texas Board of Criminal Justice Earliest possible date of adoption: February 28, 1994 For further information, please call: (512) 475-9693 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 90. Nursing Facilities and Related Institutions Subchapter C. Standards for Licensure 40 TAC sec.90.42 The Texas Department of Human Services (DHS) proposes an amendment to sec.90.42, concerning standards for facilities serving persons with mental retardation or related conditions, in its Nursing Facilities and Related Institutions rule chapter. The purpose for the amendment is to comply with the Health and Safety Code, Title 4, Chapter 250, which bars persons from employment in most facilities and agencies providing care to the aged and persons with disabilities if those persons have been convicted of certain crimes. Effective September 1, 1993, DHS assumed responsibility for conducting background checks on persons who would be employed in activities requiring direct contact with consumers of the facility. Burton F. Raiford, commissioner, 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. Raiford also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be an effective means of screening potential employees of facilities serving the aged and persons with disabilities to ensure they are not barred from employment because of certain criminal offenses. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the proposed section. Questions about the content of the proposal may be directed to Maxcine Tomlinson at (512) 450-3169 in DHS's Institutional Policy Section. Comments on the proposal may be submitted to Nancy Murphy, Agency Liaison, Policy and Document Support-335, Texas Department of Human Services W-402, P.O. Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the Texas Register. The amendment is proposed under the Health and Safety Code, Chapter 242, which provides the department with the authority to license long-term care nursing facilities; under Texas Civil Statutes, Article 4413 (502), historical note (Vernon Supplement 1993), 72nd Legislature, which transferred all functions, programs, and activities related to long-term care licensing, certification, and surveys from the Texas Department of Health to the Texas Department of Human Services; and the Health and Safety Code, Title 4, Chapter 250, which requires the department to perform criminal history checks on persons employed by certain types of facilities. The amendment implement the Health and Safety Code, Title 4, Chapter 250. sec.90.42. Standards for Facilities Serving Persons with Mental Retardation or Related Conditions. (a)-(c) (No change.) (d) Precertification training conference for new providers of service. Each new provider must attend the precertification/prelicensure training conference prior to licensing by the Texas Department of Human Services (DHS)
                                                                                            [Texas Department of Health (department)]. The purpose of the training is to assure that providers of services are familiar with the licensing requirements and to facilitate the delivery of quality services to residents in facilities serving persons with mental retardation or related conditions. (1)-(2) (No change.) (3) Each new provider will be given a training schedule. DHS
                                                                                              [The department] will schedule training sessions, and the date, time, and location of the training will be indicated on the schedule. (e) Additional requirements. (1) The facility must develop and implement policies and procedures regarding injuries, accidents, and unusual incidents which involve or affect residents. These policies and procedures shall include the following provisions. (A) An investigation and report shall be completed which describes the circumstances of the injury, accident, or incident and its cause, the results of the investigation, and recommended actions. Serious injuries, accidents, or unusual incidents shall be reported to the resident's responsible parties and to DHS
                                                                                                [the department]. (B) (No change.) (C) In the area of criminal history checks, the provider or facility must comply with the Health and Safety Code, Title 4, Chapter 250, which requires DHS to perform criminal history checks on persons employed by certain types of facilities. (2)-(5) (No change.) (6) In the area of administration of medication, the following applies. (A) Medications may be administered only by physicians, licensed nursing personnel, permitted medication aides, or persons who are exempt from licensure or permit requirements pursuant to the Health and Safety Code, sec.242.1511. These persons must function in accordance with the memorandum of understanding (MOU) between DHS
                                                                                                  [the Texas Department of Health] and the Board of Nurse Examiners and/or Board of Vocational Nurse Examiners. DHS
                                                                                                    [The department] adopts the MOU by reference and copies are available for review at DHS's
                                                                                                      [the department's] Long-Term Care Regulatory, 8407 Wall Street, Austin, Texas 78754. (i)-(ii) (No change.) (B)-(C) (No change.) (7)-(8) (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 24, 1994. TRD-9435091 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Proposed date of adoption: April 1, 1994 For further information, please call: (512) 450-3765