ADOPTED RULES An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 1. ADMINISTRATION Part IV. Office of the Secretary of State Chapter 71. Office of the Secretary of State Private Use of the State Seal of Texas 1 TAC sec.sec.71.40-71.42, 71.45, 71.46, 71.48, 71.50 The Office of the Secretary of State adopts amendments to sec.sec.71.40-71. 42, 71.45, 71.46, 71.48, and new 71.50, concerning the private use of the state seal of Texas. Sections 71.41, 71.42, 71.45, 71.46, and 71.48 are adopted without changes, and will not be republished. Sections 71.40 and 71.50 are adopted with changes to the proposed text as published in the November 2, 1993, issue of the Texas Register (18 TexReg 7897). Section 71.40 is adopted with two changes. One change adds certain exemptions to the definition of commercial purpose. The other change includes the term "state arms" in the definition of state seal of Texas. In addition, sec.71.50 is adopted with one change. Section 71.50 adopts the standard designs for the state seal and the state arms. The standard design for the reverse of the state seal is not adopted at this time. Adoption of the amendments and new rule will implement legislative changes made by the 73rd Legislative Session(1993) and make rules consistent with existing law and procedure. Comments were received from two commenters. The following is a summary of the comments. One commenter objected to the use of Texas in the term "state seal of Texas" and suggested that "Texas" be deleted in the rules. This Office believes that including Texas in the definition adds clarification to the rules. Consequently, the agency declines to delete "Texas" from the term "state seal of Texas". The commenter also suggested that the definition of commercial purpose be amended to include certain exemptions stated in House Bill 1463, enacted by the 73rd Legislative Session(1993). This commenter also suggested that the definition of the state seal include the state arms. The agency agreed with the commenter and included these in the changes to sec.71.40. The commenter proposed that the exemptions being added in sec.71.40 also be reflected in sec.71.42. The agency disagrees with this proposal and adopts sec.71.42 without change. Section 71.42 addresses the responsibilities of a manufacturer and/or vendor in the production of a product which is produced for distribution and uses the state seal of Texas. The exemptions mentioned pertain to the use of the state seal of Texas for historical, educational, or newsworthy purposes. Typical examples include the use in books and magazines as well as television and motion picture productions. As the manufacture of a product is not involved in such exemptions, the exemptions need not be addressed in sec.71.42. A second commenter submitted information that indicated the cannon depicted as the cannon of the Battle of Gonzales may be an incorrect illustration. Accordingly, sec.71.50 is adopted with one change. The standard design for the reverse of the state seal will not be adopted until further study is concluded. The rules are adopted under the Texas Government Code, sec.2001.004(1) and the Texas Business and Commerce Code, sec.17.08, which provide the secretary of state with the authority to prescribe and adopt rules. The new rule implements Texas Civil Statutes, Article 6139f(d). The new rule and amendments affect the Business and Commerce Code, sec.17.08. sec.71.40. Definitions. The following words and terms, when used in this undesignated head, shall have the following meanings, unless the context clearly indicates otherwise, unless otherwise expressly provided, the past, present, or future tense includes the other; the masculine, feminine, or neuter gender each includes the other; and the singular and plural number each includes the other. Abuse-Any departure from reasonable use: immoderate or improper use; use contrary to customary or accepted practices and protocols such as would be a misuse of the state seal of Texas. Annual gross receipts-Gross receipts received during the calendar year. Applicant-A person who has applied for license. Application-The act of making a formal request for licensed permission to use the state seal of Texas. Benefit-Anything reasonably regarded as an economic gain or an economic advantage. Calendar year-Period of time from January 1st to December 31st, inclusive. Commercial purpose - purpose that is intended to result in a profit or other tangible benefit but does not include: (A) an official use in a state function or the use of the state seal of Texas or a representation of the state seal of Texas for a political purpose by an elected official of this state; (B) the use of the state seal of Texas or a representation of the state seal of Texas in an encyclopedia, dictionary, book, journal, pamphlet, periodical, magazine, or newspaper incident to a description or history of seals, coats of arms, heraldry, or the state of Texas; (C) the use of the state seal of Texas or a representation of the state seal of Texas in a library, museum, or educational facility incident to descriptions or exhibits relating to seals, coats of arms, heraldry, or the state of Texas; (D) the use of the state seal of Texas or a representation of the state seal of Texas in a theatrical, motion-picture, television or similar production for a historical, educational, or newsworthy purpose; or (E) the use of the state seal of Texas or a representation of the state seal of Texas for another historical, educational, or newsworthy purpose if authorized in writing by the secretary of state. Denial-A refusal to rant a license. Elected official -Any individual who has been elected to an office of state government which is filled by the choice of the voters, which including a member of the legislature. General public -Any person of any nation, state, county, municipality, or community including individuals who are employed by the State of Texas. Gross receipts -Total amount of money or the value of the benefits received from the sale of licensed products. License-Permission by the secretary of state to conduct the use, manufacture, distribution, mass production, replication, sale or incorporation into advertisement, draft, or design the state seal of Texas within the accepted criteria of this title. Licensed product -A state seal of Texas product which has been approved by a license. Licensee-The applicant who receives permission to use the state seal of Texas. Manufacturer-Any individual, partnership, corporation, or other legal entity which transforms raw or prepared materials into a product for trade or sale, including a publisher, printer, or advertiser. Nonexact representation -A deceptively similar representation of the state seal of Texas, including a state agency's seal which incorporates the state seal of Texas. Nonofficial use -Any use of the state seal of Texas that is not an official use. Official use-The use of the state seal of Texas by an officer or employee of this state in performing a state function. Person-An individual or legal entity, including a corporation, partnership, or an association. Political purpose -Any purpose designed to obtain or publicize a public office or position. Product-A good or service produced, manufactured, or provided, either by natural means, by hand, or with tools, machinery, chemicals, or the like. Representation of the state seal of Texas -Includes a nonexact representation that the secretary of state determines is deceptively similar to the state seal of Texas. Reverse side of the state seal of Texas-Comprised of a shield, consisting of a depiction of the Alamo, the cannon of the Battle of Gonzales, and Vince's Bridge. The shield is encircled by live oak and olive branches, and the unfurled flags of the kingdom of France, the kingdom of Spain, the United Mexican States, the Republic of Texas, the Confederate States of America, and the United States of America. Above the shield is emblazoned the motto, "Remember the Alamo," and beneath it are the words, "Texas one and indivisible," with hanging over the shield, centered between the flags. Revocation-An unconditional cancellation and nullification of an existing license by the Office of the Secretary of the State of Texas. State agency-Any administrative department, or commission established by the State of Texas Constitution, the governor, or the Texas Legislature. State arms-Comprised of a white star of ground, encircled by olive and live oak branches. State function -A sate governmental activity authorized or required by law. State seal of Texas-A seal which: (A) contains a five-point star encircled by olive and live oak branches, and the words "the State of Texas,"; or (B) depicts the reverse side of the state seal of Texas; or (C) portrays the state arms. Statute-Texas Business and Commerce Code, sec.17.08. Suspension-A temporary stop order to previously licensed uses. sec.71.50. Standard Designs. The following illustrations depict the standard designs for the state seal and the state arms. [graphic] This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 24, 1994. TRD-9435125 Audrey Selden Assistant Secretary of State Office of the Secretary of State Effective date: February 14, 1994 Proposal publication date: November 2, 1993 For further information, please call: (512) 463-5570 Part V. General Services Commission Chapter 111. Executive Administration Division Administration 1 TAC sec.111.2 The General Services Commission adopts new sec.111.2, concerning definitions, without changes to the proposed text as published in the November 2, 1993, issue of the Texas Register (18 TexReg 7901). The new section states definitions for words and terms that pertain generally to the activities of the commission. The section is a restatement in simpler and clearer language of definitions that were previously contained in sec.113.2 pertaining to the commission's central purchasing division. No comments were received regarding adoption of the new section. The new section is adopted under Texas Civil Statutes, Article 601b, which provide the General Services Commission with the authority to promulgate rules necessary to accomplish the purpose of the Article. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 25, 1994. TRD-9435218 Judith M. Porras General Counsel General Services Commission Effective date: February 16, 1994 Proposal publication date: November 2, 1993 For further information, please call: (512) 463-3583 Chapter 113. Central Purchasing Division Purchasing 1 TAC sec.113.2, sec.113.6 The General Services Commission adopts amendments to sec.113.2, concerning definitions and sec.113.6 concerning bid evaluation and award, without changes to the proposed text as published in the November 2, 1993, issue of the Texas Register (18 TexReg 7902). The amendment to sec.113.2 adds definitions for terms relating to recycling in order to assist state agencies in achieving statutorily mandated goals for the procurement of products with recycled material content, remanufactured products, and environmentally sensitive products. The amendment to sec.113.6 permits the commission to resolve tie bids by drawing lots. Rule sec.113.2 provides definitions for terms relating to the purchase of recycled, remanufactured and environmentally sensitive products. Rule sec.113.6 allows the commission to resolve tie bids by drawing lots. No comments were received regarding adoption of the amendments. The amendments are adopted under Texas Civil Statutes, Articles 601b, sec.3. 01 and sec.3.33, which provide the General Services Commission with the authority to promulgate rules necessary to accomplish the purpose of Article 3. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 25, 1994. TRD-9435219 Judith M. Porras General Counsel General Services Commission Effective date: February 16, 1994 Proposal publication date: November 2, 1993 For further information, please call: (512) 463-3583 Purchasing 1 TAC sec.113.7 The General Services Commission adopts an amendment to sec.113.7, concerning Competitive Sealed Proposals, without changes to the proposed text as published in the September 14, 1993, issue of the Texas Register (18 TexReg 6161). The amendment is necessary to implement House Bill 2626, sec.12, 73rd Legislature, which amends Texas Civil Statutes, Article 601b, by adding sec.3. 0221, pertaining to competitive sealed proposals. The amendment sets forth procedures to be followed when making purchases by means of competitive sealed proposals of supplies, material or equipment that cost $1 million or more, or routine services that cost $100,000 or more. One comment on the proposed amendment was received. The commenter objected to the prohibition against other agencies using the procedure; observed that "competitive sealed proposals" is not defined; suggested that the criteria for evaluating competitive bids set forth in Texas Civil Statutes, Article 601b, sec.3.11(e) make it very difficult to conduct competitive bidding without holding discussions with offerors, and therefore the distinction between competitive bidding and competitive sealed proposals is not significant. The commenter also stated that: it is unrealistic to require complex service requirements to be so completely defined as to make interaction with bidders unnecessary; agencies might function more effectively if they were free to use competitive sealed proposals to distinguish between offerors; the procurement process should be based primarily on the nature of the requirement, and the dollar thresholds appear arbitrary; and the requirement of obtaining commission approval of purchases in open meeting is unnecessarily restrictive. Texas National Research Laboratory Commission commented against the proposed amendment. The agency does not agree that the rules should allow other agencies to utilize the competitive sealed proposals procedure for the purchases in question because that is expressly forbidden by the statute. The agency also disagrees that the requirement of obtaining commission approval in open meeting is unnecessarily restrictive; this too is required by statute. The agency does not agree that a definition is required for "competitive sealed proposals" because the process is adequately described in the statute as well as in rules already in effect. The agency does not agree that there is no significant difference between competitive bidding and competitive sealed proposals; the two procedures are legally distinct. The amendment is adopted under Texas Civil Statutes, Article 601b, Article 3, which provide the General Services Commission with the authority to promulgate rules necessary to accomplish the purposes of the Article. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 25, 1994. TRD-9435226 Judith M. Porras General Counsel General Services Commission Effective date: February 16, 1994 Proposal publication date: September 14, 1993 For further information, please call: (512) 463-3583 1 TAC sec.113.11 The General Services Commission adopts an amendment to sec.113.11, concerning delegated purchases, without changes to the proposed text as published in the October 5, 1993, issue of the Texas Register (18 TexReg 6779). The amendment to sec.113.11 increases the limit for spot purchases from $10, 000 to $15,000 and changes "disadvantaged businesses" to "historically underutilized businesses". The amendment clarifies the scope of spot purchases and emergency purchases that are delegated to state agencies. One comment was received supporting the delegated purchase limit from $10, 000 to $15,000. Comments for the section were received from The University of Texas at Arlington. The amendment is adopted under Texas Civil Statutes, Article 60lb, sec.3.01, which provide the General Services Commission with the authority to promulgate rules necessary to accomplish the purpose of Article 3. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 25, 1994. TRD-9435224 Judith M. Porras General Counsel General Services Commission Effective date: February 16, 1994 Proposal publication date: October 5, 1993 For further information, please call: (512) 463-3583 1 TAC sec.113.19 The General Services Commission adopts an amendment to sec.113.19, concerning the catalogue purchase procedure for automated information systems, without changes to the proposed text as published in the November 2, 1993, issue of the Texas Register (18 TexReg 7902). The amendment to ensures compliance with federal requirements so that pending purchases necessary to provide federally funded human and protective services may be completed on time. The amendment provides a protest procedure for federally funded catalogue purchases. Two written comments were received. One commenter questioned the need for a new protest procedure since existing rule 111.3 establishes a procedure for other bid protests, and pointed out the difference between the proposed procedure and the procedure of sec.111.3 in that a fee may be required for the new procedure. The commenter suggested that the imposition of a fee may be an impediment to protests. The second comment expressed the opinion that the proposed procedure should satisfy federal concerns and recommended its adoption. The Texas Department of Human Services commented in favor of the proposed amendment. EDS commented against the proposed amendment. The agency disagrees that existing rule 111.3 provides a procedure for catalogue purchase protests. Catalogue purchasing decisions are the exclusive responsibility of the agency making the purchase. The catalogue procedure is different from the procedures reviewed under sec.111.3, and the agency believes an independent review of the matter is appropriate. Since no state agency has been funded for the work that may be required under the catalogue protest procedure, which is required by federal funding agencies, the costs of the process must be borne either by the state agency involved or by the protestant. The agency chose to permit recovery of costs from the protestant. Reasonable cost recovery fees should not impede legitimate protests. The amendment is proposed under Texas Civil Statutes, Article 601b, sec.3.081, which provide the General Services Commission with the authority to promulgate rules necessary to accomplish the purpose of the section. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 25, 1994. TRD-9435221 Judith Porras General Counsel General Services Commission Effective date: February 16, 1994 Proposal publication date: November 2, 1993 For further information, please call: (512) 463-3583 Chapter 117. Centralized Services Division Central Store 1 TAC sec.117.51 The General Services Commission adopts an amendment to sec.117.51, concerning central supply store operations, without changes to the proposed text as published in the November 2, 1993, issue of the Texas Register (18 TexReg 7903). The amendment to sec.117.51 specifies the nature of central supply store operations and the responsibilities of user state agencies. The amendment streamlines and consolidates existing rules, and outlines the scope of central supply store operations for governmental entities. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 601b, Article 11, which provide the General Services Commission with the authority to promulgate rules to accomplish the purpose of the Article. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 25, 1994. TRD-9435222 Judith Porras General Counsel General Services Commission Effective date: February 16, 1994 Proposal publication date: November 2, 1993 For further information, please call: (512) 463-3583 Central Store 1 TAC sec.sec.117.52-117.57 The General Services Commission adopts the repeal of sec. sec.117.52-117.57, concerning central supply store operations, without changes to the proposed text as published in the November 2, 1993, issue of the Texas Register (18 TexReg 7903). The repeal will consolidate existing rules. The significant content of these repealed sections is to be consolidated into amended sec.117.51. The repeal of sec.sec.117.52-117.57 will delete burdensome language. No comments were received regarding adoption of the repeals. The repeals are adopted under Texas Civil Statutes, Article 601b, Article 11, which provide the General Services Commission with the authority to promulgate rules to accomplish the purpose of that Article. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 25, 1994. TRD-9435223 Judith M. Porras General Counsel General Services Commission Effective date: February 16, 1994 Proposal publication date: November 2, 1993 For further information, please call: (512) 463-3583 TITLE 4. AGRICULTURE Part I. Texas Department of Agriculture Chapter 3. Boll Weevil Eradication Program 4 TAC sec.sec.3.50-3.57 The Texas Department of Agriculture (the department) adopts new sec.sec.3. 50- 3.57, concerning the prohibition of planting of cotton in boll weevil eradication zones and the requirement for participating in the boll weevil eradication program established by the Texas Boll Weevil Eradication Foundation (the foundation). Section 3.52 and sec.3.56 are adopted with changes to the proposed text as published in the November 26, 1993, issue of the Texas Register (19 TexReg 167). Sections 3.50-3.51, 3.53-3.55, and 3.57 are adopted without changes and will not be republished. The new sections are adopted to carry out the authority provided the department in the Agriculture Code, sec.74.118, and to carry out the intent of the 73rd Legislature in furthering the successful implementation of the boll weevil eradication program. Section 3.52(a) has been changed to clarify that the department will act upon request of the foundation to designate prohibited areas. Section 3.56(d) has been changed to provide for notice to known lenders of a violation and to clarify that the department will act to enforce compliance upon notice by the foundation that a violation has occurred. New sec.3.50 and sec.3.51 provide a statement of authority and purpose and definitions. New sec.3.52 provides for the prohibition of planting of commercial and non- commercial cotton. New sec.3.53 provides for public notices of prohibitions. New sec.3.54 provides requirements for participation in the boll weevil eradication program. New sec.3.55 provides for public notice of participating requirements. New sec.3.56 provides for penalties for failure to comply with the new sections and procedures to be followed by the department when a violation requires the destruction of cotton. New sec.3.57 provides for an appeal of a penalty assessed by the department under these rules. The new sections are adopted under the Texas Agriculture Code, sec.74.118, which provides the department with the authority to adopt rules prohibiting the growing of cotton in eradication zones, requiring participation in the boll weevil eradication program, and establishing penalties for failure to comply with such rules. sec.3.52. Prohibition of Planting of Commercial and Non-Commercial Cotton. (a) Commercial cotton shall not be planted in any area within an eradication zone where upon request of the foundation the department has determined that the location of that cotton would jeopardize the success of the eradication program in that zone or present a hazard to public health and safety. Such an area shall be designated by the department as a prohibited planting area. (b) In making a determination as to whether or not planting of commercial cotton shall be prohibited in an area, the department may consider the factors listed in sec.3.23 of this title (relating to Protection of Individuals Livestock, Wildlife, and Honeybee Colonies) and sec.3.24 of this title (relating to Guidelines for Establishment of Foundation Rules, Procedures and Methods of Treatment), and the recommendation of the foundation board. (c) Non commercial cotton shall not be planted in any eradication zone, except under a special permit issued by the department prior to planting. sec.3.56. Assessment of Penalties; Destruction of Cotton. (a) Each cotton grower in an eradication zone shall comply with the requirements of sec.3.54 of this title (relating to Requirement for Program Participation). Upon notification to the department by the foundation that a violation has occurred, a grower who violates those requirements shall be assessed a penalty. (b) For a violation of sec.3.54(b)(1) which requires reporting of acreage, a grower shall be assessed a penalty in the amount of $25 per acre. (c) For a violation of sec.3.54(b)(2) which requires payment of the assessment established by the foundation, a grower shall be assessed a penalty in the amount of $25 acre. (d) Upon notice by the foundation that a grower has failed to comply with a prohibition notice provided in accordance with sec.3.53 of this title (relating Notice of Prohibitions), or the prohibition against the growing of non- commercial cotton, the department shall take the following actions: (1) immediately upon identification of a field that is out of compliance with a notice of prohibition, the department shall give writing notice to any farm owner and to the operator in charge of the field and it known, any lender having an interest in the field or cotton that the field and any cotton growing in the field is in violation of these rules, instructing the owner and operator to destroy any cotton within seven days after the date the written notice received; (2) if the owner or operator cannot be located after reasonably diligent effort has been made by the department to locate such persons, the department shall publish the notice in a newspaper of general circulation in the county in which the land is located and post for a period of three consecutive days a copy of the notice on or in the immediate vicinity of the field in violation; and (3) if not response is received by the department from either the owner or operator within four days after the date of posting of the notice at the field, or if the department considers the response inadequate, the department shall have the cotton destroyed. (e) The department may take any other action necessary to complete destruction of cotton to prevent the spread of boll weevils from the infested area. (f) All costs incurred by the department in the destruction of the cotton in accordance with subsection (d) of this section shall be reimbursed by the grower. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 25, 1994. TRD-9435205 Dolores Alvarado Hibbs Chief Administrative Law Judge Texas Department of Agriculture Effective date: February 14, 1994 Proposal publication date: November 26, 1993 For further information, please call: (512) 463-7583 TITLE 19. EDUCATION Part II. Texas Education Agency Chapter 61. School Districts Subchapter H. School Facilities Standards 19 TAC sec.sec.61.101-61.104 (Editor's Note: In the January 14, 1994, issue of the Texas Register (19 TexReg 265), the Texas Education Agency (TEA) adopted new sec. sec.61.101-61.104, concerning school facilities standards, with changes to the proposed text as published in the September 24, 1993, issue of the Texas Register (18 TexReg 6509). The public comments section of the preamble was incomplete. The following comments were received regarding adoption of the rules.) Comment. Concerning sec.61.101(a), a commentator recommended clarifying that the subsection includes not only definitions, but also terms and procedures. Agency response. The agency agreed to make the change. Comment. Concerning sec.61.101(a)(4), a commentator recommended clarifying the definition of the term "environmental concerns" and deleting subparagraphs (A) and (B) listing types of environmental conditions and site acquisition information. Agency response. The agency disagreed with the process of information delivery, but agreed that the information received would add economic burdens on some districts. Therefore, the agency agreed to make the recommended changes. These changes were deleted when the agency made changes recommended later during the public comment period. Comment. Concerning sec.61.101(a)(5), a commentator recommended adding the district's long-range school facility plan and educational specifications to the requirements for final design documents. Agency response. The agency agreed to make the changes. These changes were deleted when the agency made changes recommended later during the public comment period. Comment. Concerning sec.61.101(a)(8), a commentator recommended deleting the term "long-term school facility planning committee" and its definition and adding the term "school facility advisory committee" and its definition. Agency response. The agency agreed to make the changes. These changes were deleted when the agency made changes recommended later during the public comment period. Comment. Concerning sec.61.101(b), a commentator recommended changing the effective date concerning approval by a district board of trustees to September 1, 1994. Agency response. The agency agreed to make the change. Comment. Concerning sec.61.101(c), a commentator recommended that documentation of educational adequacy should include a long-range facility plan and educational specifications. Agency response. The agency agreed to make the changes. These changes were deleted when the agency made changes recommended later during the public comment period. Comment. Concerning sec.61.103, a commentator recommended defining educational adequacy as a process requiring a school district to prepare a long-range school facility plan, educational specifications, and an assessment of the district's financial resources. Agency response. The agency agreed to make the changes. These changes were deleted when the agency made changes recommended later during the public comment period. Comment. Concerning sec.61.104(b), a commentator recommended deleting some language and modifying other language relating to building code adoption in districts without existing codes. Agency response. The agency disagreed. The language as proposed adds to the strength of health and safety issues that should not be minimized. The plan review section would add quality assurances and reduce school district liability with minimum cost considerations. Comment. Concerning sec.61.102(2)(B), a commentator recommended that space requirements for a science lab should be added to the standards and that a combined lecture/lab be increased in size to provide safer science conditions in public schools. Agency response. The agency agreed with the desire to provide safer space in all public schools and will, at the earliest time, incorporate the recommended increases in space requirements. Comment. Concerning sec.61.103, a commentator objected to the establishment of mandates without state funding to pay for expenses associated with long-range planning and the development of educational specifications. Agency response. The agency disagreed with the commentator's premise. The state legislature directed TEA to establish standards for all school facilities constructed after September 1, 1992, and those facilities must meet the standards in order to be financed with state or local tax funds. Comment. Concerning sec.sec.61.101-61.104, comments were received approving and endorsing revised language that deletes the process activities at the local district level as directed by the State Board of Education. Agency response. In addition to changes made as a result of comments received, the agency made minor editorial changes for clarification purposes to sec.61.101(a)(1)(c), 61.101(a)(2), 61.101(a)(6), 61.101(b), 61.101(c), 61. 103(b), and 61.103(c). Comments were received from Austin ISD; Tuluso-Midway ISD; Calhoun County ISD; the Texas Association of School Boards; the Texas Association of School Administrators; Southwest Texas University; Henslee, Ryan, Groce Attorneys; and Ferrell/Brown and Associates. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 10, 1994. TRD-9434450 Criss Cloudt Associate Commissioner, Policy Planning and Evaluation Texas Education Agency Effective date: January 31, 1994 Proposal publication date: For further information, please call: (512) 463-9701 TITLE 22. EXAMINING BOARDS Part X. Texas Funeral Service Commission Chapter 201. Licensing and Enforcements-Practice and Procedure 22 TAC sec.201.14, sec.201.15 The Texas Funeral Service Commission adopts new sec.201.14 and sec.201.15 without changes to the proposed text as published in the December 7, 1993, issue of the Texas Register (18 TexReg 4995). New sec.201.14 outlines the statutory requirements of Texas Civil Statutes, Article 4582(b), sec.4.1, which mandates the adoption of the rule in the new sec.201.15. New sec.205.15 sets out the manner in which the three agencies will coordinate their statutory responsibilities, in the area of prepaid funeral services and transactions. The new rules are designed to improve the regulation of the prepaid funeral industry and to provide more appropriate and timely responses to consumer complaints through better coordination between the three agencies. No comments were received regarding adoption of the rules. The new rules are adopted under Texas Civil Statutes, Article 4582b, sec.4.1, which provide the Texas Funeral Service Commission with the authority to enter into the mandated Joint Memorandum of Understanding with the Texas Department of Banking and the Texas Department of Insurance and to promulgate it as a rule. These rules are also adopted under the provisions of Texas Civil Statutes, Article 4582b, sec.5, which authorize the commission to adopt rules necessary to administer the Act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 24, 1994. TRD-9435124 Larry A. Farrow Executive Director Texas Funeral Service Commission Effective date: February 14, 1994 Proposal publication date: December 7, 1993 For further information, please call: (512) 834-9992 Part XVII. Texas State Board of Plumbing Examiners Chapter 363. Examinations Qualifications 22 TAC sec.363.1 The Texas State Board of Plumbing Examiners adopts an amendment to sec.363. 1, concerning qualifications, without changes to the proposed text as published in the November 26, 1993, issue of the Texas Register (18 TexReg 8744). The adoption of this amendment is justified because the public health, safety, and welfare will be enhanced by ensuring each person has access to clean water and clean air because of plumbing inspected by competent plumbing inspectors. The amendment to sec.363.1 alters the experience requirement for an individual to apply for the plumbing inspector's license. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 6243-101, which provide the Texas State Board of Plumbing Examiners with the authority to prescribe, amend, and enforce all rules necessary to carry out the Plumbing License Law. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 10, 1994. TRD-9435108 Gilbert Kissling Administrator Texas State Board of Plumbing Examiners Effective date: February 14, 1994 Proposal publication date: November 26, 1993 For further information, please call: (512) 458-2145 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 19. Long-Term Care Nursing Facility Requirements for Licensure and Medicaid Certification Subchapter I. Nursing Services The Texas Department of Human Services (DHS) adopts amendments to sec.sec.19. 804, 19.810, 19.1306, 19.1521, and 19.1912, and adopts the repeal of and new sec.19.1929, in its Long Term Care Nursing Facility Requirements rule chapter. The amendment to sec.19.810 is adopted with changes to the proposed text as published in the December 10, 1993, issue of the Texas Register (18 TexReg 9169). The amendments to sec.sec.19.804, 19.1306, 19.1521, and 19.1912, and the repeal of and new sec.19.1929 are adopted without changes to the proposed text, and will not be republished. The justification for the amendments, repeal, and new section is to allow certain health professionals to accept physicians' orders in nursing facilities in their areas of practice only, require nursing facilities' emergency disaster plans to be coordinated with local emergency management coordinators, and to delete staff development requirements which are overly prescriptive. Portions of sec.19.804 which do not directly pertain to the duties of the director of nursing services have been moved to sec.19.810, which pertains to the general practice of nursing. Section 19.1306(f) has been expanded to include other health professionals and moved to sec.19.810, a more appropriate location. Other changes are for clarity and brevity. The amendment to sec.19.1521 will enable emergency management coordinators to include nursing facilities in their planning for potential natural disasters, thereby further ensuring the safety of residents in the facilities. The new rules regarding respite care have been added to sec.19.1912(g). Section 19.1929 is amended to allow nursing facilities flexibility to determine and meet staff development needs as their unique situations require. The amendments, repeal, and new section will function by ensuring improved care for nursing facility residents. During the public comment period, DHS received comments from the State Board of Examiners for Speech-Language Pathology and Audiology. The commenter recommended that DHS change the term "certified speech pathologists" to "licensed speech- language pathologists" in sec.19.810(k)(2). DHS agrees, and is adopting the section with the recommended change. 40 TAC sec.19.804, sec.19.810 The amendments are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413 (502), sec.16, which provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendments implement the Human Resources Code, sec.sec.22. 002 and 32.001-32.040. sec.19.810. Nursing Practices. (a) Licensed nurses must practice within the constraints of applicable state laws and regulations governing their practice and must follow the guidelines contained in the facility's written policies and procedures. (b) Regarding the administration of intravenous fluids or medications, extracting blood for laboratory tests, or the insertion of a nasogastric tube, the Licensed Vocational Nurse must have been instructed and have demonstrated competence in the technique. (c) (No change.) (d) Enteral tube feedings (i. e. NG, gastrostomy, jejunostomy, etc.) shall be given in accordance with physicians' orders by a licensed nurse using established feeding procedures. (e) (No change.) (f) Urinary catheters shall be inserted/irrigated in accordance with physicians orders by licensed nurses using established procedures. (g) Monitoring of specific restraints must include observations of the resident at least every hour with changing and positioning as described in sec.19.401(a) of this title (relating to Resident Behavior and Facility Practice).. Locked restraints are not allowed, except for dutch doors which are allowed as long as the requirements in sec.19. 401 of this title (relating to Resident Behavior and Facility Practice) are met. (h) Fecal impactions must be removed by licensed nurses. (i) Suctioning must be done by certified respiratory care practitioners, licensed nurses, or physicians. (j) It is the duty of the facility nursing staff to assure that the routine reduction and/or debridement or manicure of nails on hands and feet is performed. Physician orders are not required unless the debridement is medically contraindicated. A physician's order is required for podiatric services. (k) When a licensed nurse takes a verbal or telephone order from a physician, podiatrist, or dentist, the nurse must sign the order. The facility must obtain the physician's, podiatrist's, or dentist's signature on the order and return it to the clinical record in a timely manner. (1) A licensed nurse may accept a physician's, dentist's, or podiatrist's order for the administration of medications or treatments when that order originates with one of the licensed practitioners and is merely communicated to the registered or licensed vocational nurse through another person. The nurse is required to question any order which he suspects is not correct. (2) Licensed physical therapists, licensed occupational therapists, respiratory care practitioners, qualified dietitians, and licensed speech- language pathologists may accept physician orders only within their standards of practice and when they relate directly to their field of practice. (l) Nurses must enter, or approve and sign, nurses' notes in the following instances: (1) at least monthly. Routine charting for Medicaid recipients must reflect the recipient's ability as assessed on the way he performs his activities of daily living at least 60% of the time; (2) at the time of any physical complaints, accidents, incidents, change in condition or diagnosis, and progress. All of these situations must be promptly recorded as exceptions and included in the clinical record. (m) Any significant adverse changes in the resident's physical or emotional condition must be promptly reported to the attending physician. Every attempt to make the reports and every contact made with the attending physician must be documented in the clinical record. (n) If permitted by written policies of the nursing facility, a registered nurse may determine and pronounce a person dead in situations other than when an individual is being supported by artificial means which preclude determination that the person's spontaneous respiratory and circulatory functions have ceased. The facility's nursing staff and the medical staff or consultant must have jointly developed and approved such policies. The policy must include the following points: (1) The apparent death of a resident must be reported immediately to the attending physician, relatives, and any guardian or legal representatives. (2) The body of a deceased resident must not be removed from the facility without a physician's or registered nurse's authorization. Telephone authorization is acceptable, if not in conflict with local regulations. Authorization by a justice of the peace, acting as a coroner, is sufficient when the attending or consulting physician or registered nurse is not available. (3) Any death which involves trauma, or unusual or suspicious circumstances, must be reported immediately to the authorities, in accordance with local regulations, and to the Texas Department of Human Services (DHS), in accordance with sec.19.1921(p) of this title (relating to General Requirements for a Nursing Facility). Deaths must also be reported to DHS monthly, as specified in sec.19.2001(d) of this title (relating to Licensure). This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 25, 1994. TRD-9435174 Nancy Murhpy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: March 15, 1994 Proposal publication date: December 10, 1993 For further information, please call: (512) 450-3765 Subchapter N. Pharmacy Services 40 TAC sec.19.1306 The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413 (502), sec.16, which provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendments implement the Human Resources Code, sec.sec.22. 002 and 32.001-32.040. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 25, 1994. TRD-9435175 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: March 15, 1994 Proposal publication date: December 10, 1993 For further information, please call: (512) 450-3765 Subchapter P. Physical Plant and Environment 40 TAC sec.19.1521 The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413 (502), sec.16, which provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendments implement the Human Resources Code, sec.sec.22. 002 and 32.001-32.040. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 25, 1994. TRD-9435176 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: March 15, 1994 Proposal publication date: December 10, 1993 For further information, please call: (512) 450-3765 Subchapter S. Reimbursement Methodology for Nursing Facilities 40 TAC sec.19.1802 The Texas Department of Human Services (DHS) adopts an amendment to sec.19. 1802, concerning cost reporting procedures, in its Long-Term Care Nursing Facility Requirements chapter. The amendment is adopted without changes to the proposed text as published in the December 17, 1993, issue of the Texas Register (18 TexReg 9701). The justification for the amendment is to remove inconsistencies between the penalties described in the rate-setting methodology and the penalties for administrative contract violations. The amendment will function by eliminating inconsistencies in existing rules. No comments were received regarding adoption of the amendment. The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413 (502), sec.16, which provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendment implements the Human Resources Code, sec.sec.22.001, 22.002, and 32.001-32.041. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 25, 1994. TRD-9435233 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: April 1, 1994 Proposal publication date: December 17, 1993 For further information, please call: (512) 450-3765 40 TAC sec.19.1912, sec.19.1929 The amendment and new section are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs; under Texas Civil Statutes, Article 4413 (502), sec.16, which provide the Health and Human Services Commission with the authority to administer federal medical assistance funds; and the Health and Safety Code, Chapter 242, which provides the department with the authority to regulate long term care nursing facilities. The new section and amendment implement the Human Resources Code, sec.sec.22.002 and 32.001-32.040. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 25, 1993. TRD-9435178 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: March 15, 1994 Proposal publication date: December 10, 1993 For further information, please call: (512) 450-3765 40 TAC sec.19.1929 The repeal is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413 (502), sec.16, which provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. The repeal implements the Human Resources Code, sec.sec.22.002 and 32.001-32.040. sec.19.1929. Staff Development This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 25, 1994. TRD-9435177 Nancy Murhpy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: March 15, 1994 Proposal publication date: December 10, 1993 For further information, please call: (512) 450-3765 Chapter 27. Intermediate Care Facilities for the Mentally Retarded (ICFs-MR) Subchapter D. Reimbursement Methodology 40 TAC sec.27.403 The Texas Department of Human Services (DHS) adopts an amendment to sec.27. 403, concerning cost reporting procedures, in its Intermediate Care Facilities for the Mentally Retarded (ICFs-MR) chapter. The amendment is adopted without changes to the proposed text as published in the December 17, 1993, issue of the Texas Register (18 TexReg 9701). The justification for the amendment is to remove inconsistencies between the penalties described in the rate-setting methodology and the penalties for administrative contract violations. The amendment will function by eliminating inconsistencies in existing rules. No comments were received regarding adoption of the amendment. The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413 (502), sec.16, which provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendment implements the Human Resources Code, sec.sec.22.001, 22.002, and 32.001-32.041. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 25, 1994. TRD-9435232 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: April 1, 1994 Proposal publication date: December 17, 1993 For further information, please call: (512) 450-3765 Part XIX. Texas Department of Protective and Regulatory Services Chapter 708. Medicaid Targeted Case Management Program Program Requirements 40 TAC sec.sec.708.1-708.4 The Texas Department of Protective and Regulatory Services (TDPRS) adopts new sec.sec.708.1-708.4, without changes to the proposed text as published in the December 17, 1993, issue of the Texas Register (18 TexReg 9703). The justification for the proposal is to establish the TDPRS Medicaid Targeted Case Management Program, which serves Medicaid recipients who are receiving foster care, child protective services, adoption assistance, or adult protective services. The targeted case management services include assessment, case planning, case coordination, and case plan reassessment, and are consistent with the current practice in TDPRS. The proposal will function by increasing federal funds available for TDPRS programs. No comments were received regarding adoption of the proposal. The new sections are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs; and under Texas Civil Statutes, Article 4413 (503), which transferred all functions, programs, and activities related to the child protective services program from the Texas Department of Human Services to TDPRS; and under Texas Civil Statutes, Article 4413 (502), sec.16, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. The new sections implement TDPRS's response to Senate Bill 5, General Appropriations Act, 73rd Legislature, Regular Session, Article V, sec.154 (Texas Performance Review Riders). This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 25, 1994. TRD-9435181 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Protective and Regulatory Services Effective date: February 15, 1994 Proposal publication date: December 17, 1993 For further information, please call: (512) 450-3765