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 1. ADMINISTRATION Part II. Texas Ethics Commission Chapter 20. Reporting Political Contributions and Expenditures Subchapter C. Reporting Requirements for a Candidate 1 TAC sec.20.206 The Texas Ethics Commission (the commission) proposes new sec.20.206, concerning the reporting of political contributions and expenditures by certain candidates, officeholders, and political committees. This section provides guidelines to candidate when transferring his appointment of campaign treasurer to another filing authority. It also provides for the automatic termination of a candidate's appointment of campaign treasurer with the former filing authority. Jim Mathieson, assistant general counsel, 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. Mathieson 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 better understanding of the procedure used in transferring an appointment of campaign treasurer from one filing authority to another. 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. Mr. Mathieson also has determined that this rule will have no local employment impact. Comments on the proposed rule from any member of the public are solicited. A written comment should be mailed or delivered to Jim Mathieson, Texas Ethics Commission, P.O. Box 12070, Austin, Texas 78711-2070, or by facsimile (FAX) to (512) 463-5777. A person who wants to offer spoken comments to the commission concerning the proposed rule may do so at any commission meeting during the agenda item "Communication to the Commission from the Public" and during the public comment period at a commission meeting when the commission considers final adoption of the proposed repeal of the rules. Information concerning the date, time, and location of commission meetings is available by telephoning (512) 463-5800 or, toll free in Texas, (800) 325-8506. The new section is proposed under Texas Government Code, Chapter 571, sec.571.062, which provides the commission with the authority to promulgate rules to implement laws administered and enforced by the commission. sec.20.206. Transfer of Campaign Treasurer Appointment. (a) If a candidate who has filed a campaign treasurer appointment decides to seek a different office that would require the appointment to be filed with another authority, a copy of the appointment certified by the authority with whom it was originally filed must be filed with the other authority in addition to the new campaign treasurer appointment. (b) The original appointment terminates on the filing of the copy with the appropriate authority or on the tenth day after the date the decision to seek a different office is made, whichever is earlier. 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 27, 1994. TRD-9435381 Jim Mathieson Assistant General Counsel Texas Ethics Commission Earliest possible date of adoption: March 7, 1994 For further information, please call: (512) 463-5800 Chapter 34. Conduct of Lobbyists Subchapter A. Restrictions on Lobby Expenditures 1 TAC sec.sec.34.7, 34.9, 34.11 The Texas Ethics Commission (the commission) proposes new sec.sec.34.7, 34.9, and 34.11, concerning the conduct of persons registered as lobbyists with the commission. These sections were previously adopted under sec.sec.34.9, 34.11, and 34.13 respectively. Jim Mathieson, assistant general counsel, 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. Mathieson 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 better understanding of the commission's organization and operational structure and the administrative procedures and requirements it has established to carry out its obligations under the law. 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. Mr. Mathieson also has determined that these rules will have no local employment impact. Comments on the proposed rules from any member of the public are solicited. A written comment should be mailed or delivered to Jim Mathieson, Texas Ethics Commission, P.O. Box 12070, Austin, Texas 78711-2070, or by facsimile (FAX) to (512) 463-5777. A person who wants to offer spoken comments to the commission concerning the proposed rule may do so at any commission meeting during the agenda item "Communication to the Commission from the Public" and during the public comment period at a commission meeting when the commission considers final adoption of the proposed repeal of the rules. Information concerning the date, time, and location of commission meetings is available by telephoning (512) 463-5800 or, toll free in Texas, (800) 325-8506. The new sections are proposed under Texas Government Code, Chapter 571, sec.571.062, which provides the commission with the authority to promulgate rules to implement laws administered and enforced by the commission. sec.34.7. Gift of Cash or Negotiable Instrument. (a) A registrant may not give a member a gift of cash or a negotiable instrument. (b) This section does not apply to a gift that is a political contribution regulated by this title and under Election Code, Title 15 (relating to Regulating Political Funds and Campaigns). sec.34.9. Gifts to a Member by a Related Registrant. Neither sec.34.1 of this title (relating to Maximum Annual Lobby Expenditures) nor sec.34.7 of this title (relating to Gift of Cash or Negotiable Instruments) prohibits or restricts a gift to a member by a registrant who is related to that member within the second degree of affinity or consanguinity, as determined in accordance with Government Code, Chapter 573, Subchapter B (relating to Relationships by Consanguinity or by Affinity). sec.34.11. Loans to a Member by a Registrant. (a) Except as permitted under subsection (b) or (c) of this section, a registrant shall not make a loan to a member, or guarantee or endorse a loan by another person to a member. (b) This section does not apply to prohibit a loan by a registrant under the following circumstances: (1) the registrant making the loan is a corporation or other business entity that has been legally and continuously engaged in the business of lending money for more than one year before the loan is made; and (2) the loan to the member is made in the due course of business by that registrant. (c) This section does not prohibit a loan, or the guarantee or endorsement of a loan, to a member by a registrant who is related to the member within the second degree of affinity or consanguinity, as determined in accordance with Government Code, Chapter 573, Subchapter B (relating to Relationships by Consanguinity or by Affinity). 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 27, 1994. TRD-9435379 Jim Mathieson Assistant General Counsel Texas Ethics Commission Earliest possible date of adoption: March 7, 1994 For further information, please call: (512) 463-5800 1 TAC sec.sec.34.9, 34.11, 34.13 (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 Ethics Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas Ethics Commission proposes the repeal of sec. s34.9, 34.11, and 34.13, concerning the conduct of those persons registered as lobbyists with the commission pursuant to the Government Code, Chapter 305. The sections are being repealed because s34.11 is being amended, and each section is being renumbered and newly proposed as follows: Repealed section - Proposed section: Section 34.9-34.7. Section 34.11-34.9. Section 34.13-34.11. Jim Mathieson, assistant general counsel, has determined that for the first five-year period the repeals are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the repeals. The public benefit is not applicable. There will be no effect on small businesses or costs to persons required to comply with the proposed repeals. Comments on the proposed repeal of the rules from any member of the public are solicited. A written comment should be mailed or delivered to Jim Mathieson, Texas Ethics Commission, P.O. Box 12070, Austin, Texas 78711-2070, or by facsimile (FAX) to (512) 463-5777. A person who wants to offer spoken comments to the commission concerning the proposed rule may do so at any commission meeting during the agenda item "Communication to the Commission from the Public" and during the public comments period at a commission meeting when the commission considers final adoption of the proposed repeal of the rules. Information concerning the date, time, and location of commission meetings is available by telephoning (512) 463-5800 or, toll free in Texas, 1 (800) 325- 8506. The repeals are proposed under Texas Government Code, Chapter 571, sec.571. 062, which provides the Texas Ethics Commission with the authority to promulgate and adopt rules concerning those provisions of the law administered by the commission. sec.34.9. Gift of Cash or Negotiable Instrument. sec.34.11. Gifts to a Member by a Related Registrant. sec.34.13. Loans to a Member by a Registrant. 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 27, 1994. TRD-9435380 Jim Mathieson Assistant General Counsel Texas Ethics Commission Earliest possible date of adoption: March 7, 1994 For further information, please call: (512) 463-5800 Chapter 48. Gifts to Regulatory Agency Officers and Employees Subchapter A. Prohibition on Acceptance of a Benefit; Recusal 1 TAC sec.sec.48.1, 48.3, 48.5, 48.7, 48.9 The Texas Ethics Commission (the commission) proposes new sec.sec.48.1, 48.3, 48.5, 48.7, and 48.9, concerning the solicitation or acceptance of gifts by regulatory agency officers and employees; definition of the terms agency and benefit; recusal of a commissioner or a commission employee from any discussion or action involving a person who has given the commissioner or employee a benefit; and disclosure of the basis for recusal if not confidential. In addition, the rules set forth exceptions to recusal. These sections provide guidelines to agency officers and employees in soliciting and accepting gifts from any person who is either regulated by the agency or has an interest in a transaction that may be substantially affected by a commissioner or agency employee. Jim Mathieson, assistant general counsel, 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. Mathieson 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 better understanding of the procedure used in transferring an appointment of campaign treasurer from one filing authority to another. 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. Mr. Mathieson also has determined that this rule will have no local employment impact. Comments on the proposed rules from any member of the public are solicited. A written comment should be mailed or delivered to Jim Mathieson, Texas Ethics Commission, P.O. Box 12070, Austin, Texas 78711-2070, or by facsimile (FAX) to (512) 463-5777. A person who wants to offer spoken comments to the commission concerning the proposed rule may do so at any commission meeting during the agenda item "Communication to the Commission from the Public" and during the public comment period at a commission meeting when the commission considers final adoption of the proposed repeal of the rules. Information concerning the date, time, and location of commission meetings is available by telephoning (512) 463-5800 or, toll free in Texas, (800) 325-8506. The new sections are proposed under Texas Government Code, Chapter 571, sec.571.062, which provides the commission with the authority to promulgate rules to implement laws administered and enforced by the commission. sec.48.1. Rule Required To Be Adopted by Certain State Agencies. (a) In this section, "agency" means any department, commission or board that: (1) is in the executive branch of the state government; (2) is under the direction of an officer or governing body that is not subject to impeachment; (3) has authority that is not limited to a geographical portion of the state; (4) was created by the constitution or a statute of this state; and (5) has constitutional or statutory authority to engage in rule-making, adjudication, or licensing. (b) This section is intended to implement Government Code, sec.571.063 (relating to Rules Concerning Gifts to Regulatory Agency Officers and Employees). (c) Each agency shall adopt rules that limit the acceptance of benefits from a person who appears before or is regulated by that agency. (d) Rules adopted under this section shall be at least as restrictive as the commission's rules set forth in the remaining sections of this subchapter. An agency may adopt rules that are more restrictive than these rules. (e) Before December 31, 1995, or the first anniversary of the creation of the agency, whichever is later, the chief legal counsel or other appropriate officer of each agency shall submit to the executive director of the commission a copy of the rules adopted by the agency under this section and a statement that such rules satisfy the requirements of this section, or an explanation of why such a statement cannot be made. (f) Any revision, withdrawal, or repeal of a rule adopted under this section shall be submitted under this section for commission approval before final action by the agency to revise, withdraw, or repeal the rule. (g) The commission may delegate any of its duties under this section to the executive director. sec.48.3. Benefit Defined.
    In this subchapter, "benefit" means anything reasonably regarded as pecuniary gain or pecuniary advantage to the beneficiary or to any other person in whose welfare the beneficiary has a direct and substantial interest, and includes any gift, award, or memento that is required to be reported under Government Code, Chapter 305 (relating to Registration of Lobbyists). sec.48.5. Rule Cumulative of Statutory Restrictions. This subchapter is cumulative of all statutory prohibitions and restrictions on the acceptance of benefits. sec.48.7. Acceptance of Certain Benefits Restricted. A commissioner or employee may not solicit or accept, for the commissioner or employee nor for another person, any travel or lodging from a person who is: (1) interested in a contract, purchase, claim, or other pecuniary transaction that may be substantially affected by the performance or nonperformance of the commissioner's or employee's official duties; or (2) subject to regulation, inspection, or investigation by the commission. sec.48.9. Recusal. (a) A commissioner who accepts a benefit shall recuse himself or herself from any discussion or action taken by the commission with regard to any matter in which the commissioner knows or should know the donor of the benefit may have a personal or economic interest. If disclosure of the required recusal would not tend to reveal information made confidential by law, the commissioner must disclose the recusal and the basis for the recusal at the time of the recusal. (b) A commission employee who accepts a benefit shall not participate in the disposition of any matter in which the employee knows or should know the donor of the benefit may have a personal or economic interest. (c) A commission employee reused under subsection (b) of this section from participating in the disposition of any matter shall notify his or her immediate supervisor of the recusal and the reason for the recusal. (d) Recusal under subsection (a) of this section is not required if the matter in question affects an entire profession or class of business entities and the interest that would otherwise require recusal is no different than that of any other member of the affected profession or class. (e) Recusal under this section is not required if the benefit is an item with a value of less than $50, excluding cash or a negotiable instrument as described by Business and Commerce Code, sec.3.104 (relating to Form of Negotiable Instruments; "Draft;" "Check;" "Certificate of Deposit;" "Note"). 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 27, 1994. TRD-9435378 Jim Mathieson Assistant General Counsel Texas Ethics Commission Earliest possible date of adoption: March 7, 1994 For further information, please call: (512) 463-5800 Part XVII. Texas Office of State-Federal Relations Chapter 451. Federal Grant Assistance Subchapter A. The State Match Pool for Federal Discretionary Grant Assistance 1 TAC sec.sec.451.1-451.9 The Texas Office of State-Federal Relations proposes new ssec.451.1-451.9, concerning the administration of and disbursement of funds from its State Match Pool. Jane Hickie, executive director of the Texas Office of State-Federal Relations, 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. Ms. Hickie 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 more effective use of public financial resources and better leverage of federal financial assistance to the State of Texas. Comments on the proposed sections may be submitted to Dr. Mary E. Lee, State Match Pool Administrator, Texas Office of State-Federal Relations, P.O. Box 13005, Austin, Texas, 78711 for a period of 30 days following publication. The new sections are proposed under Texas Government Code, sec.751.022(b)(8), which empowers the Texas Office of State-Federal Relations with general rule- making authority, and the General Appropriations Act of 1993 (Article 1-3, Rider 5), which authorizes the Texas Office of State-Federal Relations to establish and administer a federal grants initiative that will draw additional federal dollars to Texas. These sections establish the Texas Office of State-Federal Relations State Match Pool to implement this initiative. sec.451.1. Introduction to and Purpose of the State Match Pool. (a) Background. The State Match Pool is a pilot program administered by the Texas Office of State-Federal Relations. The program provides state agencies with a pool of state funds to which they may apply for matching monies to meet the match requirements of federal discretionary grant programs. Often, state agencies are eligible to apply for federal funds under these programs, but lack the necessary match amount within their own budget. The intent of the 73rd Legislature, as specified in the General Appropriations Act of 1993, is that increased activity associated with the program shall generate sufficient general revenue to pay for the 1994-1995 biennial appropriation of $10 million for this purpose. The Texas Office of State-Federal Relations has therefore determined that the State Match Pool pilot program shall give preference to those federal grant proposals that include realistic projections of economic growth in the state as a direct outcome to be expected from completion of the proposed grant activities. (b) Goal. The primary goal of the State Match Pool pilot program is to increase opportunities for state agencies to engage in enterprising, innovative projects that benefit the Texas economy by increasing their opportunities to obtain state funds to match federal discretionary grant funds for these projects. (c) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Director-The executive director of the Texas Office of State-Federal Relations. (2) Federal discretionary grant programs-Programs of the federal government that award grants or contracts on a competitive, non-formula basis. In general, this definition is intended to be consistent with, but not limited to, Type "B" Project Grant assistance programs as defined in the 27th Edition of the Catalog of Federal Domestic Assistance (June 1993, page XV). sec.451.2. Program Coverage.
      State Match Pool funds shall only be used to meet the matching monies requirements of federal discretionary grant programs under which funds are available during a state funding biennium to be awarded to state agencies. sec.451.3. Eligibility for Funds. (a) State agencies. State agencies applying to a federal discretionary grant program for project funding are eligible to also apply for State Match Pool funds. While an applicant to the State Match Pool must be a state agency, grant activities proposed by a state agency under a partnership of the agency with other state and non-state entities are encouraged. (b) Fiscal Certification. The Chief Executive Officer or the Chief Financial Officer of the state agency making application for State Match Pool funds must provide a letter certifying that the requested match amount is unavailable within his or her own budget. sec.451.4. Maximum and Minimum Awards. (a) Amount. No minimum or maximum award amount is set. However, the maximum award amount is clearly limited by the amount of the biennial appropriation to the State Match Pool. (b) Percentage. In no case shall the amount of State Match Pool funds awarded to a single project exceed 40% of the total projected costs for that project. sec.451.5. Application for State Match Pool Funds.
        The Texas Office of State-Federal Relations may establish a competitive application process and may require state agencies to submit standardized documents in applying to the State Match Pool. sec.451.6. Review of Applications. (a) Application review panels. Applications may be reviewed, rated, and recommended for funding by members of an application review panel. (b) The director shall approve the admittance of applications to the State Match Pool. sec.451.7. Availability of Funds. (a) Admittance to the pool. Admittance of an application to the State Match Pool qualifies the applicant to receive State Match Pool funds pending award notification from the federal grant program to which they have applied for funding and subject to the availability of State Match Pool funds at the time of the federal award. State Match Pool funding amounts shall be allocated to qualified applications for subsequent encumbrance of funds to qualified applicant agencies in date-order of federal award notification. Other application information such as date of receipt of the State Match Pool application may be used to further calculate the ordering of applications for encumbrance of funds. (b) Over-commitment of funds. The Texas Office of State-Federal Relations does not expect that every qualified application will be accepted for federal funding. Therefore, the Texas Office of State-Federal Relations may over-commit funds. When the Texas Office of State-Federal Relations determines that a qualified State Match Pool applicant's proposal has been rejected by the federal program, the application will be removed from the qualified pool and funding amounts previously allocated to that application shall be re-allocated to other applications. When The Texas Office of State-Federal Relations has determined that a qualified State Match Pool applicant's proposal has been approved for funding by the federal program, State Match Pool funds shall be encumbered to the state agency awardee, subject to the availability of funds. (c) Non-availability of funds. The Texas Office of State-Federal Relations expects that availability of State Match Pool funds will decrease significantly as time passes during a state funding biennium. When all monies appropriated by the Texas Legislature to the Texas Office of State-Federal Relations State Match Pool for a funding biennium have been encumbered to qualified applicants receiving federal awards, remaining qualified applicants shall be notified that funds are no longer available to be encumbered to the applicant agency. sec.451.8. Award Process. (a) Awardee notification. When the Texas Office of State-Federal Relations has determined that a qualified State Match Pool applicant's proposal has been approved for federal funding by the federal program under which the grant was requested, the qualified applicant shall be notified whether or not State Match Pool funds are currently available to be encumbered to the State Match Pool awardee. (b) Award disbursement. Subsequent disbursement of State Match Pool funds encumbered to a state agency may be guided by federal rules concerning disbursement of monies under the federal program awarding the grant. State Match Pool monies shall be disbursed prior to project commencement only if required by federal rules under the federal program awarding the grant. sec.451.9. Awardee Responsibilities.
          In order to receive disbursements of State Match Pool monies that have been encumbered to them, state agency awardees may be required under contractual arrangement with the Texas Office of State- Federal Relations to: (1) have a system established in writing to ensure that appropriate officials provide necessary agency reviews and approvals for the expenditure of funds and for monitoring project performance and adherence to federal award terms and conditions; (2) have financial management systems that meet the requirements of the State Auditor; (3) retain financial records, supporting documents, statistical records, and other materials pertinent to the award for a period of three years following submission of the final project report and make these available to the Texas Office of State-Federal Relations upon request; (4) be responsible for performing the duties and tasks described under all project grant agreements with the federal program awarding the grant; (5) provide the Texas Office of State-Federal Relations with copies of all project documentation required by the federal program awarding the grant, including periodic project reports, final project reports, and all fiscal reports; (6) provide project demonstrations, site inspections or additional project documentation, including written materials to substantiate benefit to the Texas economy, as requested by the Texas Office of State-Federal Relations or the advisory board; (7) honor intellectual property rights of project participants as outlined in any agreements made to facilitate fulfillment of award activities; (8) agree that the award may be suspended or terminated if the awardee fails to comply with OSFR terms and conditions of the award or if the federal award is suspended or terminated; (9) agree that no person shall be excluded from participation in, be denied benefits or, or be otherwise subjected to discrimination under a State Match Pool award on the grounds of race, color, national origin, religious affiliation, handicap, or sex; (10) agree that the Texas Office of State-Federal Relations shall not be held liable in the event of damages to persons or property which may occur in the course of activities conducted as a result of the award. 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 31, 1994. TRD-9435383 David A. Talbot General Counsel Office of the Governor Earliest possible date of adoption: March 7, 1994 For further information, please call: (512) 463-7295 TITLE 16. ECONOMIC REGULATION Part II. Public Utility Commission of Texas Chapter 23. Substantive Rules Financial Records and Reports 16 TAC sec.23.12 The Public Utility Commission of Texas proposes an amendment to sec.23. 12(e), concerning a Cost Allocation Manual for the Local Exchange Carriers in Texas. This proposal is formulated subsequent to the publication of questions in the June 11, 1993, issue of the Texas Register (18 TexReg 3716), and receipt of comments for creating a Cost Allocation Manual that establishes a mechanism for separating costs of regulated telephone service from the costs of nonregulated products and services. This proposal provides for LECs to annually file their Cost Allocation Manual, an independent audit attesting that the CAM is consistent with the requirements of this subsection, an attestation statement that the CAM was followed throughout the year, and nonregulated/regulated percentages by account for prior and current years. The Tier 1 LEC's (companies with $100 million or more in operating revenues) would file the CAM they provide the FCC, with the Public Utility Commission of Texas. The Tier 2 LEC's (companies with less than $100 million in operating revenues) would be required to formalize their accounting procedures as they relate to the allocation of costs between regulated and nonregulated activities. Harish Dhingra, assistant general counsel, 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. Dhingra 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 in ensuring access to the LEC's cost allocation manuals. These manuals will provide for a separation of regulated and nonregulated telephone costs and aid the Commission in determining whether or not nonregulated activities are being subsidized by the revenues generated from the regulated activities. There will be some cost effects on small businesses as a result of enforcing the section. There will be some one-time cost effects associated with implementing separate accounts, and thereafter, costs associated with auditing the accounts, on small businesses as a result of enforcing the section. There is no additional anticipated economic cost to utilities who are required to comply with the proposed changes. Mr. Dhingra also has determined that for each year of the first five years the section is in effect there will be no effect on employment in the geographical areas affected by implementing the requirements of this section. Comments on the proposed amendment (13 copies) may be submitted to John M. Renfrow, Secretary of the Commission, Public Utility Commission of Texas, 7800 Shoal Creek Boulevard, Austin, Texas 78757, within 30 days after publication. Comments should refer to project Number 11289. The amendment is proposed under Texas Civil Statutes, Article 1446c, sec.16(a), which provide the Public Utility Commission of Texas with the authority to make and to enforce rules establishing Cost Allocation Manual requirements. The following is the statute that is affected by this rule: Texas Civil Statutes, Article 1446c. sec.23.12. Financial Records and Reports. (a)-(d) (No change.) (e) Cost Allocation Manual (CAM). (1) A Local Exchange Carrier (LEC) that provides both intrastate regulated and intrastate nonregulated products or services shall maintain a current intrastate cost allocation manual on file with the Commission. (A) If the Federal Communication Commission (FCC) requires the LEC to file an interstate cost allocation manual, and the LEC uses the same allocation basis on the intrastate costs, the LEC shall file a current copy of its interstate manual with the Commission, by May 1st, and shall follow the interstate procedures set forth by the FCC for intrastate cost allocation purposes. (B) If a LEC follows an affiliate company's interstate CAM as filed with the FCC and uses the same allocation basis on the intrastate costs, then the LEC shall file a current copy of its sister company's interstate manual with the Commission, by May 1st, and shall follow the interstate procedures set forth by the FCC for intrastate cost allocation purposes. (2) The LEC's Intrastate Cost Allocation Manual shall contain the following sections and information. (A) Introduction. Includes a discussion of the cost accounting concepts, language and applications utilized throughout the CAM. (B) Nonregulated Activities. Contains a matrix which identifies each nonregulated product and service and the accounts associated with that nonregulated product or service. (C) Incidental Activities. Defines, identifies and contains a list of incidental activities and the justification for treating each as incidental. (D) Chart of Affiliates. A chart showing all of the LEC's corporate affiliates as defined in Public Utility Regulatory Act (PURA), Article I, sec.3(i). (E) Transactions with Affiliates. Statements identifying affiliates that engage in or will engage in transactions with the local exchange carrier and describing the nature, terms, and frequency of such transactions. (F) Cost Apportionment Table. Identifies the specific methodologies applied to each account to apportion costs between regulated operations and nonregulated operations. (G) Time Reporting Procedures. Describes the time reporting system used by the telephone operating units, how frequently the reporting system is updated and the methods used to train, implement, monitor, and reinforce accurate time reporting by employees. (3) The LEC's Cost Allocation Manual shall divide the total costs in each FCC Uniform System of Accounts Part 32 account into regulated, nonregulated, and common cost pools, as appropriate. Costs shall be apportioned to regulated and nonregulated cost pools on the basis of direct assignment. Any remaining costs shall be assigned to the common cost pool. After initial assignment, costs included in the common cost pool shall be apportioned to the regulated and nonregulated costs pools utilizing one of the apportionment methods approved by the Commission. The Part 32 accounts, appropriate cost pools, and approved apportionment methods are specified in the Commission approved form entitled, Cost Allocation Matrix, which is available from the Commission's central records office. (4) Annually, by May 1st, each LEC shall file with the Commission the following information regarding the most recent calender year: (A) its Cost Allocation Manual; (B) an audit by independent auditors attesting that the company has designed and implemented its CAM in a manner consistent with the requirements of this subsection. In addition, the independent auditors should provide the same level of assurance as a financial statement audit; (C) estimates of the dollar effects of all CAM manual revisions summarized by revision as it impacts each Part 32 account; (D) a statement signed by a company officer attesting to the fact that the Cost Allocation Manual was followed throughout the year; and (E) a report providing information on the level of regulated/nonregulated activities shall be submitted. The report shall be formatted on a Part 32 account Cost Pool basis and indicate on a dollar and percentage basis the level of regulated and nonregulated activities. (5) A LEC is not required to file the information specified in paragraph (4)(B) and (E) of this subsection if: (A) the only nonregulated activities in which the LEC engages is customer premise equipment and/or inside wire; or (B) the LEC has no more than 5.0% interest, either directly or indirectly, in a nonregulated subsidiary; (C) a LEC exclusively engaged in regulated activities is not required to file the Cost Allocation Manual with the Commission. Such a LEC shall annually, by May 1st, file with the Commission a statement signed by a company officer attesting to the fact that the LEC was engaged in only regulated activities throughout the year. 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 28, 1994. TRD-9435363 John M. Renfrow Secretary of the Commission Public Utility Commission of Texas Earliest possible date of adoption: March 7, 1994 For further information, please call: (512) 458-0100 Part III. Texas Alcoholic Beverage Commission Chapter 33. Licensing Bonds 16 TAC sec.33.23 The Texas Alcoholic Beverage Commission proposes an amendment to sec.33.23, concerning setting the annual surcharge for all holders of certificates, permits or licenses issued by the commission as required by Texas Alcoholic Beverage Code, sec.5.50(b), effective September 1, 1993. The section amends subsection (b) by lowering the annual surcharge from $300 to $160. The section adds an additional subsection regarding the refund of any amounts previously collected in excess of $160. Brian Guenthner, acting director of licenses and permits, has determined that for the first five-year period the rule is in effect there will be fiscal implications as a result of enforcing or administering the rule. This determination is based upon an estimation of the numbers of permits or licenses the commission will issue within the fiscal year. The estimation is determined by taking an average of the current and previous two years licenses and permits issued and applying the appropriate surcharge. For state government the estimated revenue for each of the first five years is $1,253,760, with estimated additional cost being insignificant. There will be no fiscal implications for units of local governments. The public benefit cost is that the regulated alcoholic beverage industry will bear the entire amount of the cost of regulation by the Texas Alcoholic Beverage Commission. The effect on small businesses cannot be determined but is considered to be minimal and would not anticipate having a disproportionate impact on those in the alcoholic beverage industry. The cost will be borne by persons licensed to sell alcoholic beverages and individual citizens will not be impacted except as this may inflate the price of a drink to a retail customer. Comments on the proposal may be submitted to Brian Guenthner, Acting Director of Licenses and Permits, P.O. Box 13127, Austin, Texas 78711. The telephone number is (512) 206-3327. The amendment is proposed under the Texas Alcoholic Beverage Code, Subchapter (B), sec.5.31, which provides the Texas Alcoholic Beverage Commission with the authority to prescribe and publish rules necessary to carry out the provisions of the Texas Alcoholic Beverage Code, and sec.5.50(b) which specifically mandates the surcharges. The following statute will be impacted by the passage of this amendment: Alcoholic Beverage Code, sec.sec.11.32, 28.02, 32.02, 61.35, and 74.02. sec.33.23. Alcoholic Beverage License and Permit Surcharges. (a) (No change.) (b) In order to cover the costs of the administration of the mixed beverage tax by the comptroller, all holders of mixed beverage permits and private club registration permits shall pay in addition to the 20% surcharge, an annual surcharge of [$300] $160
            . (c)-(d) (No change.) (e) Any annual surcharge paid after September 1, 1993, in excess of $160, in addition to the 20% surcharge shall be refunded to mixed beverage and private club permit holders. 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 31, 1994. TRD-9435391 Gayle Gordon General Counsel Texas Alcoholic Beverage Commission Earliest possible date of adoption: March 7, 1994 For further information, please call: (512) 206-3204 TITLE 19. EDUCATION Part II. Texas Education Agency Chapter 61. School Districts Subchapter AA. Commissioner's Rules School Finance 19 TAC sec.61.1010 The Texas Education Agency (TEA) proposes new sec.61.1010, concerning standards that limit administrative cost expenditures by school districts. The section establishes standards against which districts' administrative-to- instructional cost ratios are compared. Districts with excess administrative expenditures can meet these standards by reducing administrative expenditures and/or increasing instructional expenditures. Kevin O'Hanlon, chief legal counsel, has determined that for the first five- year period the rule is in effect there will be fiscal implications as a result of enforcing or administering the rule. However, because districts can achieve the proposed standards by decreasing administrative expenditures, increasing instructional expenditures, or some combination of the two, the effects on state and local government cannot be estimated. In general, the enabling legislation creates a mechanism through which the state recovers excess administrative expenditures and districts experience a reduction in revenue equal to that excess. Mr. O'Hanlon and Criss Cloudt, associate commissioner for policy planning and evaluation, have determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be a decrease in the expenditure of school district funds on administration, an increase in the expenditure of school district funds on instruction, or some combination of the two. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the rule as proposed. Comments on the proposal may be submitted to Criss Cloudt, Policy Planning and Evaluation, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. All requests for a public hearing on the proposed rule submitted under the Administrative Procedure Act and the Texas Register Act must be received by the commissioner of education not more than 15 calendar days after notice of a proposed change in the rule has been published in the Texas Register. The new rule is proposed under the Texas Education Code, s16.205, which authorizes the State Board of Education to adopt standards that limit school districts' administrative costs. sec.61.1010. Standards for School District Administrative Cost Ratios. (a) Administrative cost ratio standards are established on the basis of the refined average daily attendance (ADA) of a school district for the prior year, unless the district qualified in that prior year for a sparsity adjustment. (1) For an ADA of 10,000 or more, the standard is 0.1105. (2) For an ADA of 5,000-9,999, the standard is 0.1250. (3) For an ADA of 1,000-4,999, the standard is 0.1401. (4) For an ADA of 500-999, the standard is 0.1561. (5) For an ADA of less than 500 without a sparsity adjustment, the standard is 0.2654. (6) For a district that qualified for a sparsity adjustment, the standard is 0.3614. (b) For the administrative cost limits calendar that begins in May 1994, prior year refers to the 1992-1993 school year. For the administrative cost limits calendar that begins in May 1995, prior year refers to the 1993-1994 school year. 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 31, 1994. TRD-9435408 Criss Cloudt Associate Commissioner, Policy Planning and Evaluation Texas Education Agency Earliest possible date of adoption: March 7, 1994 For further information, please call: (512) 463-9701 Chapter 161. Advisory Committees Subchapter AA. Commissioner's Rules 19 TAC sec.sec.161.1001-161.1003 The Texas Education Agency (TEA) proposes new sec.sec.161.1001- 161.1003, concerning advisory committees. The sections specify the procedures for establishing advisory committees and list all committees currently in effect. Criss Cloudt, associate commissioner for policy planning and evaluation, has determined that for the first five-year period the rules are in effect there will be fiscal implications as a result of enforcing or administering the rules. The effect on state government will be an estimated additional cost of $794,022 in fiscal year (FY) 1994; $384,321 in FY 1995; $274,792 in FY 1996; and $197,668 in FY 1997. There will be no effect on state government in FY 1998. There will be no effect on local government. Ms. Cloudt has determined that for each year of the first five years the rules are in effect the public benefit anticipated as a result of enforcing the rules will be streamlined management of public education advisory committees and complete disclosure of information about advisory committees. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the rules as proposed. Comments on the proposal may be submitted to Criss Cloudt, Policy Planning and Evaluation, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. All requests for a public hearing on the proposed rules submitted under the Administrative Procedure Act and the Texas Register Act must be received by the commissioner of education not more than 15 calendar days after notice of a proposed change in the rules has been published in the Texas Register. The new rules are proposed under the Texas Education Code, sec.11.954 and sec.11.957, which authorizes the commissioner of education to adopt rules concerning the purpose, task, reporting procedures, and abolishment of advisory committees. sec.161.1001. Establishment of Advisory Committees. (a) The commissioner of education has general authority to establish advisory committees and to appoint the membership of advisory committees, subject to confirmation by the State Board of Education (SBOE). The commissioner may establish an advisory committee based on state or federal law or SBOE recommendation or as the commissioner deems expedient. Each petition from the public to establish an advisory committee shall be presented in writing to the commissioner. (b) Rules governing SBOE confirmation of advisory committees are located in the State Board of Education Operating Rules, Chapter 6, relating to Advisory Groups. sec.161.1002. Texas Education Agency Operating Procedures. The commissioner of education shall adopt and implement Texas Education Agency (TEA) operating procedures governing establishment and operation of public education advisory committees. For each committee listed in sec.161.1003 of this title (relating to Advisory Committees), the commissioner shall include the following information as an attachment to the operating procedures: (1) name of the committee; (2) purpose of the committee; (3) task of the committee and the manner in which the committee shall report to the commissioner; and (4) date by which the committee shall be abolished. sec.161.1003. Advisory Committees.
              The following public education advisory committees are in effect: (1) Texas Commission on Braille Textbook Production; (2) Committee of Practitioners for Career and Technology Education; (3) State Committee of Practitioners - Chapter 1 Handicapped Program; (4) Committee of Practitioners - Chapter 1; (5) Chapter 2 Advisory Committee; (6) Texas Collaborative Transition Grant Advisory Committee; (7) Task Force on the Education of Students with Disabilities; (8) Texas Environmental Education Advisory Committee; (9) Commissioner's Advisory Council on the Education of Gifted Students; (10) Council for Personnel Preparation for the Handicapped; (11) Advisory Task Force on the Education of Homeless Children and Youth; (12) Policy Committee on Public Education Information; (13) State Parent Advisory Council for Migrant Education; (14) Minority Recruitment Advisory Committee; (15) State Advisory Board on National and Community Service; (16) Academic Excellence Indicator System (AEIS): Parent Report Card Advisory Committee; (17) Investment Advisory Committee on the Permanent School Fund; (18) Texas Preschool Evaluation Project Advisory Committee; (19) Texas Education Program Manual Task Force; (20) Roundtable on School Safety and Violence Prevention; (21) Statewide Site-Based Decision Making Advisory Committee; (22) Special Education Effectiveness Studies Project Advisory Committee; (23) Continuing Advisory Committee for Special Education; (24) Advisory Committee on Student Assessment; (25) Committee on Student Learning; (26) State Panel on Student Skills and Knowledge; (27) Texas Successful Schools Award System Advisory Committee; (28) Committee on Teacher Appraisal/Assessment; (29) Commission on Standards for the Teaching Profession; (30) Educational Technology Advisory Committee; and (31) State Textbook Committees for Proclamation 1992. 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 31, 1994. TRD-9435409 Criss Cloudt Associate Commissioner, Policy Planning and Evaluation Texas Education Agency Earliest possible date of adoption: March 7, 1994 For further information, please call: (512) 463-9701 TITLE 22. EXAMINING BOARDS Part IX. Texas State Board of Medical Examiners Chapter 161. General Provisions 22 TAC sec.161.1 The Texas State Board of Medical Examiners proposes an amendment to sec.161.1, concerning board meetings. The proposed amendment will define the regulations related to board member attendance. Tim Weitz, general counsel, 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. Weitz 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 ensure that board members are in compliance with the Medical Practice Act and that sufficient board members are available for a quorum. 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 Pat Wood, P.O. Box 149134, Austin, Texas 78714-9134. A public hearing will be held at a later time. The amendment is proposed under Texas Civil Statutes, Article 4495b, which provide the Texas State Board of Medical Examiners with the authority to make rules, regulations and bylaws not inconsistent with this Act as may be necessary for the governing of its own proceedings, the performance of its duties, the regulation of the practice of medicine in this state, and the enforcement of this Act. Article 4495b, sec.2.04(a) is affected by this proposed amendment. sec.161.1. Meetings. (a)-(b) (No change.) (c) It is a ground for removal from the board if a board member is absent from more than half of the regularly scheduled board meetings that the member is eligible to attend during a calendar year. If the executive director of the board has knowledge that a potential ground for removal exists due to a member's failure to attend an adequate number of regularly scheduled board meetings, the executive director shall notify the president of the board of the ground. The president shall then notify the governor that a potential ground for removal exists. A board member shall be considered to have been absent from a regularly scheduled board meeting if the member fails to attend at least a portion of a regularly scheduled board meeting on each day that the meeting is held or fails to attend at least a portion of a scheduled committee meeting to which the member is assigned on each day that such a meeting is held unless the board member's failure to be present is due to required attendance at a meeting of the full board, the disciplinary panel, or a committee of the board. Any dispute or controversy as to whether or not an absence has occurred shall be submitted to the full board for resolution by a majority vote after giving the purported absentee an opportunity to be heard and after allowing discussion by other members of the board.
                [It shall be incumbent upon each member of the Texas State Board of Medical Examiners to be in attendance at each meeting of the board in fulfillment of his or her duties as a member. If for any good and sufficient reason he or she determines that he or she will be unable to attend any regular or called meeting, he or she shall notify the executive director or secretary of the board of his or her impending absence before such meeting is called to order and give the reason for such absence. The executive director or secretary will then report to the board in session the absence of such member and the reason therefore. Any member of the board believing the reason for such absence insufficient may institute a motion for the reprimand or censorship of such member.] 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 28, 1994. TRD-9435327 Bruce A. Levy, M.D., J.D. Executive Director Texas State Board of Medical Examiners Earliest possible date of adoption: March 7, 1994 For further information, please call: (512) 834-7728, Ext. 402 Chapter 175. Schedule of Fees and Penalties 22 TAC sec.175.1 The Texas State Board of Medical Examiners proposes an amendment to sec.175.1, concerning fees for the Federation Licensing Examination (FLEX) and the United States Medical Licensing Examination (USMLE). The proposed amendment will delete the fees for repeat of the FLEX and set a fee for the repeat of the USMLE. Ivan Hurwitz, director of licensure, 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. Hurwitz 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 identify and collect fees for the repeat of the USMLE examination and delete fees for the FLEX examination, which is no longer in existence. There will be no effect on small businesses. The anticipated economic cost to persons who are required to comply with the section as proposed will be $500 per examinee. Comments on the proposal may be submitted to Pat Wood, P.O. Box 149134, Austin, Texas 78714-9134. A public hearing will be held at a later time. The amendment is proposed under Texas Civil Statutes, Article 4495b, which provide the Texas State Board of Medical Examiners with the authority to make rules, regulations and bylaws not inconsistent with this Act as may be necessary for the governing of its own proceedings, the performance of its duties, the regulation of the practice of medicine in this state, and the enforcement of this Act. Article 4495b, sec.2.09(k) is affected by this proposed amendment. sec.175.1. Fees. The board shall charge the following fees: (1)-(4) (No change.) (5) examination fees (required and payable each time applicant is scheduled for examination): (A) USMLE Step 3-$500; [(A) FLEX Component I-$300;] [(B) FLEX Component II-$300;] (B)
                  [(C)] Jurisprudence-$30; (C)
                    [(D)] SPEX-$275. (6)-(17) (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 28, 1994. TRD-9435326 Bruce A. Levy, M.D., J.D. Executive Director Texas State Board of Medical Examiners Earliest possible date of adoption: March 7, 1994 For further information, please call: (512) 834-7728, Ext. 402 Part IX. Texas State Board of Medical Examiner Chapter 187. Procedure Subchapter B. Prehearing 22 TAC sec.187.19, sec.187.24 (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 Medical Examiner or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas State Board of Medical Examiners proposes the repeal of sec.187. 19 and sec.187.24 concerning show compliance proceeding and informal disposition. Extensive rewrite of the sections was found necessary; therefore, repeal of the existing sections with simultaneous new sections is proposed. Tim Weitz, general counsel, 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. Weitz 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 clarification of 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 Pat Wood, P.O. Box 149134, Austin, Texas 78714-9134. A public hearing will be held at a later time. The repeal is proposed under Texas Civil Statutes, Article 4495b, which provide the Texas State Board of Medical Examiners with the authority to make rules, regulations and bylaws not inconsistent with this act as may be necessary for the governing of its own proceedings, the performance of its duties, the regulation of the practice of medicine in this state, and the enforcement of this act. Cross Index-Article 4495b, sec.4.02 and sec.4.025; and the Administrative Procedures Act, sec.2001.054 and s2001.056, Texas Government Code. sec.187.19. Show Compliance Proceeding. sec.187.24. Informal Disposition. 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 31, 1994. TRD-9435323 Bruce A. Levy, M.D., J.D. Executive Director Texas State Board of Medical Examiners Earliest possible date of adoption: March 7, 1994 For further information, please call: (512) 834-7728, Ext. 402 The Texas State Board of Medical Examiners proposes new s187.19 and sec.187.24 concerning show compliance proceeding and informal disposition. These proposed new sections will establish procedures for the conducting of informal settlement conferences and show compliance proceedings. Tim Weitz, general counsel, has determined that there will be no fiscal implications as a result of enforcing or administering the sections. Mr. Weitz, also has determined that the public benefit will be the streamlining of the administrative process. 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 Pat Wood, P.O. Box 149134, Austin, Texas 78714-9134. The new sections are proposed under Texas Civil Statutes, Article 4495b, which provide the Texas State Board of Medical Examiners with the authority to make rules, regulations, and bylaws not inconsistent with this act as may be necessary for the governing of its own proceedings, the performance of its duties, the regulation of the practice of medicine in this state, and the enforcement of this act. Cross Index-Article 4495b, sec.4.02 and sec.4.025; and the Administrative Procedures Act, sec.2001.054 and 2001.056, Texas Government Code. sec.187.19. Show Compliance Proceeding. Pursuant to the Medical Practice Act, sec.4.02, and the Administrative Procedure Act, Government Code, sec.2001.054, the following rules shall apply to show compliance proceedings. (1) Prior to institution of board proceedings to revoke, suspend, or take disciplinary action relating to a license or to involuntarily modify restrictions on a license, the physician shall be given an opportunity to show compliance with all requirements of law for the retention of an unrestricted license either in writing or through a personal appearance at an informal meeting with one or more representatives of the board at the option of the licensee. (2) An opportunity to show compliance under paragraph (1) of this subsection shall not be required prior to a temporary suspension under the Medical Practice Act, sec.4.13, or in accordance with the terms of an agreement between the board and a licensee. (3) The opportunity to show compliance under this section shall be extended to a licensee in writing by certified mail -return receipt requested, overnight or express mail, or registered mail, to the last mailing address of the licensee or the licensee's attorney on file with the board. (4) Prior to a show compliance proceeding under this section, the licensee shall be provided with a brief written statement of the nature of the allegations to be addressed at the show compliance proceeding along with a brief written statement of the provisions of the Act which may be grounds for board Procedure disciplinary action. These statements shall be provided to the licensee by certified mail-return receipt requested, overnight or express mail, or registered mail to the last mailing address of the licensee or the licensee's attorney on file with the board. The licensee shall also be provided with written notice of the time, date, and location of the show compliance proceeding and the rules governing the proceeding by certified mail-return receipt requested, overnight or express mail, or registered mail, to the last mailing address of the licensee or the licensee's attorney on file with the board. (5) A licensee shall be afforded an opportunity to show compliance with the law as provided for under this section; however, a licensee's refusal or failure to take such an opportunity when offered, or when scheduled with proper notice to the licensee, shall not require that an additional show compliance opportunity be made available. In the discretion of the board's representative(s) an additional show compliance opportunity may be afforded to a licensee who refused a previous opportunity or failed to attend a scheduled show compliance proceeding. (6) One or more members of the board or a district review committee shall conduct the show compliance proceeding as the board's representative(s). When a board member and a district review committee member conduct a show compliance proceeding, the board member shall serve as chairman of the proceeding. In the event that the representatives consist of two board members or two district review committee members, the representative who has seniority on the board or committee shall serve as the chairman of the proceeding. In the event a public member of the board or a district review committee serves as the only board representative in such a proceeding, a board consultant or the board's executive director, if the executive director is a physician, may serve as a medical advisor to the representative. (7) The show compliance proceeding shall allow: (A) the board staff to present a synopsis of the allegations and the facts which the board staff reasonably believes could be proven by competent evidence at a hearing; (B) the licensee to reply to the board staff's presentation and present facts the licensee reasonably believes could be proven by competent evidence at a hearing; (C) presentation of evidence by the staff and the licensee which may include medical and office records, x-rays, pictures, film recordings of all kinds, audio and video recordings, diagrams, charts, drawings, and any other illustrative or explanatory materials which in the discretion of the board's representative(s) are relevant to the proceeding; (D) representation of the licensee by counsel; (E) presentation of oral or written statements by the licensee or the licensee's counsel; (F) presentation of oral or written statements or testimony by witnesses; and, (G) questioning of witnesses. (8) The board's representative(s) shall exclude from the show compliance proceeding all persons except witnesses during their testimony or presentation of statements, the licensee, the licensee's attorney or representative, board members, district review committee members, and board staff. (9) During the show compliance proceeding, the board's legal counsel or a representative of the Office of the Attorney General shall be present to advise the board's representative(s) or the board's employees. (10) Except with the agreement of the licensee, during the deliberations of the board's representative(s) at a show compliance proceeding, the board representative(s) shall exclude the board staff who presented the allegations and facts related to the complaint against the licensee, the licensee, the licensee's attorney or representative, the complainant, witnesses, and the general public. A board legal counsel or representative of the Office of the Attorney General shall be available to assist the representative(s) in their deliberations. (11) After a show compliance proceeding has been held, the staff of the board and the board's representative(s) shall be subject to the ex parte provisions of the Administrative Procedure Act with regard to the contacts with board members and administrative law judges concerning the case. (12) To the extent possible, board members and district review committee members are required to serve as representatives at show compliance proceedings an equal number of times during a calendar year. In the event a board member or district review committee member has a complaint regarding the frequency or infrequency of service as a representative required for any member, the complaint may be routed in writing to the Director of Hearings for the board who shall then bring the complaint to the attention of the Disciplinary Process Review Committee for a resolution by a majority vote of the committee. (13) The show compliance proceeding may be held in conjunction with and simultaneously with an informal settlement conference held pursuant to Section 187.24 of this title (relating to Informal Disposition). (14) The board's representative(s) may call upon the board staff at any time for assistance in conducting the show compliance proceeding. (15) The board's representative(s) shall prohibit or limit access to the board's investigative file by the licensee, the licensee's attorney or representative, the complainant, witnesses, and the public consistent with the Medical Practice Act, sec.4.05(c). (16) At the conclusion of the show compliance proceeding, the board's representative(s) shall make recommendations for disposition of the complaint or allegations which may include recommendations of dismissal and closure of the related investigation. In the event a dismissal and closure of the investigation is not recommended, the representative(s) shall attempt to mediate the disputed matters and make a recommendation regarding the disposition of the case in the absence of a hearing under the provisions of applicable law concerning contested cases. (17) The licensee may have the show compliance proceeding recorded and reduced to writing at the licensee's expense after providing written notice to the Director of Hearings for the board at least one day in advance of the show compliance proceeding. Recording and transcribing equipment shall be provided by the licensee. Efforts to mediate the disputed matters or discussions concerning possible settlement options shall not be recorded. sec.187.24. Informal Disposition.
                      Pursuant to the Medical Practice Act, sec.4.02 and sec.4.025, and the Administrative Procedure Act, Government Code, sec.2001.056, the following rules shall apply to informal dispositions of any complaint or matter relating to the Act or of any contested case. (1) The board may make an informal disposition of any complaint or matter relating to the Act or of any contested case by stipulation, agreed order, agreed settlement, consent order, or default. (2) In the event the board makes such a disposition of a complaint, contested case, or other matter, the disposition shall be in writing and, if appropriate, the writing shall be signed by the licensee. (3) To facilitate the expeditious disposition of complaints or contested cases, the board may provide a licensee with an opportunity to attend an informal settlement conference. The informal settlement conference may be held in conjunction with and simultaneously with a show compliance proceeding held pursuant to sec.187.19 of this title (relating to Show Compliance Proceeding). (4) If the opportunity for an informal settlement conference is provided to a licensee, the licensee shall be provided with a brief statement of the nature of the allegations to be addressed at the conference along with a brief statement of the provisions of the Act which may be grounds for board disciplinary action. These statements shall be provided to the licensee by certified mail-return receipt requested, overnight or express mail, or registered mail, to the last mailing address of the licensee or the licensee's attorney on file with the board. The licensee shall also be provided with written notice of the time, date, and location of the conference and the rules governing the proceeding by certified mail-return receipt requested, overnight or express mail, or registered mail, to the last mailing address of the licensee or the licensee's attorney on file with the board. (5) One or more members of the board or a district review committee shall conduct the informal settlement conference as the board's representative(s). When a board member and a district review committee member conduct such a conference, the board member shall serve as chairman of the conference. In the event that the representatives consist of two board members or two district review committee members, the representative who has seniority on the board or committee shall serve as the chairman of the conference. In the event a public member of the board or a district review committee member serves as the only board representative in such a conference, a board consultant or the board's executive director, if the executive director is a physician, may serve as a medical advisor to the representative. (6) The informal settlement conference shall allow: (A) the board staff to present a synopsis of the allegations and the facts which the board staff reasonably believes could be proven by competent evidence at a hearing; (B) the licensee to reply to the board staff's presentation and present facts the licensee reasonably believes could be proven by competent evidence at a hearing; (C) presentation of evidence by the staff and the licensee which may include medical and office records, x-rays, pictures, film recordings of all kinds, audio and video recordings, diagrams, charts, drawings, and any other illustrative or explanatory materials which in the discretion of the board's representative(s) are relevant to the proceeding; (D) representation of the licensee by counsel; (E) presentation of oral or written statements by the licensee or the licensee's counsel; (F) presentation of oral or written statements or testimony by witnesses; and, (G) questioning of witnesses. (7) The board's representative(s) shall exclude from the informal settlement conference all persons except witnesses during their testimony or presentation of statements, the licensee, the licensee's attorney or representative, board members, district review committee members, and board staff. (8) During the informal settlement conference, the board's legal counsel or a representative of the Office of the Attorney General shall be present to advise the board's representative(s) or the board's employees. (9) Except with the agreement of the licensee, during the deliberations of an appropriate settlement, the board's representative(s) at an informal settlement conference shall exclude the board staff which presented the allegations and facts related to the complaint against the licensee, the licensee, the licensee's attorney or representative, the complainant, witnesses, and the general public. A board legal counsel or representative of the Office of the Attorney General shall be available to assist the representative(s) in their deliberations. (10) After an informal settlement conference has been held, the staff of the board and the board's representative(s) shall be subject to the ex parte provisions of the Administrative Procedure Act with regard to contacts with board members and administrative law judges concerning the case. (11) To the extent possible, board members and district review committee members are required to serve as representatives at informal settlement conferences an equal number of times during a calendar year. In the event a board member or district review committee member has a complaint regarding the frequency or infrequency of service as a representative required for any member, the complaint may be routed in writing to the Director of Hearings for the board who shall then bring the complaint to the attention of the Disciplinary Process Review Committee for a resolution by a majority vote of the committee. (12) At the informal settlement conference, the board's representative(s) will attempt to mediate disputed matters, and the board's representative(s) may call upon the board staff at any time for assistance in conducting the informal settlement conference. (13) The board's representative(s) shall prohibit or limit access to the board's investigative file by the licensee, the licensee's attorney or representative, the complainant, witnesses, and the public consistent with the Medical Practice Act, sec.4.05(c). (14) Although notes may be made by the participants, mechanical or electronic recordings shall not be made of settlement discussions, mediation efforts, and the informal settlement conference. (15) The settlement conference shall be informal and shall not follow the procedures established under this title for contested cases. (16) At the conclusion of the informal settlement conference, the board's representative(s) shall make recommendations for disposition of the complaint or allegations which may include recommendations of dismissal and closure of the related investigation. In the event a dismissal and closure of the investigation is not recommended, the representative(s) shall make a recommendation regarding the disposition of the case in the absence of a hearing under the provisions of applicable law concerning contested cases. The board's representative(s) may make recommendations to the licensee for resolution of the issues. Such recommendations may include any disciplinary actions authorized by the Act and such other reasonable restrictions or remedial actions in the public interest. These recommendations may be subsequently modified by the board's representative(s) or staff based on new information, a change of circumstance, or to expedite a resolution in the interest of protecting the public. The board's representative(s) may also conclude that the board lacks jurisdiction or that a violation of the Act or the board's rules has not been established, and may recommend that the investigation be closed or referred for further investigation. These recommendations may be adopted, modified, or rejected by the duly convened board or through the duly authorized actions of the board's Disciplinary Process Review Committee. (17) The licensee may either accept or reject the settlement recommendations proposed by the board's representative(s). If the licensee accepts the recommendations, the licensee shall execute the settlement agreement in the form of an agreed order or affidavit as soon thereafter as is practicable. If the licensee rejects the proposed agreement, the matter shall be referred to the board's staff for appropriate disposition as directed by the board's representative(s) or the Disciplinary Process Review Committee. The secretary- treasurer or executive director may also schedule the matter for a hearing as described in Subchapter C of this chapter (relating to Hearings). (18) Following acceptance and execution by the licensee of the settlement agreement, the agreement shall be submitted to the board for approval. (19) The following relate to consideration of an agreed disposition by the board. (A) Upon an affirmative majority vote, the board shall enter an order approving the proposed settlement agreement. The order shall bear the signature of the president of the board or of the officer presiding at such meeting and shall be referenced in the minutes of the board. (B) If the board does not approve a proposed settlement agreement, the licensee shall be so informed and the matter shall be referred to the board staff for appropriate action to include dismissal, closure, further negotiation, further investigation, an additional informal settlement conference or a hearing. (C) To promote the expeditious resolution of any complaint or matter relating to the Act or of any contested case, with the approval of the executive director, a member of the Executive Committee, or the Disciplinary Process Review Committee, board staff may present a proposed settlement agreement to the board for consideration and acceptance without conducting an informal settlement conference. If the board does not approve such a proposed settlement agreement, the licensee shall be so informed and the matter shall be referred to the board staff for appropriate action to include dismissal, closure, further negotiation, further investigation, an informal settlement conference or a hearing. 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 28, 1994. TRD-9435322 Bruce A. Levy, M.D., J.D. Executive Director Texas State Board of Medical Examiners Earliest possible date of adoption: March 7, 1994 For further information, please call: (512) 834-7728, Ext. 402 Chapter 198. Unlicensed Practice 22 TAC sec.198.1 The Texas State Board of Medical Examiners proposes new s198.1, concerning the unlicensed practice of medicine. The proposed new section will formalize the procedure for handling complaints made to the board regarding the unlicensed practice of medicine or the performance of any medical procedure without the required permit, registration, or license. Tim Weitz, general counsel, has determined that there will be no fiscal implications as a result of enforcing or administering the section. Mr. Weitz also has determined that the public benefit anticipated as a result of enforcing the section as proposed will be to handle complaints regarding unlicensed practice of medicine in an efficient and expeditious manner. 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 Pat Wood, P.O. Box 149134, Austin, Texas 78714-9134. A public hearing will be held at a later time. The new section is proposed under Texas Civil Statutes, Article 4495b, which provide the Texas State Board of Medical Examiners with the authority to make rules, regulations, and bylaws not inconsistent with this act as may be necessary for the governing of its own proceedings, the performance of its duties, the regulation of the practice of medicine in this state, and the enforcement of this act. Cross Index-Article 4495b, sec.3.07. sec.198.1. Unlicensed Practice. (a) In the absence of board jurisdiction, complaints to the board regarding the unlicensed practice of medicine or the performance of any medical procedure without the required permit, registration, or license, shall be routed to one or more of the following for appropriate handling including further investigation, prosecution, and/or injunctive relief: (1) the Office of the Attorney General; (2) the Texas Department of Public Safety; (3) the United State Drug Enforcement Administration; (4) the Texas Department of Health; (5) the local district or county attorney's office with jurisdiction; (6) the local law enforcement agency; (7) any state or federal licensing board or other agency which maintains jurisdiction over a person who is the subject of the complaint. (b) In any instance in which the board may have concurrent jurisdiction with another agency over the subject of a complaint related to the unlicensed practice of medicine or the performance of any medical procedure without the required permit, registration or license, the board may pursue further investigation and appropriate disciplinary action before or after routing the complaint to such an agency. (c) The routing of a complaint to another agency as provided by this chapter shall be in writing unless to do so is likely to jeopardize any further investigation, prosecution, or injunctive relief. 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 28, 1994. TRD-9435325 Bruce A. Levy, M.D., J.D. Executive Director Texas State Board of Medical Examiners Earliest possible date of adoption: March 7, 1994 For further information, please call: (512) 834-7728, Ext. 402 Chapter 199. Public Information 22 TAC sec.sec.199.1-199.3 The Texas State Board of Medical Examiners proposes new ssec.199.1-199.3, concerning public information. The proposed new sections explain the duties of the Public Information Committee and outlines the rules regarding requests to speak at board meetings and requests for written information. Tim Weitz, general counsel, 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. Weitz 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 to better inform the public of opportunities to speak at board meetings and request information from the board, as well as to better identify the functions of the Public Information Committee. 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 Pat Wood, P.O. Box 149134, Austin, Texas 78714-9134. A public hearing will be held at a later time. The new sections are proposed under Texas Civil Statutes, Article 4495b, which provide the Texas State Board of Medical Examiners with the authority to make rules, regulations, and bylaws not inconsistent with this act as may be necessary for the governing of its own proceedings, the performance of its duties, the regulation of the practice of medicine in this state, and the enforcement of this act. Cross Index-Article 4495b, sec.2.09(a) and sec.2.09(z). sec.199.1. Public Information Committee. (a) The board shall maintain the Public Information Committee as a standing and permanent committee of the board. (b) As set forth in Chapter 161 of this title, the responsibilities and authority of the Public Information Committee include those duties and powers set forth below and in this chapter, as well as such other responsibilities and authority which the board from time to time may delegate: (1) develop informational brochures for distribution to the public; (2) review and make recommendations to the board in regard to press releases, newsletters, and other publications; (3) exhibit display booths at conventions; (4) study and make recommendations to the board regarding all aspects of public information or public relations; (5) make recommendations to the board regarding matters brought to the attention of the Public Information Committee. sec.199.2. Requests to Speak. (a) To provide the public with a reasonable opportunity to appear before the board and to speak regarding issues under the board's jurisdiction, written requests to speak may be submitted to the attention of the Public Information Committee at the board's current mailing address. (b) A requester will be notified in writing of the date and time for an opportunity to appear and speak before the Public Information Committee. The time allotted for any particular speaker will be determined in the discretion of the chairman or presiding member of the committee based on the subject matter and available time. (c) The Public Information Committee shall make any necessary recommendations to the board regarding matters brought to the committee's attention by the public and shall report matters of interest to the board through the committee minutes. sec.199.3. Requests for Information. (a) The public may obtain copies of board newsletters, brochures, pamphlets, press releases and other board publications by written request to the attention of the Public Information Committee at the board's current mailing address. (b) Public records of the board may be obtained to the extent allowed by law through a written request pursuant to the Open Records Act of Texas submitted to the attention of the Director of Hearings/Records Custodian at the board's current mailing address. (c) The provision of written materials or records provided pursuant to a request made under this chapter shall be subject to applicable charges under this title and state law. 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 28, 1994. TRD-9435324 Bruce A. Levy, M.D., J.D. Executive Director Texas State Board of Medical Examiners Earliest possible date of adoption: March 7, 1994 For further information, please call: (512) 834-7728, Ext. 402 Part XIV. Texas Optometry Board Chapter 279. Interpretations 22 TAC sec.279.5 The Texas Optometry Board proposes an amendment to sec.279.5, concerning basic competence examination findings that must be performed by the optometrists and which cannot be delegated to an assistant. With a legislative change to sec.5.12 of the Texas Optometry Act during the 73rd Legislature (Texas Civil Statutes, Article 4552), this rule is required to remove one step that is no longer a part of the basic competence examination. Lois Ewald, executive director, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. Ms. Ewald 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 examination given to the patient will be given by the optometrist in areas requiring professional judgment, and not delegated to staff members. The rule clarifies those specific examination requirements. 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 Lois Ewald, Executive Director, Texas Optometry Board, 9101 Burnet Road, Suite 214, Austin, Texas 78758. The amendment is proposed under Texas Civil Statutes, Article 4552, sec.2.14, which provide the Texas Optometry Board with the authority to adopt procedural and substantive rules. sec.279.5. Board Interpretation Number Five. (a)-(d) (No change.) (e) The optometrist or therapeutic optometrist shall, in the initial examination of the patient, make and record, if possible, the following findings of the condition of the patient, but not necessarily limited to the following findings: (1)-(4) (No change.) (5) assessment of binocular functions; and (6) amplitude or range of accommodation.
                        [; and] [(7) amplitude or range of convergence.] (f) (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 25, 1994. TRD-9435291 Lois Ewald Executive Director Texas Optometry Board Earliest possible date of adoption: March 7, 1994 For further information, please call: (512) 835-1938 Part XXII. Texas State Board of Public Accountancy Chapter 501. Professional Conduct Other Responsibilities and Practices 22 TAC sec.501.44 (Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas State Board of Public Accountancy or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas State Board of Public Accountancy proposes the repeal of sec.501. 44, concerning Soliciting. The rule is being simultaneously repealed on an emergency basis in the same issue of the Texas Register. William Treacy, executive director, has determined that for the first five-year period the repeal is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the repeal. Mr. Treacy also has determined that for each year of the first five years the repeal is in effect the public benefit anticipated as a result of enforcing the repeal will be to remove a rule superseded by federal case law. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the repeal as proposed. The repeal is proposed under Texas Civil Statutes, Article 41a01, sec.6, which provide the Texas State Board of Public Accountancy with the authority to adopt such rules as may be necessary or advisable to carry in effect the purposes of the law, and sec.21, which lists those actions or omissions for which the board may take disciplinary action against its licensees. The repeal implements Texas Civil Statutes, Article 41a-1, sec.6 and sec.21. 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-9435382 William Treacy Executive Director Texas State Board of Public Accountancy Earliest possible date of adoption: February 28, 1994 For further information, please call: (512) 505-7066 Chapter 513. Registration Registration of Partnerships 22 TAC sec.513.34 The Texas State Board of Public Accountancy proposes an amendment to sec.513.34, concerning Limited Liability Companies. The proposed amendment brings the rule into compliance with legislation effective September 1, 1993, and clarifies which application form is being referenced. William Treacy, executive director, has determined that for the first five-year period the rule is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering this rule. Mr. Treacy also has determined that during the first five-year period the rule is in effect, the anticipated public benefit as a result of enforcing or administering the rule will be a rule consistent with the controlling legislation and a clarified rule. There is no effect on small businesses. There is no anticipated economic cost to persons required to comply with the section as proposed. Comments on the proposal may be submitted to J. Randel (Jerry) Hill, General Counsel, 333 Guadalupe, Tower III, Suite 900, Austin, Texas, 78701-3942. The amendment is proposed under Texas Civil Statutes, Article 41a-1, sec.6, which provide the Texas State Board of Public Accountancy with the authority to make such rules as may be necessary to carry in effect the purposes of the law, sec.17, which allows partnerships to practice accountancy if one of the partners is a corporation, and sec.20, which allows corporations to engage in the practice of accountancy. The rule implements Texas Civil Statutes, Article 41a-1, ssec.6, 17, and 20. sec.513.34. Limited Liability Company. (a) In addition to other requirements of these sections with respect to the name of a professional
                          limited liability company (PLLC) engaged in the practice of public accountancy, the name of each PLLC registered with this board must include one of the following designations: (1) "Professional Limited Liability Company"
                            ["Limited"]; (2) "PLLC"
                              ["Ltd."]; or (3) "P.L.L.C."
                                ["LC"]. [(4) "LLC"; or [(5) Limited Liability Company.] (b) If only one licensee is involved in the practice of the PLLC it cannot use the term "and company", "and associates," or any other term which is misleading to the general public as a part of the name. However, the term "and company" or "and associates" may be used as long as the names of the employees licensed by this board are shown on page three of the application for registration as a Professional Limited Liability Company. (c) The words "professional limited liability company" or "PLLC" or "P.L.L.C."
                                  ["LLC"] must appear in or with the firm name each time it is used. (d) A limited liability company formed before September 1, 1993, that complied with the Texas Limited Liability Company Act, Article 2.03 or Article 7.03, sec.A, on the date of formation, is not required to change its name and must include one of the following designations: (1) "Limited Company; (2) "L.C."; (3) "LC"; (4) "LLC"; (5) "L.L.C."; (6) Ltd. Co.; (7) Limited Liability Company. 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-9435321 William Treacy Executive Director Texas State Board of Public Accountancy Earliest possible date of adoption: February 28, 1994 For further information, please call: (512) 505-7066 TITLE 30. ENVIRONMENTAL QUALITY Part I. Texas Natural Resource Conservation Commission Chapter 265. Procedures Before Public Hearings Subchapter C. Special Procedures for Freezing the Process 30 TAC sec.sec.265.21-265.35 The Texas Natural Resource Conservation Commission (TNRCC or Commission) proposes new Subchapter C, sec.sec.265.21-265.35, concerning Special Procedures for Freezing the Process; new Subchapter D, sec.sec.265.36-265.49, concerning Discovery in Hearings Held Under Subchapter C; and new Subchapter E, sec.sec.265. 50-265.55, concerning Special Sanctions Rules Relating to Freezing the Process. These rules were based on recommendations of the Permit Hearing Task Force, a group of representatives from environmental, industry-related and other special interest groups assembled to consider ways in which the hearings process could be streamlined and made more fair. Concurrent with the proposed amendments is the proposed repeal of Chapter 274, Complex Hearing Rules. The significant aspects of Subchapter C provide for an expedited hearings process that freezes the application prior to hearing for hazardous waste, industrial solid waste, municipal solid waste, and air quality applications, and other hearings designated by the examiner on or before the date jurisdiction is established as specified in sec.265.21(a). This subsection specifies as well that applications may either be included in, or excluded from applicability of these rules by agreement of the parties with examiner approval or for good cause by the examiner. The first step in this expedited hearings process, sec.265.22(a)(1), requires the Executive Director after completing technical review to prepare a proposed permit based on the application submitted and to develop an initial position recommending issuance, issuance with additional or different permit provisions, or denial of the permit with a document summarizing the basis for denial. Section 265.22(a)(2) provides that while the Executive Director may subsequently change his position based on evidence adduced in the hearing or other new information, he shall notify all parties and they will be afforded an opportunity to respond. Section 265.23 provides for a first preliminary hearing at which the examiner will establish a procedural schedule and deal with other preliminary matters. At this first preliminary hearing the applicant will respond to the Executive Director's position and support the proposed permit by submitting all proposed findings of fact that the applicant believes will support the application's issuance. Section 265.24 sets out a procedural schedule to be implemented for hearings conducted under Subchapter C. While the scheduled periods are presumptively the maximum time limits, they may be extended when necessary in exceptional circumstances for good cause by the Examiner or by agreement of the parties with approval of the Examiner for good cause. There are three scheduled discovery periods, as follows: following the first preliminary hearing, sec.265.24(a) provides for a first discovery period lasting 60-90 days. On the last day of the first discovery period the protestants will identify issues based on the proposed findings of fact submitted by the applicant, and protestants may also raise new issues and proposed findings of fact in accord with sec.265.24(b). A second discovery period lasting 60-90 days allows for the applicant to conduct discovery of the protestants, culminating in the applicant's response to issues raised by protestants and, if desired, amendment to the application and proposed findings of fact in accord with sec.265.24(d) and sec.265.25(a)(1). Following the second discovery period the Examiner will determine pursuant to sec.265.25(a)(1) whether the degree and nature of amendments to the application require remand to the Executive Director for further technical review and notice. If the application is not remanded the application is frozen and no further amendments are allowed as found in sec.265(a)(2). The sole exception for late amendments is located in sec.265.25(b)(3), which allows the applicant to respond with a minor amendment and new proposed findings if protestants are allowed for good cause to raise a new issue regarding a proposed finding of fact which was not previously raised by the protestants as a concern or contested item on their issue list. The reason for inclusion of sec.265.25(b)(3) is to provide a mechanism for protestants to raise major environmental, site-specific problems which were not known to them at the end of the first discovery period. Preliminary discussions with the regulated community reveals their concern that this provision will allow protestants to withhold relevant issues. However, many of these entities have indicated they would not object to the provision if they can respond to late issues with a major amendment. The Office of Hearings Examiners recommends allowing only minor amendments in response, because allowing major amendments would in effect "thaw" the process. Further, not allowing major amendments will encourage applicants to assure there is no major environmental, site-specific problem prior to filing applications. Section 265.24(e) provides for a third discovery period of 30-50 days to follow the freeze of the application. Section 265.36(a)(3) specifies that parties may discover matters relative to any changes by the applicant and by the staff in response to the applicant, as well as the staff's position regarding protestant's issues. Within seven-ten days of the conclusion of the third discovery period and prior to final preparation for hearing, sec.265.24 provides for a prehearing conference at which the Examiner will determine the stipulated issues and contested issues that remain, identifying these in a prehearing order. Section 265.26 and sec.265.27 provide procedures for identification and limiting of number of witnesses. Section 265.28 provides for rebuttal testimony by the applicant only, except when the Executive Director presents evidence which could not have been reasonably anticipated by protestants when they presented their case. In the latter case protestants may also present rebuttal testimony. Section 265.29 provides for use of prefiled testimony as directed by the examiner or by election of individual parties with notification. Section 265.30 specifies situations in which the testimony may be supplemented at the discretion of the examiner. Section 265.31 and sec.265. 32 provide procedures for subpoena of witnesses and production of documentary evidence. Section 265.33 makes witnesses subject to remedies available in district court, if after being subpoenaed such witnesses fail to appear at the hearing. Section 265.34 allows the Examiner to exclude irrelevant, immaterial, or unduly repetitious evidence and to admit evidence not otherwise admissible if it is of a type commonly relied upon by reasonably prudent men. Section 265. 35 allows the examiner to permit additional evidence at any time if it appears necessary to the administration of justice. Subchapter D, Discovery in Hearings Held under Subchapter C, and Subchapter E, Special Sanctions Rules Relating to Freezing the Process, are essentially the same as the sanction and discovery rules concurrently being repealed in Chapter 274, with the exception of proposed sec.265.36 and sec.265.37. While voluntary discovery may be sought at any time by any party pursuant to subsection (c) of sec.265.36, the rule relates to the three discovery period previously discussed, identifying which parties may discover against whom for each period. Discovery is limited, in the third period, to scope of issues as provided in sec.265.24(b) and the applicant's response as provided in sec.265. 24(d) of the chapter. The examiner has discretion to limit or expand discovery and to identify which of the time periods apply to parties not fitting into the categories discussed above. Subsection (b) of the rule also provides guidelines for discovery from the Executive Director. Forms to be used as guidelines are being developed for use for discovery under Subchapter D. These forms, which include an Agreed Protective Order, Agreement for Entry with Release and Indemnification, may be obtained by contacting Claire Arenson at the address referenced later in this preamble or by calling (512) 463-7875. Stephen Minick, Division of Budget and Planning, has determined that for the first five years these sections as proposed are in effect there are no significant fiscal implications anticipated for state government, local government or small businesses as a result of administration of the sections. The application of these rules to specific contested cases may have some effects on costs of individual proceedings. Generally, the effects will be to reduce the time required and the total costs of contested proceedings, however, these potential cost savings cannot be determined at this time. Mr. Minick also has determined that for each year of the first five years the new rules are in effect the public benefit anticipated as a result of enforcement of and compliance with the rules will be a more rapid resolution of contested case hearings. There are no economic costs anticipated to persons who are required to comply with the rules as proposed. Comments on the proposal may be submitted to TNRCC, Attention: Claire Arenson, Chief Hearings Examiner, Office of Hearings Examiners, P.O. Box 13087, Austin, Texas 78711-3087. The new sections are proposed under Water Code, sec.5.103 and sec.5.105, which authorize the Commission to adopt any rules necessary to carry out its powers and duties under the Code and other laws of this state and to establish and approve all general policy of the Commission. The new rules implement the provisions of Water Code, sec.5.103(b) and Health and Safety Code, sec.382.029, which authorize the Commission to adopt procedural rules to be followed in a commission hearing. sec.265.21. Applicability. (a) The provisions of this subchapter shall apply to permit hearings in the areas of hazardous waste, industrial solid waste, municipal solid waste, and air quality, as well as to other hearings designated by the examiner on or before the date jurisdiction is established. Except by agreement of the parties, the provisions of this subchapter do not apply to permit hearings at which jurisdiction is established prior to the effective date of this subchapter. An application may either be included in, or excluded from, the applicability of this subchapter or any portion of this subchapter by agreement of the parties, with the approval of the examiner, or, for good cause, by the examiner. Good cause may include without limitation a finding that the lack of complexity of a proceeding in a hearing does not warrant the implementation of all or a portion of this subchapter. (b) The provisions of other chapters of this title and other subchapters of this chapter are inapplicable to proceedings to which this subchapter applies only to the extent that such provisions conflict with this subchapter. sec.265.22. Procedures Applicable to the Executive Director and Public Interest Counsel. (a) Executive Director. (1) Evaluation and assessment to issue or to deny. After the executive director has conducted his technical review of an application, the executive director shall prepare a proposed permit based on the application submitted. The executive director shall develop an initial position recommending issuance, issuance with additional or different permit provisions, or denial of the permit. If the executive director recommends issuance with additional or different permit provisions, he shall specify those provisions in a document separate from the proposed permit. If the executive director's recommendation is to deny, he shall issue a document summarizing the basis for his position. The proposed permit and additional documents prepared by the executive director shall be forwarded to the Chief Clerk's Office for filing and setting. This provision does not impair the executive director's ability to return applications pursuant to sec.281.18 and s281.19 of this title, (relating to Applications Returned and Technical Review). (2) The executive director may change his position based on evidence or other new information. The executive director shall timely notify all parties on the record or in writing if he changes his opinion and the other parties shall be afforded the opportunity to respond. (b) Public Interest Counsel. The Public Interest Counsel shall comply with all time frames and procedures required of protestants pursuant to this chapter. sec.265.23. First Preliminary Hearing. After the required notice has been given and requests for hearing have been received, an examiner will convene a public hearing to take jurisdiction over the application, accept public commentary, designate parties, and set a discovery and procedural schedule. At this hearing the examiner shall address the jurisdiction of the commission over the proceeding. If jurisdiction is established, the following shall occur: (1) The examiner shall accept public commentary and name the parties. (2) The examiner shall set acceptable methods of service of pleadings, motions, and discovery. (3) The applicant shall submit proposed findings of fact. (4) The applicant shall identify what constitutes the application and shall provide a total of two copies of the permit application, for uses by all of the protestants in the case. These copies shall include all notices of deficiency and the applicant's response to those notices. (5) The executive director and the applicant shall provide their witness lists. (6) The parties shall raise claims of confidentiality of portions of the application or agency files in a request for a protective order. (7) The examiner shall establish a procedural schedule for the hearing consistent with the provisions of sec.265.24 of this title (relating to Procedural Schedule). sec.265.24. Procedural Schedule. (a) The following procedural schedule shall be implemented for hearings conducted pursuant to this subchapter: (1) First Discovery Period. The first discovery period shall extend 60 to 90 days beginning immediately after the date jurisdiction is established, as set out in full in sec.265.36(a) (1) of this title (relating to Discovery in Hearings Held under Subchapter C). (2) Protestant's List of Issues. On the last day of the first discovery period the protestants shall identify issues based on the proposed findings of fact submitted by the applicant pursuant to sec.265.23(3) of this title (relating to First Preliminary Hearing), and shall include a statement as to the basis of the protestant's dispute on each issue. In addition, on the last day of the first discovery period, protestants may also raise new issues and proposed findings of fact. (b) Second Discovery Period. The second discovery period shall extend 60 to 90 days beginning immediately after the protestants' list of issues, as set out in full in sec.265.36(a)(2) of this title (relating to Discovery in Hearings Held under Subchapter C). (c) Applicant's Response. The applicant may respond to issues raised by the protestants no later than the last day of the second discovery period. The applicant may amend its application and proposed findings of fact at this time in response to the issues raised by the other parties. (d) Third Discovery Period. This period shall extend 30 to 50 days immediately following the conclusion of the second discovery period, and shall be limited in accordance with s265.36(a)(3) of this title (relating to Discovery in Hearings Held under Subchapter C). (e) Prehearing Meeting. A prehearing meeting shall be held within three working days of the conclusion of the third discovery period. The prehearing meeting is a meeting of the parties without the examiner. At this meeting, the parties shall prepare for submission of findings of fact, stipulations, and exhibits to the examiner at the prehearing conference. The parties may have the proceedings transcribed. (f) Prehearing Conference and Order. Within four-seven days of the prehearing meeting, the Examiner will hold a prehearing conference. Consistent with sec.265.25(b) of this title (relating to Freezing the Process), the examiner shall determine the issues which remain and which findings of fact have been stipulated. Exhibits shall be submitted and marked. At hearing all objections to exhibits, which could have been cured if timely raised, shall be deemed waived if they were not raised during the prehearing conference. Parties wishing to offer exhibits at any time subsequent to the prehearing conference shall notify all other parties as soon as practicable of intention to seek leave to submit additional exhibits. The examiner has the discretion to permit the offer of exhibits not submitted at the prehearing conference for good cause. Good cause includes the need for one party to prepare an exhibit in response to another party's exhibit first seen at the prehearing conference, the need to prepare an exhibit in response to the direct testimony of another party and other cases which are justified by the party seeking to submit the exhibit. The examiner shall set final case time limitations at or before the prehearing conference. The examiner shall incorporate these determinations in a written prehearing order. (g) Final Preparation. Final preparation for hearing shall extend no more than 14 calendar days from the date of issuance of the prehearing order. (h) Evidentiary Hearing. The evidentiary hearing shall extend no more than 30 calendar days in duration immediately following final preparation for hearing, subject to extension by the Examiner for good cause. The examiner shall set reasonable time limitations for the presentation of the cases of all parties in order to limit the hearing to this time period. (i) Proposal for Decision. The Examiner shall issue a Proposal for Decision within 45 to 60 days from the conclusion of the evidentiary hearing. (j) The scheduled periods set out in this subsection are presumptively the time limits but they may be extended in exceptional circumstances for good cause by the Examiner or by agreement of the parties with approval of the Examiner for good cause. Good cause may include without limitation a finding that the complexity of a proceeding warrants extension of one or more of the scheduled periods. sec.265.25. Freezing the Process. (a) The Application. (1) In accordance with sec.265.24(d) of this title (relating to Procedural Schedule), the applicant may amend its application and proposed Findings of Fact in response to issues raised by other parties. The applicant may respond by amendment and new proposed findings of fact. Given the nature and degree of amendment, the application may be remanded by the examiner to the executive director for further technical review. The application may be subject to additional notice, discovery and hearing requirements. (2) Subsequent to the time for filing a response pursuant to sec.265.24(d) of this title (relating to Procedural Schedule), the applicant may not amend its application or proposed Findings of Fact to address issues timely and adequately identified by the protestants pursuant to sec.265.24(b) of this title. (b) Narrowing Issues. At the prehearing conference, the examiner shall require all parties to address stipulating to each of the applicant's proposed findings of fact. The applicant's proposed findings shall be treated as follows: (1) A proposed finding stipulated by all parties shall be regarded as established. (2) A proposed finding that has not been stipulated, was on the other parties' issue list, and for which the other parties have a reasonable basis for continuing to contest the issue, may be raised as an issue at the hearing. The reasonableness of the other parties' basis for contesting the issue may receive further inquiry by the examiner during the prehearing conference. If the examiner determines that the other parties have not shown a reasonable basis for contesting the finding and the executive director did not raise the issue as a basis for permit denial, the examiner shall deem the finding stipulated. (3) A proposed finding of fact to which the protestants refuse to stipulate, but which was not on the protestants' issue list, shall receive further inquiry by the examiner. Upon a showing of good cause, with consideration of whether the protestants' position reasonably acts as a surprise to the applicant, the issue may be raised at the hearing in which event the applicant may respond to the new issue with an application minor amendment and new proposed Findings of Fact. sec.265.26. Identification of Witnesses. The examiner shall require the parties to exchange lists of witnesses who will be called to testify at the evidentiary hearing. The witness lists shall include the names and addresses of the witnesses and a brief description of the subject matter of their anticipated testimony. (1) The witness lists of the applicant and the executive director shall be submitted on the day jurisdiction is established over the proceeding, and may be amended by these parties to address the protestants' list of issues within ten days after close of the second discovery period. (2) The witness list of the protestants shall be submitted when the protestants list their issues. The witness lists of the protestants and the executive director may be amended to address the applicant's response within ten days of the applicant's response. The applicant shall have sufficient time, as determined by the examiner, to take discovery on newly added protestant witnesses. (3) The applicant may call rebuttal witnesses not identified on its witness list only on a showing of good cause and after the parties are afforded a reasonable opportunity to conduct discovery. (4) In addition to amendments authorized by paragraphs (1)-(3) of this subsection, the examiner may allow a party to amend its witness list upon a showing of good cause. There is a continuing obligation to update witness lists as soon as the need for and identity of the new witness is reasonably known. sec.265.27. Limiting the Number of Witnesses. At the request of a party or on the examiner's own motion, the examiner may reduce excessive numbers of witnesses identified pursuant to sec.265.26 of this title (relating to Identification of Witnesses) as follows: (1) The examiner may direct the party to do one of the following: (A) voluntarily reduce its listed witnesses to a specified number; or (B) provide a summary of the expected testimony of each witness sufficiently specific to show the need for the testimony. (2) The examiner may use the witness lists provided under this section to strike witnesses whose testimony would be unduly repetitious or irrelevant, or in order to render discovery and the hearing process manageable. (3) If a party fails or refuses to comply with the directions of the examiner, the examiner may limit or strike the testimony of witnesses called by the party in any reasonable manner. sec.265.28. Rebuttal. (a) The applicant, as the party with the burden of proof, is the only party allowed to present a rebuttal case as a matter of right. In all cases, the applicant shall be allowed to close with its rebuttal. (b) The protestants may present a rebuttal case when the executive director presents evidence which could not have been reasonably anticipated at the time the protestants presented their case. (c) Rebuttal cases must be presented within the time limitations set by the examiner in the prehearing order. sec.265.29. Prefiled Testimony. (a) Unless otherwise directed by the examiner, any party shall have the option to prefile all or any part of the testimony of all or any one of its witnesses. One party's election to prefile shall not control another party's decision regarding whether to prefile testimony. If a party decides to use prefiled testimony, it shall notify the other parties and the examiner at least 60 days before the evidentiary hearing begins, identifying the relevant witness(es). (b) The examiner may direct all parties to prefile their entire direct cases. If all direct testimony is prefiled, whether by examiner's order or by agreement of the parties: (1) No party shall be allowed to go beyond the scope of its prefiled testimony on direct examination; and (2) The examiner may limit or prohibit non-adverse cross-examination if unnecessary to the development of a complete evidentiary record. (c) The live presentation of prefiled testimony at the evidentiary hearing shall be limited to introductory material, corrections to the prefiled testimony, and a brief summary of not more than ten minutes. (d) The examiner shall set the deadline for the filing of prefiled testimony at a reasonable time before the evidentiary hearing. The factors the examiner shall consider include the complexity of the material, the expected length of the material, the number of witnesses or issues that are to be presented by prefiled testimony, and the acceptable method of presenting objections. sec.265.30. Supplementing Prefiled Testimony and Objections. (a) At the discretion of the examiner, prefiled testimony may be supplemented with the introduction of newly discovered evidence, or when it becomes obvious to the witness that the original prefiled testimony was false or incomplete, or when substantive evidence has been excluded as a result of the examiner's ruling on an objection to prefiled testimony. (b) If prefiled testimony is supplemented as provided in this section, the other parties may be afforded the opportunity to supplement their prefiled testimony or prefiled objections. Supplementation by the other parties shall be limited to those subjects which were supplemented by the original witness. sec.265.31. Subpoena of Witnesses and for the Production of Documentary Evidence. (a) On his own motion or on the written request of any party to a complex hearing pending before him, on a showing of good cause, and on deposit of sums as required by the Administrative Procedure Act and sec.263.34 of this title (relating to Evidence), the examiner shall issue a subpoena addressed to the sheriff or constable of the State of Texas, or any other person authorized to serve subpoenas as provided in the Texas Rules of Civil Procedure, Rule 178, to require the attendance of witnesses and the production of books, records, papers, or other objects as may be necessary and proper for the purposes of the proceedings. The Office of Hearings Examiners may develop a standard subpoena request form which the examiner may require the requesting party to complete and return as a prerequisite to issuance of a subpoena. (b) If a subpoena also commands the person to whom it is directed to produce books, papers, documents or tangible things designated therein, the examiner, on motion made reasonably and in any event at or before the time specified in the subpoena for compliance therewith, may: (1) quash or modify the subpoena if it is unreasonable and oppressive; or (2) condition denial of the motion to quash or modify upon the advancement by the person on whose behalf the subpoena is issued, of the reasonable costs of producing the books, papers, documents, or tangible things. sec.265.32. Form of Subpoena. The heading of the subpoena shall be "The Texas Natural Resource Conservation Commission." It shall state the style of the hearing, that the hearing is pending before the Texas Natural Resource Conservation Commission, the time and place at which the witness is required to appear, and the party at whose insistence the witness is summoned. It shall be signed by the examiner, but need not be under the seal of the commission and the date of issuance shall be noted thereon. It may be made returnable forthwith, or an any date for which hearing of the docketed matter may be set. It shall be addressed to any sheriff or constable of the State of Texas or other person authorized to serve subpoenas as provided in the Texas Rules of Civil Procedure, Rule 178. sec.265.33. Witness Shall Attend Hearing. Every witness summoned in any hearing shall attend the hearing from day to day, and from place to place, until discharged by the examiner or party summoning such witness. If any witness after being duly subpoenaed shall fail to attend, such witness may be subject to any remedies available through district court to the party summoning the witness. sec.265.34. Evidence. (a) In contested cases, irrelevant, immaterial, or unduly repetitious evidence will be excluded. (b) Whenever necessary to ascertain facts not reasonably susceptible of proof under the Texas Rules of Civil Evidence, evidence not admissible thereunder may be admitted, except where precluded by statute, if it is of a type commonly relied upon by reasonably prudent men in the conduct of their affairs. sec.265.35. Additional Testimony.
                                    When it appears to be necessary to the administration of justice, the examiner may permit additional evidence to be offered at any time. 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 31, 1994. TRD-9435405 Mary Ruth Holder Director, Legal Division Texas Natural Resource Conservation Commission Earliest possible date of adoption: March 7, 1994 For further information, please call: (512) 463-8069 Subchapter D. Discovery in Hearings Held Under Subchapter C 30 TAC sec.sec.265.36-265.49 The new sections are proposed under the Texas Water Code, sec.5.105, which provides the Texas Natural Resource and Conservation Commission with the authority to adopt any rules necessary to carry out its powers and duties under the Natural Resource Code and other laws of Texas and to establish and approve all general policy of the commission. sec.265.36. Discovery in Hearings Held under Subchapter C. (a) Except where otherwise ordered by the examiner, discovery in hearings held under Subchapter C of this Chapter will be separated by time and manner into three distinct periods. Within the timeframe set for each period in this subsection, the examiner shall have the discretion to set the duration of each discovery period. (1) First Discovery Period. The first discovery period shall last between 60 and 90 days from the date that jurisdiction is taken by the agency. This period is reserved for the protestant's discovery from the applicant, and the applicant's limited discovery of the nature and funding of the protestant. (2) Second Discovery Period. The second discovery period shall last between 60 to 90 days from the end of the first discovery period. Discovery during this period shall consist of the following: (A) the protestant may discover from the staff; (B) the applicant may discover from the protestant and the staff; the number of interrogatories available to the applicant during the second discovery period shall be reduced by the number of interrogatories submitted during the first discovery period; (C) the staff may discover from the protestant and the applicant. (3) Third Discovery Period. The third discovery period shall last between 30 to 50 days from the end of the second discovery period. During this period, any discovery by the protestant or the applicant from the staff shall be limited to the staff's position regarding the applicant's response, and the staff's position regarding the protestants' issues. Discovery from the applicant and the protestant shall be limited to the scope of the listed issues as provided in sec.265.24(b) of this title (relating Procedural Schedule) and the applicant's response as provided in sec.265.24(d) of this title. The examiner shall have discretion to limit or expand discovery in this period further in the interest of fairness. The examiner shall identify which of the time periods listed above apply for discovery for those parties not fitting into the categories discussed above as appropriate. (b) Discovery from the Executive Director. Whenever discovery is sought of the staff of the executive director in any of the discovery periods, it shall be in accord with the following provisions: (1) Beginning at the time jurisdiction is taken, all parties shall have access to all unprivileged documents in the agency's files without the necessity of submitting an Open Records request or a Request for Production. It shall be the agency's responsibility to ensure that documents protected from discovery as provided for under law are removed from agency public files and that all assertions of privilege by the executive director relating to those agency files are made at the time jurisdiction is taken or other timely manner. (2) The executive director shall answer Interrogatories and Requests for Production during the second and third discovery periods. (3) The executive director shall be subject to depositions during the second and third discovery periods, only under the following conditions: (A) Each deposition shall be limited to a total of four hours. (B) Any party seeking to depose a staff witness shall attempt to set the time and date of the deposition through agreement with the staff. (C) The staff shall not be required to submit to a date for the deposition less than ten days from the date of the request. (D) The staff shall not be required to submit to a deposition any later than a date 20 days prior to the prehearing meeting. (E) All depositions of staff witnesses shall be taken in Austin in one of the TNRCC office buildings. (F) All of these requirements may be waived by agreement of the staff or by the examiner on a showing of good cause. (c) Voluntary discovery may be sought at any time by any party. sec.265.37. Forms and Scope of Discovery; Protective Orders; Supplementation of Responses. (a) Forms of discovery. For purposes of hearings held under Subchapter C of this chapter, all forms of discovery are deemed compellable. Permissible forms of discovery for complex hearings include: (1) oral or written depositions of any party or nonparty; (2) written interrogatories; (3) requests of a party for admissions of facts and the genuineness or identity of documents or things; (4) requests and motions for production, examination, and copying of documents or other tangible materials; and (5) requests and motions for entry upon and examination of real property. (b) Scope of discovery. Except as provided in subsection (c) of this section, unless otherwise limited by order of the examiner in accordance with these rules, the scope of discovery is as follows: (1) In general. Parties may obtain discovery regarding any matter which is relevant to the subject matter in the pending proceeding. It is not grounds for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. It is also not grounds for objection that an interrogatory propounded pursuant to sec.265.40 of this title (relating to Interrogatories to Parties) involves an opinion or contention that relates to fact or the application of law to fact, but the examiner may order that such an interrogatory not be answered until after designated discovery has been completed or until a prehearing conference or other later time. It is also not grounds for objection that a request for admission propounded pursuant to sec.265.41 of this of this title (relating to Requests for Admissions) relates to statements or opinions of fact or of the application of law to fact or mixed questions of law and fact or that the documents referred to in a request may not be admissible at trial. (2) Documents and tangible things. A party may obtain discovery of the existence, description, nature, custody, condition, location and contents of any and all documents (including papers, books, accounts, drawings, graphs, charts, photographs, electronic or videotape recordings, and any other data compilations from which information can be obtained and translated, if necessary, by the person from whom production is sought, into reasonably usable form) and any other tangible things which constitute or contain matters relevant to the subject matter in the proceeding. A person is not required to produce a document or tangible thing unless it is within the person's possession, custody or control. Possession, custody or control includes constructive possession such that the person need not have actual physical possession. As long as the person has a superior right to compel the production from a third party (including an agency, authority or representative), the person has possession, custody or control. The executive director and the public interest counsel of the commission are not required to amass, assemble, collect, compile, gather, and/or sort the materials described in this paragraph if those materials are readily available in the commission's records. (3) Land. (A) During the appropriate discovery period, a party may obtain a right of entry upon designated land or other property in the possession or control of a person upon whom a request or motion to produce is served when the designated land or other property is relevant to the application which is the subject of the hearing for the purpose of inspection and measuring, surveying, photographing, testing or sampling the property or any designated object or operation thereon. This provision is not intended to affect any statutory rights authorizing access. If a person has a superior right to compel a third person to permit entry, the person with the right has possession or control. Upon request of the controller or possessor of the land, the examiner may order that entry upon the land be subject to any existing safety regulations or protections of trade secrets or processes. Unless otherwise ordered by the examiner, the parties shall enter into a standard Agreement for Entry Upon Land which contains the following: (i) a release and indemnification provision; (ii) allowance for all parties to split samples; (iii) a provision that the controller of the land shall allow entry within a reasonable period of time after the request; and (iv) a provision that the controller of the land shall have the right to accompany the party entering the property. (B) The parties may request and the examiner will rule on whether a party intending to take samples shall be required to reveal the types of samples and methodology and parameters of tests performed on those samples prior to or subsequent to entry upon land. (4) Potential parties and witnesses. A party may obtain discovery of the identity and location (name, address and telephone number) of any potential party and of persons having knowledge of relevant facts. A person has knowledge of relevant facts when he or she has or may have knowledge of any discoverable matter. The information need not be admissible in order to satisfy the requirements of this subsection and personal knowledge is not required. (5) Experts and reports of experts. Discovery of the facts known, mental impressions and opinions of experts, otherwise discoverable because the information is relevant to the subject matter in the pending proceeding but which were acquired or developed in anticipation of trial and the discovery of the identity of experts from whom the information may be learned may be obtained only as follows: (A) General. A party may obtain discovery of the identity and location (name, address and telephone number) of an expert who may be called as an expert witness, the subject matter of which the witness is expected to testify, the mental impressions and opinions held by the expert and the facts known to the expert (regardless of when the factual information was acquired) which relate to or form the basis of the mental impressions and opinions held by the expert. The disclosure of the same information concerning an expert used for consultation and who is not expected to be called as an expert witness at trial is required if the consulting expert's opinion or impressions have been reviewed by a testifying expert. (B) Reports. A party may also obtain discovery of documents and tangible things including all tangible reports, physical models, compilations of data and other materials prepared by an expert or for an expert in anticipation of the expert's hearing and deposition testimony. The disclosure of material prepared by an expert used for consultation is required even if it was prepared in anticipation of trial if the consulting expert's opinions or impressions have been reviewed by a testifying expert. (C) Determination of status. The examiner has discretion to compel a party to make the determination and disclosure of whether an expert may be called to testify within a reasonable and specific time. (D) Reduction of report to tangible form. If the discoverable factual observations, tests, supporting data, calculations, photographs, or opinions of an expert who will be called as an expert witness have not been recorded and reduced to tangible form, the examiner may order these matters reduced to tangible form and produced within a reasonable time. (6) Statements. Any person, whether or not a party, shall be entitled to obtain, upon written request, his own statement previously made concerning the matter which is the subject of the hearing, or its subject matter, which is in the possession, custody or control of any party. If the request is refused, the person may move for an examiner's order under the Administrative Procedure Act, Texas Government Code, Chapter 2001.091. For the purpose of this paragraph, a statement previously made is: (A) a written statement signed or otherwise adopted or approved by the person making it; and (B) a stenographic, mechanical, electrical or other type of recording, or any transcription thereof which is a substantially verbatim recital of a statement made by the person and contemporaneously recorded. (c) Exemptions. The following matters are protected from disclosure by privilege: (1) Work product. The work product of an attorney, subject to the exceptions of Texas Rules of Civil Evidence, sec.503(d), which shall govern as to work product as well as to attorney-client privilege. (2) Experts. The identity, mental impressions and opinions of an expert who has been informally consulted or of an expert who has been retained or specially employed by another party in anticipation of, or preparation for, trial or any documents or tangible things containing such information if the expert will not be called as an expert witness, except that the identity, mental impressions and opinions of an expert who will not be called to testify as an expert and any documents or tangible things containing such impressions and opinions are discoverable if the consulting expert's opinion or impressions have been reviewed by a testifying expert. (3) Written statements. The written statements of potential witnesses and parties, when made in connection with, or in anticipation of, the prosecution, investigation, defense or protest of the particular application or petition that is the subject of the proceeding, except that persons, whether parties or not, shall be entitled to obtain, upon request, copies of statements they have previously made concerning the application or petition or its subject matter and which are in the possession, custody, or control of any party. The term "written statements" includes: (A) a written statement signed or otherwise adopted or approved by the person making it; and (B) a stenographic, mechanical, electrical or other type of recording, or any transcription thereof which is a substantially verbatim recital of a statement made by the person and contemporaneously recorded. For purpose of this paragraph, a photograph is not a statement. (4) Party communications. Communications between agents or representatives or the employees of a party to the hearing or communications between a party and that party's agents, representatives or employees, when made in connection with the prosecution, investigation, defense or protest of the particular application or petition that is the subject of the particular proceeding, or in anticipation of the prosecution, protest, or defense of any claims made in a part of the pending hearing. This exemption does not include communications prepared by or for experts that are otherwise discoverable. For the purpose of this paragraph, a photograph is not a communication. (5) Other privileged information; Any Matter Protected from Disclosure by Any Other Privilege. Upon a showing that the party seeking discovery has substantial need of the materials and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means, a party may obtain discovery of the materials otherwise exempt from discovery by paragraphs (3) and (4) of this subsection. Nothing in this subsection shall be construed to render non-discoverable the identity and location of any potential party, any person having knowledge or relevant facts, any expert who is expected to be called as a witness during trial, or of any consulting expert whose opinions or impressions have been reviewed by a testifying expert. (d) Presentation of objections. Either an objection or a motion for protective order made by a party to discovery shall preserve that objection without further support or action by the party unless the objection or motion is set for special hearing and determined by the examiner. At any reasonable time, any party may request a special hearing on any objection or motion for protective order. The failure of a party to obtain a ruling prior to trial on any objection to discovery or motion for protective order does not waive such objection or motion. In objecting to an appropriate request within the scope of subsection (b) of this section, a party seeking to exclude any matter from discovery on the basis of an exemption or immunity from discovery, must specifically plead the particular exemption or immunity from discovery relied upon and at or prior to any special hearing, shall produce any evidence necessary to support such claim either in the form of affidavits served at least seven days before the special hearing or by testimony. If the examiner determines that an in camera inspection and review by the examiner of some or all of the requested discovery is necessary, the objecting party must segregate and produce the discovery to the examiner in a sealed wrapper or by answers made in camera to deposition questions, to be transcribed and sealed in event the objection is sustained. When a party seeks to exclude documents from discovery and the basis for objection is undue burden, unnecessary expense, harassment or annoyance, or invasion of personal, constitutional, or property rights rather than a specific immunity or exemption, it is not necessary for the examiner to conduct an inspection and review of the particular discovery before ruling on the objection. After the date on which answers are to be served, objections are waived unless an extension of time has been obtained by agreement or order of the examiner or good cause is shown for the failure to object within such period. (e) Protective orders. On motion specifying the grounds and made by any person against or from whom discovery is sought under these rules, the examiner may make any order in the interest of justice necessary to protect the movant from undue burden, unnecessary expense, harassment or annoyance, or invasion of personal, constitutional, or property rights. Insofar as the applicant is claiming confidentiality of any part of the permit application, the applicant shall request a protective order at the time that jurisdiction is taken. All other claims of confidentiality shall be handled as they arise, according to the timelines established under subsection (a) of this section. Unless amended by the examiner, a standard order developed by the Office of Hearings Examiners shall be used. Motions or responses made under this section may have exhibits attached including affidavits, discovery pleadings, or any other documents. Specifically, the examiner's authority as to such orders extends to, but is not limited by, any of the following: (1) ordering that requested discovery not be sought in whole or in part, or that the extent or subject matter of discovery be limited, or that it not be undertaken at the time or place specified; (2) ordering that the discovery be undertaken only by such method or upon such terms and conditions or at the time and place directed by the examiner. (f) Duty to supplement. A party who has responded to a request for discovery that was correct and complete when made is under no duty to supplement his response to include information thereafter acquired, except the following shall be supplemented not less than 30 days prior to trial unless the examiner finds that a good cause exists for permitting or requiring later supplementation. (1) A party is under a duty reasonably to supplement his response if he obtains information upon the basis of which: (A) he knows that the response was incomplete and incorrect when made; (B) be knows that the response, though correct and complete when made is no longer true and complete and the circumstances are such that failure to amend the answer is in substance misleading; or (2) If the party expects to call an expert witness when the identity or the subject matter of such expert witness' testimony has not been previously disclosed in response to an appropriate inquiry directly addressed to these matters, such response must be supplemented to include the name, address and telephone number of the expert witness and the substance of the testimony concerning which the expert witness is expected to testify, as soon as is practical, but in no event less than 30 days prior to trial, except on leave of the examiner. (3) In addition, a duty to supplement answers may be imposed by order of the examiner or agreement of the parties, or at any time prior to trial, through new requests for supplementation or prior answers. (g) Discovery Disputes. (1) Discovery motions. All discovery motions shall contain a certificate by the party filing same that efforts to resolve the discovery dispute without the necessity of examiner intervention have been attempted and failed. (2) Motions to Compel and for Protective Orders. Whenever a discovery dispute arises, the disputing party shall file a motion to compel or for protective order. Any response shall be filed within five working days of receipt. The response may be a showing of good cause for extra time to respond. The examiner shall rule within five working days of the response. (3) Finality of Examiner's Ruling. No discovery issues shall be certified to the commission. sec.265.38. Stipulations Regarding Discovery Procedure. Unless the examiner orders otherwise, the parties may, by written agreement: (1) provide that depositions be taken before any person, at any time or place, upon any notice, and in any manner and when so taken may be used like other depositions; and (2) modify the procedures provided by these rules for other methods of discovery. An agreement affecting a deposition upon oral examination is enforceable if the agreement is recorded in the deposition transcript. sec.265.39. Discovery and Production of Documents and Things for Inspection, Copying or Photography. (a) Procedure. Any party may serve upon any other party a request: (1) to produce and permit the party making the request or someone acting on his behalf, to inspect, sample, test, photograph, and/or copy, any designated documents or tangible things which constitute or contain matters within the scope of and subject to the limitations of sec.265.37 of this title (relating to Forms and Scope of Discovery; Protective Orders; Supplementation of Responses) which are in the possession, custody or control of the party upon whom the request is served; or (2) to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation within the scope of sec.265.37 of this title (relating to Forms and Scope of Discovery; Protective Orders; Supplementation of Responses). (3) the request shall set forth the items to be inspected either by individual item or by category, and describe each item and category with reasonable particularity. The request shall specify a reasonable time, place and manner for making the inspection and performing the related acts. (4) the party upon whom the request is served shall make the documents available in Texas and shall serve a written response which shall state, with respect to each item or category of items, that inspection or other requested action will be permitted as requested, and he shall thereafter comply with the request, except only to the extent that he makes objections in writing to particular items, categories or items, stating specific reasons why such discovery should not be allowed. (5) a true copy of the request and response, together with proof of the service thereof on all parties shall be filed promptly with the examiner by the party making it, except that any documents produced in response to a request need not be filed. (6) party who produces documents for inspection shall produce them as they are kept in the usual course of business, or shall organize and label them to correspond with the categories in the request. The examiner may require all documents to be produced in usable form, which may require production of computer disks. The examiner may also require a party to provide reasonable indicies to its documents or computerized information produced in response to discovery requests, and to maintain a log of documents produced. (7) testing or examination shall not extend to destruction or material alteration of an article without notice, hearing, and prior approval by the examiner. (8) in order to avoid unnecessary duplication, the examiner shall, whenever convenient, group parties for document production. (9) the examiner may determine on a case by case basis a reasonable allocation of costs associated with the production. (b) Time. The request shall be served upon every party to the hearing. The party upon whom the request is served shall serve a written response and objections, if any, within 21 days after the service of the request. The time for making a response may be shortened or lengthened by the examiner. (c) Order. If objection is made to a request or to a response, either party may file a motion and seek relief pursuant to sec.265.37 of this title (relating to Forms and Scope of Discovery; Protective Orders; Supplementation of Responses), or sec.265.50 of this title (relating to Abuse of Discovery; Sanctions). sec.265.40. Interrogatories to Parties. (a) Any party may serve upon any other party written interrogatories to be answered by the party served, or, if the party served is a public or private corporation, or a partnership or association, or governmental agency, by an officer or agent who shall furnish such information as is available to the party. Upon request of the examiner, a true copy of the interrogatories and the written answers or objections, together with proof of service, shall be filed promptly with the examiner by the party making them, except that when an interrogatory is answered by reference as permitted in paragraph (2) of this subsection, the records so referenced need not be filed. (1) Service. When a party is represented by an attorney, service of interrogatories and answers to interrogatories shall be made on the attorney unless service upon the party himself is ordered by the examiner. Copies of all interrogatories and answers to interrogatories shall be sent to every other party. (2) Scope. Interrogatories may relate to any matters which can be inquired into under sec.265.37 of this title (relating to Forms and Scope of Discovery; Protective Orders; Supplementation of Responses), but the answers, subject to any objections as to admissibility, may be used only against the party answering the interrogatories. Where the answer to an interrogatory may be derived or ascertained from public records, or from the business records of the party upon whom the interrogatory has been served or from an examination, audit or inspection of such business records, or from a compilation, abstract or summary based thereon, and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served; it is sufficient answer to such interrogatory to specify the records from which the answer may be derived or ascertained and, if applicable, to afford the party serving the interrogatory reasonable opportunity to examine, audit or inspect such records and to make copies, compilations, abstracts or summaries. The specification of records provided shall include sufficient detail to permit the interrogating party to locate and identify as readily as can the party served, the records from which the answers may be ascertained. (3) Discovery Periods. The availability of interrogatories shall be limited according to the discovery period, as described in sec.265.36 of this title (relating to Discover in Hearings): (A) In the first or second discovery period each party shall be allowed to serve one set of interrogatories, as permitted in the Texas Rules of Civil Procedure, Rule 168(5). If the applicant has used interrogatories during the first discovery period, the interrogatories shall be considered as part of the total number of interrogatories the applicant is allowed during the second discovery period. (B) In the third discovery period, each party shall also be allowed a second set of 20 interrogatories. (b) Interrogatories may be served after a deposition has been taken, and a deposition may be sought after interrogatories have been answered but the examiner, on motion of the deponent or the party interrogated, may make such protective order as justice requires. (c) Unless other time limits are set by the examiner or by agreement of the parties, the party upon whom the interrogatories have been served shall serve answers upon the party submitting the interrogatories within the time specified by the party serving the interrogatories, which specified time shall not be less than 21 days after the service of the interrogatories. The examiner may enlarge or shorten the time for serving answers or objections. (d) The number of questions, including subsections, in a set of interrogatories served during the first or second discovery period shall be limited so as not to require more than 30 answers. In the second set of interrogatories allowed in the third discovery period, the interrogatories shall be limited so as not to require more than 20 answers. Each part of a compound question will be considered a separate question. No more than two sets of interrogatories may be served by a party to any other party, except by agreement or as may be permitted by the examiner upon a showing of good cause. The examiner may reduce or enlarge the number of interrogatories or sets of interrogatories if justice so requires. Furthermore, the examiner may group parties specifically for discovery purposes, in order to limit the number of questions that must be answered by any party. In the event that parties are grouped, the examiner may increase the allowable number of interrogatories beyond that specified in the Texas Rules of Civil Procedure, Rule 168(5) to the extent fairness requires. The provisions of sec.265.37 of this title (relating to Forms and Scope of Discovery; Protective Orders; Supplementation of Responses) are applicable for the protection of the party from whom answers to interrogatories are sought under this section. (e) The interrogatories shall be answered separately and fully in writing under oath. Answers to interrogatories shall be preceded by the question or interrogatory to which the answer pertains. True copies of the interrogatories, and answers and objections thereto, shall be served on all parties or their attorneys, and copies thereof shall be provided to any additional parties upon request. The answers shall be signed and verified by the person making them and the provisions of sec.263.7 of this title (relating to Affidavit by Representative) shall not apply. (f) A party may serve written objections to specific interrogatories or portions thereof. Objections must be served within 14 days of receiving the interrogatories. Answers only to those interrogatories, or portions thereof, to which objection is made, shall be deferred until the objections are ruled upon and for such additional time thereafter as the examiner may direct. sec.265.41. Requests for Admissions. (a) Request for admission. (1) At any time after jurisdiction over the application or petition has been taken by the examiner, except as provided in sec.265.51 of this title (relating to Sanctions for Failure to Serve or Deliver Copy of Pleadings and Motions), a party may serve upon any other party a written request for the admission, for purposes of the pending proceeding only, of the truth of any matters within the scope of sec.265.37 of this title (relating to Forms and Scope of Discovery; Protective Orders; Supplementation of Responses) set forth in the request that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request. Except by agreement of the parties or upon leave of the examiner, a party may serve only one set of admissions upon any other party. (2) Copies of the documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection or copying. Whenever a party is represented by an attorney of record, service for a request for admissions shall be made on his attorney unless service on the party himself is ordered by the examiner. Upon request of the examiner, a true copy of a request for admissions or of a written answer or objection, together with proof of the service thereof, shall be promptly filed with the examiner by the party making it. (3) Each matter of which an admission is requested shall be separately set forth. The examiner may specify the dates by which the admission may be served, answered, specifically denied or objected to as provided in this section. The matter is admitted without necessity of an examiner's order unless, within 14 days after service of the request, or within such time as the examiner may allow, or as otherwise agreed by the parties, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney. (4) If objection to a requested admission is made, the reason therefore shall be stated. (5) The answer to a requested admission shall specifically deny the matter or set forth in detail the reasons that the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify his answer or deny only a part of the matter of which an admission is requested, he shall specify so much of it as is true and qualify or deny the remainder. (6) An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless he states that he has made reasonable inquiry and that the information known or easily obtainable by him is insufficient to enable him to admit or deny. (7) A party who considers that a matter of which an admission is requested presents a genuine issue for hearing may not, on that ground alone, object to the request; he may, subject to the provisions of sec.265.50 of this title (relating to Abuse of Discovery; Sanctions), deny the matter or set forth reasons why he cannot admit or deny it. (b) Effect of admissions. (1) Any matter admitted under this section is conclusively established as to the party making the admission unless the examiner, on motion and for good cause shown, permits withdrawal or amendment of the admission. (2) Subject to the provisions of sec.265.37 of this title (relating to Forms and Scope of Discovery; Protective Orders; Supplementation of Responses) governing duty to supplement discovery responses, the examiner may permit withdrawal or amendment of responses and deemed admissions upon a showing of good cause for such withdrawal or amendment if the examiner finds that the parties relying upon the responses and deemed admissions will not be unduly prejudiced and that the presentation of the merits of the proceeding will not be subserved thereby. sec.265.42. Depositions. (a) Type of Deposition. The types of depositions allowed shall include those under the Texas Rules of Civil Procedure, Rule 202. The deposing party shall have the option of selecting the type of deposition, but in all cases a recording shall be made. When a party seeks a deposition that is not transcribed by a court reporter, any other party may, at its own cost, provide for a court reporter. (b) Deposition Witnesses. The examiner may order that all deposition witnesses be made available in Texas. At the time of deposition the witness shall be prepared to testify about those issues and opinions for which the witness is identified. sec.265.43. Issuance of Commission to Take Deposition.
                                      On his own motion or on the written request of any party to a contested case pending before him, and on deposit of sums as required by the Administrative Procedures Act, an examiner shall issue a commission, addressed to the several officers authorized by statute to take depositions, to require that the deposition of a witness be taken, which commission shall authorize the issuance of any subpoenas necessary to require that the witness appear and produce, at the time the deposition is taken, books, records, papers, or other objects as may be necessary and proper for the purposes of the proceeding. sec.265.44. Witness Shall Comply with Discovery. In the case of failure of a person to comply with a subpoena or commission to take deposition issued pursuant to these rules, the party requesting the subpoena or commission to take deposition, may bring suit to enforce the subpoena or commission to take deposition in a district court, either in Travis County, or in the county in which the subject hearing may be held. sec.265.45. Non-Stenographic Recording; Deposition by Telephone. (a) Non-Stenographic Recording. Any party may cause the testimony and other available evidence at a deposition upon oral examination to be recorded by other than stenographic means, including videotape recordings, upon leave of the examiner, and the non-stenographic recording may be presented at trial in lieu of reading from a stenographic transcription of the deposition, subject to the following. (1) Any party intending to make a non-stenographic recording shall give five days' notice to all other parties by mail, return receipt requested, and shall specify in said notice the type of non-stenographic recording which will be used. (2) After notice is given, any party may make a motion for relief under sec.265.37 of this title (relating to Forms and Scope of Discovery; Protective Orders; Supplementation of Responses). If a special hearing session is not held prior to the taking of the deposition, the non-stenographic recording shall be made subject to the examiner's ruling at a later time. (3) Any party shall have reasonable access to the original recording and may obtain a duplicate copy at his own expense. (4) The expense of a non-stenographic recording shall not be taxed as costs, unless before the deposition is taken, the parties so agree, or the examiner so orders, for good cause shown, on motion and notice. (5) The non-stenographic recording shall not dispense with the requirement of a stenographic transcription unless the examiner shall so order on motion and notice before the deposition is taken and such order shall make such provision concerning the manner of taking, preserving and filing the non-stenographic recording as may be necessary to assure that the recorded testimony will be intelligible, accurate and trustworthy. Such order shall not prevent any party from having stenographic transcription made at his own expense. In the event of an appeal, the non-stenographic recording shall be reduced to writing at the expense of the party making the recording. (b) Deposition by telephone. The parties may stipulate in writing, or the examiner may, upon motion, order that a deposition be taken by telephone. For the purposes of this section and s265.43 of this title (relating to Issuance of Commission to Take Deposition) and sec.274.71 of this title (relating to Abuse of Discovery; Sanctions), a deposition taken by telephone is taken in the district and at the place where the deponent is to answer questions propounded to him. sec.265.46. Failure of Party or Witness to Attend or to Serve Subpoena; Expenses. (a) Failure of party giving notice to attend. If the party giving the notice of the taking of an oral deposition fails to attend and proceed therewith and another party attends in person or by attorney pursuant to the notice, the examiner may recommend that the commission order the party giving the notice to pay to such other party the reasonable expenses incurred by him and his attorney in attending, including reasonable attorney fees. (b) Failure of witness to attend. If a party gives notice of the taking of an oral deposition of a witness and the witness does not attend because of the fault of the party giving the notice, if another party attends in person or by attorney because he expects the deposition of that witness to be taken, the examiner may recommend that the commission order the party giving the notice to pay to such other party the reasonable expenses incurred by him and his attorney in attending, including reasonable attorney fees. sec.265.47. Deposition Examination, Cross-Examination and Objections. (a) Written cross-questions on oral examination. At any time before the expiration of ten days from the date of the service of the notice to take oral deposition, any party, in lieu of participating in the oral examination may serve written questions on the party proposing to take the deposition who shall cause them to be transmitted to the officer authorized to take the deposition who shall propound them to the witness and record the answers verbatim. (b) Oath. Every person whose deposition is taken upon oral examination shall be first cautioned and sworn to testify the truth, the whole truth and nothing but the truth. (c) Examination. The witness shall be carefully examined, his testimony shall be recorded at the time it is given and thereafter transcribed by the officer taking the deposition or by some person under his personal supervision. (d) Objections to testimony. The officer taking the oral deposition shall not sustain objections made to any of the testimony or fail to record the testimony of the witness because an objection is made by any of the parties or attorneys engaged in taking the testimony. Any objections made when the deposition is taken shall be recorded with the testimony and reserved for the action of the examiner before whom the cause is pending. Absent express agreement recorded in the deposition to the contrary: (1) objections to the form of questions or the nonresponsiveness of answers are waived if not made at the taking of an oral deposition; and (2) except as provided in paragraph (1) of this subsection, or unless otherwise provided by agreement of the parties recorded by the officer in the deposition transcript, the examiner shall not be confined to objections made at the taking of testimony. sec.265.48. Submission to Witness; Changes; Signing. (a) When the testimony is fully transcribed, the deposition officer shall transmit or provide the original deposition transcript to the witness or if the witness is a party with an attorney of record, to the attorney of record, for examination and signature, by the witness before any officer authorized to administer an oath, unless such examination and signature are waived by the witness and by the parties. (b) No erasures or obliterations of any kind are to be made to the original testimony as transcribed by the deposition officer. Any changes in form or substance which the witness desires to make shall be furnished to the deposition officer by the witness, together with a statement of the reasons given by the witness for making such changes. The changes and the statement of the reasons for the changes shall be attached to the deposition by the depositions officer. The deposition transcript and any changes shall then be subscribed by the witness under oath, before any officer authorized to administer an oath, unless the parties by stipulation waive the signing or the witness is ill or cannot be found or refuses to sign. (c) If the witness does not sign and return the original deposition transcript within 20 days of its submission to him or his counsel of record, the deposition officer shall sign a true copy of the transcript and state on the record the fact of the waiver of examination and signature or of the illness or absence of the witness or the fact of the refusal to sign together with the reason, if any, given therefor. The copy of the deposition transcript may then be used as fully as though signed, unless on motion to suppress, made as provided in s265.49 of this title (relating to Use of Deposition Transcripts in Commission Proceedings), the examiner determines that the reasons given for the refusal to sign require rejection of the deposition in whole or in part. sec.265.49. Use of Deposition Transcripts in Commission Proceedings. (a) Use of deposition transcript in same proceeding. (1) Use of depositions. At trial or upon a hearing on a motion, any part or all of a deposition taken in the same proceeding, insofar as admissible under the Texas Rules of Civil Evidence, may be used by any person for any purpose against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof. Further, the Texas Rules of Civil Evidence shall be applied to each question and answer as though the witness were then present and testifying. Depositions shall include the original transcripts or any certified copies thereof. Unavailability of the deponent is not a requirement for admissibility. (2) Included within meaning of "same proceeding." Substitution of parties pursuant to these rules does not affect the right to use depositions previously taken. (3) Parties joined after deposition taken. If one becomes a party after a deposition is taken and has an interest similar to that of any party described in paragraphs (1) or (2) of this subsection, the deposition is admissible against him if he has had a reasonable opportunity, after becoming a party, to redepose the deponent, and has failed to exercise that opportunity. (b) Use of deposition transcript taken in different proceeding. At trial or upon the hearing of a motion or an interlocutory proceeding before an examiner, any part or all of a deposition taken in a different proceeding may be used subject to the provisions and requirements of the Texas Rules of Civil Evidence. Further, the Texas Rules of Civil Evidence shall be applied to each question and answer as though the witness was then present and testifying. (c) Motion to suppress. When a deposition transcript has been delivered by the deposition officer and notice of delivery given at least one entire day before the day on which the case is called for trial, errors and irregularities in the notice of delivery, and errors in the manner in which the testimony is transcribed or the deposition transcript is prepared, signed, certified, sealed, endorsed, delivered, or otherwise dealt with by the deposition officer under sec.265.48 of this title (relating to Submission to Witness; Changes; Signing) are waived, unless a motion to suppress the deposition transcript or some part thereof is made and notice of the written objections made in the motion is given to every other party before trial commences. 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 31, 1994. TRD-9435406 Mary Ruth Holder Director, Legal Division Texas Natural Resource Conservation Commission Earliest possible date of adoption: March 7, 1994 For further information, please call: (512) 463-8069 Subchapter E. Special Sanctions Rules Relating to Freezing the Process 30 TAC sec.sec.265.50-265.55 The new sections are proposed under the Texas Water Code, sec.5.103 and sec.5.105, which provides the Texas Water Commission with the authority to adopt any rules necessary to carry out its powers and duties under the Water Code and other laws of Texas and to establish and approve all general policy of the commission. sec.265.50. Abuse of Discovery; Sanctions. (a) Motion for sanctions or order compelling discovery. A party, upon reasonable notice to all other parties and to all other persons affected thereby, may apply for sanctions or an order compelling discovery as follows: (1) Motion. According to subparagraphs (A)-(C) of this paragraph, the discovering party may move for an order compelling a designation, an appearance, an answer or answers, or inspection or production in accordance with the request, or apply to the examiner for imposition of any sanction authorized by subsection (b)(2) of this section without the necessity of first having obtained an examiner's order compelling such discovery: (A) if a party or other deponent which is a corporation or other entity fails to designate the persons or persons to testify on the deponent's behalf, and, if the deponent so desires, the matters on which each person designated will testify; or (B) if a party, or other deponent, or a person designated to testify on behalf of a party or other deponent fails: (i) to appear before the officer who is to take his deposition, after being served with a proper notice; or (ii) to answer a question propounded or submitted upon oral examination or upon written questions; or (C) if a party fails: (i) to serve answers or objections to interrogatories submitted under sec.265.40 of this title (relating to Interrogatories to Parties), after proper service of the interrogatories; or (ii) to answer an interrogatory submitted under s265.40 of this title (relating to Interrogatories to Parties); or (iii) to serve a written response to a request for inspection under sec.265.39 of this title (relating to Discovery and Production of Documents and Things for Inspection, Copying or Photographing), after proper service of the request; or (iv) to respond that discovery will be permitted as requested or fails to permit discovery as requested in response to a request for inspection submitted under sec.265.39 of this title (relating to Discovery and Production of Documents and Things for Inspection, Copying or Photographing). (D) when taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before he applies for an order. (E) if the examiner denies the motion in whole or in part, the examiner may make such protective order as he would have been empowered to make on a motion pursuant to sec.265.37 of this title (relating to Forms and Scope of Discovery; Protective Orders; Supplementation of Responses). (F) Material misrepresentations, including misleading statements or omissions of material information in any application material, or in response to a discovery request or in testimony, constitutes a violation and may be punished by the Examiner with the full range of sanctions, including a recommendation of denial, of the relief requested in the hearing by the responsible party. (2) Evasive or incomplete answer. For purposes of this section, an evasive or incomplete answer is to be treated as a failure to answer. (3) Disposition of motion to compel: award of expenses. (A) If the motion is granted, the commission may, after opportunity for hearing, order a party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay the movant, the reasonable expenses incurred in obtaining the order, including reasonable attorney fees, unless the commission finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust. (B) If the motion is denied, the commission may, after an opportunity for hearing, order the movant or attorney advising such motion to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including reasonable attorney fees, unless the commission finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust. (C) If the motion is granted in part and denied in part, the commission may, after an opportunity for hearing, apportion in its order the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner. (D) In determining the amount of reasonable expenses, including attorney fees, to be awarded in connection with a motion, the commission shall award expenses which are reasonable in relation to the amount of work reasonably expended in obtaining an order compelling compliance or in opposing a motion which is denied. (E) Commission orders described in paragraph (3)(A)-(C) of this subsection shall be subject to review on appeal from the commission's final order. (4) Providing person's own statement. If a party fails to comply with any person's written request for the person's own statement as provided in sec.265.37(b)(6) of this title (relating to Forms and Scope of Discovery; Protective Orders; Supplementation of Responses), the person who made the request may move for an order compelling compliance with sec.265.37(b)(6) of this title (relating to Forms and Scope of Discovery; Protective Orders; Supplementation of Responses). If the motion is granted, the movant may recover the expenses incurred in obtaining the order, including attorney fees, which are reasonable in relation to the amount of work reasonably expended in obtaining the order. (b) Failure to comply with order or with discovery requests. (1) Sanctions by court. If a deponent fails to appear or to be sworn or to answer a question after being directed to do so by an examiner, the failure may be appealed to district court by the movant as provided by law. (2) Sanctions by examiner and commission. If a party or an officer, director, or managing agent of a party or a person designated under subsection (a)(1) of this section to testify on behalf of a party fails to comply with proper discovery requests or to obey an order to provide or permit discovery, including an order made under subsection (a) of this section, the examiner may impose any of the sanctions authorized by sec.265.20 of this title (relating to Sanctions for Failure to Comply with Discovery Ruling) or he may, after notice and hearing, make such orders, or recommendations to the commission, in regard to the failure as are just, and among others, the following: (A) an examiner's order disallowing any further discovery of any kind or of a particular kind by the disobedient party; (B) a recommendation that the commission issue an order charging all or any portion of the expenses of discovery or taxable hearing costs or both against the disobedient party or the attorney advising him; (C) an examiner's order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; (D) an examiner's order refusing to allow the disobedient party to support or oppose designated claims, or prohibiting him from introducing designated matters in evidence; (E) an examiner's order striking out pleadings, or parts thereof, or staying further proceedings until the order is obeyed. The commission may issue an order dismissing, with or without prejudice, the application, petition, or proceedings or any part thereof; or (F) in lieu of any of the foregoing orders or recommendations or in addition thereto, the commission may order the party failing to obey the order or the attorney advising him, or both, to pay, at such time as ordered by the commission, the reasonable expenses, including reasonable attorney fees, caused by the failure, unless the commission finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. Such an order shall be subject to review on appeal when the commission's order becomes final and appealable pursuant to the Administrative Procedures Act, Government Code, Chapter 2001, Subchapter F. (c) Abuse of discovery process in seeking, making, or resisting discovery. If the examiner finds a party is abusing the discovery process in seeking, making, or resisting discovery or if the examiner finds that any interrogatory or request for inspection or production is unreasonably frivolous, oppressive, or harassing, or that a response or answer is unreasonably frivolous or made for the purposes of delay, then the examiner, or the commission may, after notice and hearing, impose any appropriate sanction authorized by sec.265.50 of this title (relating to Sanctions for Failure to Comply with Discovery Ruling) or authorized by subsection (b)(2)(A)-(D), and (F), of this section, or recommend that the commission dismiss the proceedings as authorized by subsection (b)(2)(E) of this section. Such order of sanction shall be subject to review on appeal when the commission's order becomes final. (d) Failure to comply with sec.265.41 of this title (relating to Requests for Admissions). (1) Deemed admission. Each matter of which an admission is requested shall be deemed admitted unless, within the time provided for in sec.265.41 of this title (relating to Requests for Admission), the party to whom the request is directed serves upon the party requesting the admissions a sufficient written answer or objection in compliance with the requirements of s265.41, addressed to each matter of which an admission is requested. For purposes of this section, an evasive or incomplete answer may be treated as a failure to answer. (2) Motion. The party who has requested the admission may move to determine the sufficiency of the answers or objections. Unless the examiner determines that an objection is justified, the examiner may order that an answer be served. If the examiner determines that an answer does not comply with the requirements of sec.265.41 of this title (relating to Requests for Admission), the examiner may order either that the matter be admitted or that an amended answer be served. The provisions of subsection (a)(3) of this section apply to the award of expenses incurred in relation to the motion. (3) Expenses on failure to admit. If a party fails to admit the genuineness of any document or the truth of any matter as requested under sec.265.41 of this title (relating to Requests for Admission) and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, he may apply to the examiner for an examiner's recommendation that the commission order the other party to pay the movant the reasonable expenses incurred in making that proof, including reasonable attorney fees. The commission may make the order unless the commission finds that: (A) the request was held objectionable pursuant to s265.41(a) of this title (relating to Requests for Admission); (B) the admission sought was of no substantial importance; (C) the party failing to admit had reasonable grounds to believe that he might prevail on the matter; or (D) there was other good reason for the failure to admit. (e) Failure to respond to or supplement discovery. A party who fails to respond to or supplement his response to a request for discovery shall not be entitled to present evidence which the party was under a duty to provide in a response or supplemental response or to offer the testimony of an expert witness or of any other person having knowledge of discoverable matter, unless the examiner finds that good cause, sufficient to require admission, exists. The burden of establishing good cause is upon the party offering the evidence and good cause must be shown in the record. sec.265.51. Sanctions for Failure to Serve or Deliver Copy of Pleadings and Motions. If any party fails to serve on or deliver to the other parties a copy of any pleading, plea, motion, prefiled testimony or prefiled objections, or other application for an examiner's order, the examiner may, in his discretion, on notice and hearing: (1) order all or any part of such document stricken; (2) direct that such party shall not be permitted to present grounds for relief, protest or defense contained therein; or (3) recommend that the commission require such party to pay to the other parties the amount of reasonable costs and expenses, including reasonable attorney fees, incurred as a result of the failure, or make such other order with respect to the failure as may be just pursuant to sec.265.37 of this title (relating to Forms and Scope of Discovery; Protective Orders; Supplementation of Responses). sec.265.52. Financial Sanctions for Special Hearing Sessions; Objections. (a) If the examiner elects to recommend that the commission award costs pursuant to this section, the examiner shall receive evidence of such costs at hearing. (b) If the commission finds, upon the examiner's recommendation, that a special hearing session, including a telephone conference call, results from any of the following acts or omissions of any of the parties, the commission may order that costs, including reasonable attorney fees, for the special hearing session be awarded to the prevailing parties: (1) not dealing in good faith; (2) asserting a position, delaying a hearing, or taking other action when a party knows or when it is obvious that such action would merely harass or maliciously injure another; (3) concealing or failing to disclose that which the party is required by law, by order of the examiner, or by agreement of the parties to reveal; (4) knowingly using perjured testimony or false evidence, or using such testimony or evidence when it is obvious to the culpable party or when the culpable party should have known that the testimony was perjured or the evidence was false; (5) knowingly making a false statement of law or fact, or making such a statement when it is obvious to the culpable party or when the culpable party should have known, that the statement of law or fact was false; (6) stating or alluding to any matter that the party has no reasonable basis to believe is relevant to the case and that will not be supported by admissible evidence; (7) asking any question that the party has no reasonable basis to believe is relevant to the case and that is intended to degrade a witness or other person; (8) asking questions in such a manner or form that will result in unreasonably delaying the hearing; (9) engaging in undignified or discourteous conduct which is degrading to any other party or to the examiner; or (10) intentionally or habitually violating any established rule of procedure, of professional conduct, or of evidence. (c) The commission may, upon recommendation of the examiner, order a party and/or the party's attorney to pay to the other parties the reasonable expenses, including reasonable attorney fees, incurred by the other parties as a result of: (1) proving at hearing any matter to which the sanctioned party refused to stipulate prior to hearing but which is clearly not an issue, provided evidence at hearing establishes that the sanctioned party had no reasonable evidentiary basis for refusing to stipulate to the matter; (2) disruptive conduct of any party, party's witness, or party's attorney during hearing. Disruptive conduct may include, but is not limited to, the repeated failure of a party's witness to provide responsive answers while testifying; making repetitive, frivolous, or excessively lengthy objections; loud, discourteous, contemptuous, profane, argumentative, or provocative behavior by a party, the party's witness, or the party's attorney; or the continuation of a course of conduct at hearing in violation of a ruling made by the examiner; (3) a special hearing session, including a telephone conference call, being held: (A) to consider a request for a protective order; (B) to resolve discovery disputes; (C) to determine if a party is not complying with any orders issued by the examiner; (D) to consider prefiled objections, objections to interrogatories, or objections to admissions; or (E) for any similar reason. (d) Objections. If the commission finds that any objections, including but not limited to, objections raised during open hearing, prefiled objections, objections to interrogatories, and objections to admissions are baseless, needlessly voluminous or lengthy, are raised in bad faith, or for the purpose of delay, the commission may order the party and/or the party's attorney raising the objections to pay the reasonable costs, including reasonable attorney fees, incurred by the other parties as a result of the filing of the objections. (e) The commission's final order may direct that the violating party pay those costs to the other parties, which include the executive director and the public interest counsel of the commission. Any costs awarded to the executive director and the public interest counsel shall be deposited into the State Treasury in the manner provided by law. sec.265.53. Failure to Identify Witnesses. Absent good cause, a party shall be barred from calling a witness who was not listed on that party's prehearing witness list, when used, or who failed to give prefiled testimony. sec.265.54. Failure to Identify Testimony. Absent good cause, a witness shall be barred from testifying about matters which were not identified in that witness' prehearing testimony summary, when used, or in that witness' prefiled testimony. sec.265.55. Barring Exhibits. (a) Absent good cause, an exhibit shall not be accepted into the record: (1) which was not prefiled with the prefiled testimony; (2) was not identified on the proffering party's prehearing exhibits list, if any; or (3) was not timely submitted to the examiner and to all other parties, as aligned, prior to trial as required: (A) by any of the examiner's prehearing orders; (B) by written agreement of the parties; or (C) by this chapter. (b) This section does not apply to cross examination exhibits. 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 31, 1994. TRD-9435407 Mary Ruth Holder Director, Legal Services Texas Natural Resource Conservation Commission Earliest possible date of adoption: March 7, 1994 For further information, please call: (512) 463-8069 Chapter 274. Expediting the Complex Hearings The Texas Natural Resource Conservation (TNRCC or Commission) proposes the repeal of Chapter 274, sec.sec.274.1-274.9, 274.21-274.24, 274.41-274.63, and 274.71-274.76, concerning Expediting the Complex Hearings. Repeal of these rules is based on recommendations of the Permit Hearing Process Task Force, a group of representatives from environmental, industry-related and other special interest groups assembled to consider ways in which the hearings process could be streamlined and made more fair. The Task Force recommended that the complex hearings process does not produce the time and cost savings anticipated, especially during discovery prior to the application being declared technically complete. Concurrently with repealing these sections the Commission is proposing amendments and new rules in Chapter 265, Procedures Before Public Hearing, which include special procedures for freezing the application prior to hearing and discovery and sanction procedures. The Task Force believes the repeal of complex hearings process rules and adoption of amendments to Chapter 265 will streamline and make the hearings process more fair. Proposed amendments to Chapter 265 are published in this issue of the Texas Register. Stephen Minick, division of budget and planning, has determined that for the first five years there will be no fiscal implications to state or local governments or to small businesses as a result of the repeal of these rules. Mr. Minick 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 the repeal will be a more efficient conduct of contested case hearings. There are no economic costs anticipated to persons who are affected by the proposed repeal of these rules. Comments on the proposed repeal may be submitted to TNRCC, Attention: Claire Arenson, Chief Hearings Examiner, Office of Hearings Examiners, P.O. Box 13087, Austin, Texas 78711-3087. Subchapter A. General Rules 30 TAC sec.sec.274.1-274.9 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Natural Resource Conservation Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The repeals are proposed under Water Code, sec.5.103 and sec.5.105, which authorize the Commission to adopt any rules necessary to carry out its powers and duties under the Code and other laws of this state and to establish and approve all general policy of the Commission. sec.274.1. Applicability. sec.274.2. Definitions. sec.274.3. Expanded First Notice of Application. sec.274.4. Expanded Second Notice of Application and/or Hearing for Complex Hearings. sec.274.5. Assessment of Transcription Costs for Complex Hearings. sec.274.6. Amending the Application. sec.274.7. Withdrawing the Application. sec.274.8. Pleading: Surprise: Cost. sec.274.9. Legal Documents; Size and Form. 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 31, 1994. TRD-9435398 Mary Ruth Holder Director, Legal Services Texas Natural Resource Conservation Commission Earliest possible date of adoption: March 7, 1994 For further information, please call: (512) 463-8069 Subchapter B. Prehearing Procedures for Complex Hearings 30 TAC sec.sec.274.21-274.24 (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 Natural Resource Conservation Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The repeals are proposed under Water Code, sec.5.103 and sec.5.105, which authorize the Commission to adopt any rules necessary to carry out its powers and duties under the Code and other laws of this state and to establish and approve all general policy of the Commission. sec.274.21. Taking Jurisdiction; Early Designation of Parties. sec.274.22. Prehearing Conference. sec.274.23. Prefiled Testimony and Objections. sec.274.24. Supplementing Prefixed Testimony and Objections. 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 31, 1994. TRD-9435399 Mary Ruth Holder Director, Legal Services Texas Natural Resource Conservation Commission Earliest possible date of adoption: March 7, 1994 For further information, please call: (512) 463-8069 Subchapter C. Discovery and Evidence 30 TAC sec.sec.274.41-274.63 (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 Natural Resource Conservation Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The repeals are proposed under Water Code, sec.5.103 and sec.5.105, which authorize the Commission to adopt any rules necessary to carry out its powers and duties under the Code and other laws of this state and to establish and approve all general policy of the Commission. sec.274.41. Discovery in Complex Hearings. sec.274.42. Subsequent Designation of Additional Parties; Discovery. sec.274.43. Service of Documents During Permit Drafting; Local Repository for Application. sec.274.44. Forms and Scope of Discovery; Protective Orders; Supplementation of Responses. sec.274.45. Stipulations Regarding Discovery Procedure. sec.274.46. Discovery and Production of Documents and Things for Inspection, Copying or Photography. sec.274.47. Written Interrogatories; Compellable Discovery. sec.274.48. Interrogatories to Parties. sec.274.49. Requests for Admissions. sec.274.50. Subpoena of Witnesses and for the Production of Documentary Evidence. sec.274.51. Form of Subpoena. sec.274.52. Witness Shall Attend Hearing. sec.274.53. Deposition to Perpetuate Testimony. sec.274.54. Evidence. sec.274.55. Issuance of Commission to Take Deposition. sec.274.56. Witness Shall Comply With Discovery. sec.274.57. Non-Stenographic Recording; Deposition by Telephone. sec.274.58. Failure of Party or Witness to Attend or to Serve Subpoena; Expenses. sec.274.59. Deposition Examination, Cross-Examination and Objections. sec.274.60. Submission to Witness; Changes; Signing. sec.274.61. Use of Deposition Transcripts in Commission Proceedings. sec.274.62. Additional Testimony. sec.274.63. Rebuttal. 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 31, 1994. TRD-9435400 Mary Ruth Holder Director, Legal Services Texas Natural Resource Conservation Commission Earliest possible date of adoption: March 7, 1994 For further information, please call: (512) 463-8069 Subchapter D. Sanctions 30 TAC sec.sec.274.71-274.76 (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 Natural Resource Conservation Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The repeals are proposed under Water Code, sec.5.103 and sec.5.105, which authorize the Commission to adopt any rules necessary to carry out its powers and duties under the Code and other laws of this state and to establish and approve all general policy of the Commission. sec.274.71. Abuse of Discovery; Sanctions. sec.274.72. Sanctions for Failure to Serve or Deliver Copy of Pleadings and Motions. sec.274.73. Financial Sanctions for Special Hearing Sessions; Objections. sec.274.74. Failure to Identify Witnesses. sec.274.75. Failure to Identify Testimony. sec.274.76. Bxarring Exhibits. 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 31, 1994. TRD-9435404 Mary Ruth Holder Director, Legal Services Texas Natural Resource Conservation Commission Earliest possible date of adoption: March 7, 1994 For further information, please call: (512) 463-8069 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part I. Texas Department of Public Safety Chapter 15. Driver's License Rules Examination Requirements 37 TAC sec.15.55 The Texas Department of Public Safety proposes an amendment to sec.15.55, concerning Waiver of Road Test. The title of the section is changed for uniformity with text. Paragraph (3) is added to clarify language relating to examination requirements for advance in grade. Paragraph (4) is added for clarifying a knowledge test and a skills test. Tom Haas, chief, 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. The amendment is promulgated under the authority of the Texas Tax Code, Title 2; therefore, no analysis of the effect on small businesses is required. John Hall, inspector, 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 simplify the process for obtaining a Texas Driver's License by not requiring a knowledge test when the applicant has been licensed in another jurisdiction. 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 John C. West, Jr., Texas Department of Public Safety, Box 4087, Austin, Texas 78773-0001, (512) 465-2000. The amendment is proposed under Texas Civil Statutes, Article 6687b, sec.1A, which provide the Texas Department of Public Safety with the authority to adopt rules that it determines are necessary to effectively administer this act. sec.15.55. Waiver of Knowledge and Skills Tests [Road Test]. Knowledge and skills [road] tests are waived for persons holding a valid out-of-state license when applying for a Texas license of the same or lower type. (1) The skills
                                        [road] test is waived for applicants who hold a valid driver's license from another state, territory, province of Canada, military service of the United States, or United States Armed Forces license. (2) For applicants with expired or no license, the complete examination will be given, including the skills
                                          [road] test. (3) If the same or lower class of license is applied for, the applicant must pass only the vision tests. The knowledge and skills tests will be waived for all applicants who present a valid out-of-state license. If an advance in grade is applied for, the applicant must pass the vision tests and appropriate knowledge tests and a skills test. (4) The term "knowledge test" means written, computerized, or automated tests. The term "skills test" means driving or road tests. 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-9435293 James R. Wilson Director Texas Department of Public Safety Earliest possible date of adoption: March 7, 1994 For further information, please call: (512) 465-2000 Reciprocity in Driver Licensing 37 TAC sec.15.92 The Texas Department of Public Safety proposes an amendment to sec.15.92, concerning Interstate and Armed Forces Reciprocity. The amendment provides that members of the military or its civilian components of a NATO country may drive in Texas on their country's license or be issued a Texas license after they have met all of the licensing requirements except for the knowledge and skills tests which will be waived. Tom Haas, chief, 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. John Hall, inspector, 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 simplify the process for obtaining a Texas Driver's License by not requiring a knowledge test when the applicant has been licensed in another jurisdiction. 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 John C. West, Jr., Texas Department of Public Safety, Box 4087, Austin, Texas 78773-0001, (512) 465-2000. The amendment is proposed under Texas Civil Statutes, Article 6687b, sec.1A, which provide the Texas Department of Public Safety with the authority to adopt rules that it determines are necessary to effectively administer this Act. sec.15.92. Interstate and Armed Forces Reciprocity. The Department grants like reciprocity for driver licensing to residents of other states. (1)-(5) (No change.) (6) The Department adheres to the NATO Agreement signed in 1951 which provides that the receiving state shall either: (A)-(B) (No change.) (C) permit members of the military and its civilian components to operate a vehicle in Texas with the permit, license, or military driving permit, appropriate for the class of vehicle being driven,
                                            issued by the sending state (country) or a subdivision; or issue its own permit (Texas license) after the applicant has taken the required vision [and written] tests and paid the required fee. The written knowledge tests and driving skills
                                              [driving] test will be waived when applying for a Texas license of the same or lower type
                                                [in this instance]. The members of the military or its civilian components of a NATO country may drive in Texas on their country's license appropriate for the class of vehicle being driven
                                                  or be issued a Texas license after they have met all of the licensing requirements except for the written and driving tests
                                                    [road test], which will be waived unless applying for an advance in grade
                                                      . This provision applies only to the actual members of the military or its civilian components, and it does not apply to the spouse or dependent of the member. 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-9435292 James R. Wilson Director Texas Department of Public Safety Earliest possible date of adoption: March 7, 1994 For further information, please call: (512) 465-2000 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 52. Emergency Response Services The Texas Department of Human Services (DHS) proposes amendments to sec.sec.52.101, 52.501, and 52.502, concerning definitions of program terms, billing and claims payment, and reimbursement methodology, in its Emergency Response Services (ERS) chapter. The purpose of the amendments is to streamline the ERS reimbursement methodology by combining units of service, decreasing the number of cost areas, deleting sections regarding DHS ownership of home unit equipment to reflect current practices, and revising the language for clarification. Burton F. Raiford, commissioner, has determined that for the first five- year period the proposed sections will be in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the sections. Mr. Raiford 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 that the public will have a better understanding of the reimbursement methodology. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the proposed sections. Questions about the content of the proposal may be directed to Kathy E. Hall at (512) 450-3702 in DHS's Rate Analysis Section. Written comments on the proposal may be submitted to Nancy Murphy, Agency Liaison, Policy and Document Support- 009, Texas Department of Human Services W-402, P.O. Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the Texas Register. Definitions 40 TAC sec.52.101 The amendment is proposed under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer public assistance programs. The amendment implements sec.sec.22.001-22.024 of the Human Resources Code. sec.52.101. Definitions of Program Terms. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. [Local-The geographic area to be served by the provider agency, within the radius of a local telephone call to the largest city or town covered by the emergency response contract.] [Long distance -The geographic area to be served by the provider agency, outside the local call area of the largest city or town covered by the emergency response contract.] 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 31, 1994. TRD-9435392 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Proposed date of adoption: May 1, 1994 For further information, please call: (512) 450-3765 Claims 40 TAC sec.52.501, sec.52.502 The amendments are proposed under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer public assistance programs. The amendments implement sec.sec.22.001-22.024 of the Human Resources Code. sec.52.501. Billing and Claims Payment. (a) The Texas Board of Human Services sets the unit rate ceiling as specified in sec.52.502 of this title (relating to Reimbursement Methodology for Emergency Response Services).
                                                        [ceilings for local and long distance service delivery based on data obtained from the cost report that each provider agency submits to the department. The department establishes the methodology for setting the reimbursement unit rate ceilings and establishes allowable and unallowable costs and cost report requirements.] (b) The Texas Department of Human Services (DHS)
                                                          [department] reimburses the provider agency according to the rate
                                                            [rate(s)] specified in the contract for the
                                                              [each] unit of service to each client for whom the provider agency has received an approval for CCAD services -referral response form authorizing the provider agency to provide emergency response services. [(c) The long-distance rate may apply if the client lives outside the local call area of the largest city or town within the geographic area to be served by the provider agency.] (c)
                                                                [(d)] DHS
                                                                  [The department] pays the contract-specific unit rate not to exceed the
                                                                    departmentally set rate
                                                                      [rates]. (1) If the provider agency serves private-pay persons according to DHS
                                                                        [department] standards, the contract-specific unit rate cannot exceed the average private-pay rate. (2) DHS
                                                                          [Department] staff calculate the private-pay rate by totaling the rates charged to private-pay persons receiving services and dividing the total by the number of private-pay persons. The resultant figure is the maximum unit rate for the entire contract period. (3) DHS
                                                                            [The department] does not pay separate installation fees, one-time fees, or special fees. These fees, however, can be considered in determining the private-pay monthly rate by amortizing them over a 12-month period. (d)
                                                                              [(e)] DHS
                                                                                [The department] reimburses the cost of the required emergency response equipment through the contract-specific unit rate. This equipment includes the call button, the home communicator unit that relays emergency signals, jacks, and adapters. The cost of equipment at the response center is not reimbursable. (e)
                                                                                  [(f) ] DHS
                                                                                    [The Texas Department of Human Services (DHS)] negotiates
                                                                                      [may negotiate] a single-unit rate [that combines local and long distance service delivery]. The single rate must not exceed the [highest] ceiling. [The rate should be approximately proportional to the projected number of local and long distance clients.] (f)
                                                                                        [(g)] The unit of service for emergency response services is one calendar month. The provider agency is eligible for payment for a full month of service if the client receives services for any part of the month. (g)
                                                                                          [(h)] The provider agency must not charge or take other recourse against the client, family members, or persons acting on the client's behalf for any claim DHS
                                                                                            [the department] denied or reduced because the provider agency failed to meet DHS
                                                                                              [department] rules, policies, or procedures. (h)
                                                                                                [(i)] The provider agency is not entitled to payment if: (1) services are not authorized on the approval for CCAD services-referral response form; (2) the monthly systems check for each client is not conducted according to DHS [department] rules and procedures; or (3) services are delivered after the client's service delivery authorization date has expired or was terminated. (i)
                                                                                                  [(j)] DHS may withhold a provider agency's vendor payments for reasons including, but not limited to, the following: (1) failure to comply with the terms of the contract; (2) failure to comply with rules in the provider manual; (3) failure to comply with licensure requirements; or (4) termination of the contract (voluntary or involuntary). (j)
                                                                                                    [(k)] If the contract is terminated, DHS
                                                                                                      [the department] places a vendor hold on one or more of the provider agency's contracts with DHS
                                                                                                        [the department]. The vendor hold is not released until: (1) a close-out audit is conducted and resolved; or (2) an irrevocable letter of credit in a format approved by DHS
                                                                                                          [the department] is submitted to release all or a portion of vendor payments on hold. (k)
                                                                                                            [(l)] DHS renegotiates rates annually with existing provider agencies based on the unit rate ceiling
                                                                                                              [ceilings] in effect. sec.52.502. Reimbursement Methodology for Emergency Response Services. (a) Cost reporting. (1) Content of cost report. Each provider agency must submit financial and statistical information at least annually in a cost report prescribed by the Texas Department of Human Services (DHS)
                                                                                                                [department]. (2) (No change.) (3) Reporting period. The provider agency must prepare the cost report to reflect its activities during the previous fiscal year. At DHS's
                                                                                                                  [the department's] discretion, cost reports may be required for other periods. (4) Failure to file an acceptable cost report. Failure to file a cost report according to all applicable rules and instructions may result in DHS
                                                                                                                    [the department] withholding all provider agency payments until the provider agency submits an acceptable report. (5) (No change.) (6) Financial audits. Desk audits and on-site audits are performed periodically on all provider agencies participating in the program. The frequency and nature of the audits are determined by DHS
                                                                                                                      [the department] but are not less than that required by federal regulations relating to the administration of the program. Failure to allow DHS [the department] to perform an audit in sufficient detail to verify reported information may result in the provider agency payments being withheld. (7)-(8) (No change.) (9) Amended Cost Report Due Dates. All contracted providers must submit cost reports to DHS
                                                                                                                        [the Texas Department of Human Services (DHS)] in a manner prescribed by DHS
                                                                                                                          [the department]. DHS accepts amended cost reports submitted on the request of the provider until 180 days after the due date of the cost report [or 15 working days prior to the public hearing on proposed rates, whichever occurs first]. Since this is a prospective reimbursement system without a provision for reconciliation, amended cost reports filed after this date have no effect on the rate and are not accepted. [Amended cost report information that cannot be verified by 10 working days prior to the hearing will not be used in rate determination.] (10) (No change.) (b) Reimbursement rate ceiling determination. (1) The reimbursement rate ceiling is determined on a per-month basis [for local and long distance service]. The ceiling applies to all provider agencies uniformly, regardless of geographic location or other factors. (2) The reimbursement rate ceiling is determined by the analysis of financial and statistical data submitted by provider agencies on cost reports and, as deemed appropriate,
                                                                                                                            a market survey analysis of emergency response equipment suppliers. [(3) The median cost of home unit equipment, as determined from the market survey of emergency response equipment suppliers, is used for rate ceiling determination. The median cost depreciated over a five-year period is factored into the per-month rate ceiling. Interest expenses incurred to purchase the home unit equipment are an allowed cost and are considered in the rate ceiling determination.] (3)
                                                                                                                              [(4)] The rate ceiling determination process recasts reported expense data in a consistent manner to determine per-month allowed costs. Reported expenses are combined into three
                                                                                                                                [eight] cost areas-
                                                                                                                                  [:] responder, program operations, and facility. [(A) salaries and fringe benefits; [(B) travel; [(C) telephone; [(D) building; [(E) maintenance; [(F) training; [(G) administration; and [(H) home unit equipment.] (4)
                                                                                                                                    [(5)] Allowable expenses are projected from the provider agency's reporting period to the next ensuing rate period. Economic inflators or adjusters determined reasonable and appropriate by DHS
                                                                                                                                      [the department] are used to calculate a prospective expense. (5)
                                                                                                                                        [(6)] The Texas Board of Human Services is responsible for approving the reimbursement rate ceiling. [(7) The reimbursement rate ceiling may not exceed the intermediate care facility (ICF) reimbursement rate set by the Texas Board of Human Services.] (c) Contract-specific unit rate. The actual rates for each contract are negotiated between DHS
                                                                                                                                          [determined through the procurement process with department] staff and the provider agency. [(1) Provider agencies that are currently providing services with department- owned equipment that was purchased on a cost reimbursement basis receive the unit rate less the equipment reimbursement until the department's five-year disposition rights on the purchased equipment expire. Services provided with department-owned equipment after the five-year limitation expires may be reimbursed at a rate that includes the equipment reimbursement. [(2) The contract-specific unit rate for each type of service includes reimbursement for salaries and fringe benefits, travel, telephone, building, maintenance, training, administration, and home unit equipment expenses. [(3) The equipment reimbursed under the unit rate becomes the provider agency's property.] [(4)] The contract-specific unit rate DHS
                                                                                                                                            [the department] pays the provider agency is the full cost for emergency response services. The provider agency must not bill the client for any additional charges. (d) -(e) (No change.) (f) Unallowable costs. Unallowable costs are expenses the provider agencies incurred that are not directly or indirectly related to providing contracted services according to applicable laws, rules, and standards. The following list of expenses is not inclusive but rather a guide to the various unallowable costs frequently seen in cost reports: (1)-(2) (No change.) (3) business expenses from business operations not related to providing services for which DHS
                                                                                                                                              [the department] has contracted; (4)-(7) (No change.) (8) expenses incurred for services not related to providing services contracted for by DHS
                                                                                                                                                [the department]; (9)-(14) (No change.) (15) insurance expenses for life insurance premiums if the beneficiary is the provider agency, and for insurance on assets not related to delivering services for which DHS
                                                                                                                                                  (the department) has contracted; (16) interest expense on loans for assets not related to delivering of services for which DHS
                                                                                                                                                    (the department) has contracted (interest expenses must be reduced or offset by interest income except interest income from funded depreciation accounts or qualified pension funds); (17) personal compensation to persons not providing services contributory to delivering services for which DHS
                                                                                                                                                      (the department) has contracted; (18) personal expenses not related to delivering services for which DHS
                                                                                                                                                        (the department) has contracted; (19) (No change.) (20) rental or lease expense on any item not related to delivering services for which DHS
                                                                                                                                                          (the department) has contracted; (21) tax expenses for federal, state, or local income tax, and any tax levied on assets not related to delivering services for which DHS
                                                                                                                                                            [the department] has contracted; [and] (22) transportation expenses for vehicles not generally suited to functions related to delivering services for which DHS
                                                                                                                                                              [the department] has contracted. Mileage can be included at a cost per mile not to exceed the current reimbursement rate set by the legislature for state employees travel. Mileage is allowable if documentation is adequate and if the expense incurred was related to delivering services for which DHS
                                                                                                                                                                [the department] has contracted; and
                                                                                                                                                                  [.] (23) the expense of base-station equipment at the response center. 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 31, 1994. TRD-9435393 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Proposed date of adoption: May 1, 1994 For further information, please call: (512) 450-3765