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 IV. Office of the Secretary of State 
  Chapter 71. Office of the Secretary of State 
  
  Private Use of the State Seal of Texas 
 
  1 TAC sec.71.50 
 
  The Office of the Secretary of State proposes an amendment to sec.71.50, 
concerning the private use of the state seal of Texas. The proposed amendment 
designates the standard design for the reverse of the state seal and assigns 
paragraph numbers to the designs of the state seal, the reverse side of the 
state seal and the state arms, for easier reference. 
 Guy Joyner, staff attorney, has determined that for the first five-year period 
the proposed section is in effect there will be no fiscal implications for state 
or local government as a result of enforcing the section. 
 Mr. Joyner also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be to provide individuals and companies with an official 
illustration of the reverse of the state seal. 
 There will be no effect on small businesses. There is no anticipated additional 
economic cost to persons who are required to comply with the section as 
proposed. 
 Comments on the proposal may be submitted to Guy Joyner, Chief, Legal Support 
Unit, Statutory Documents Sections, Office of the Secretary of State, P.O. Box 
12887, Austin, Texas 78711-2887. 
 The amendment is proposed under the Government Code, sec.2001.004(1) and the 
Business and Commerce Code, sec.17.08, which provide the secretary of state with 
the authority to prescribe and adopt rules. 
 The amendment implements Texas Civil Statutes, Article 6139f(d), and affects 
the Business and Commerce Code, sec.17.08. 
 
 
  sec.71.50. Standard Designs. <ol> The following illustrations depict the 
standard designs for the state seal, the reverse of the state seal, and the 
state arms. 
 <nl>(1) State Seal. 
 
  [graphic] 
 <nl>(2) Reverse of the State Seal. 
 
  [graphic] 
 <nl>(3) State Arms. 
 
  [graphic] 
     
  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 March 30, 1994. 
 TRD-9438357 
  Audrey Selden 
 Assistant Secretary of State 
 Office of the Secretary of State 
    Earliest possible date of adoption: May 6, 1994 
 For further information, please call: (512) 463-5570 
         
           Part V. General Services Commission 
  Chapter 113. Central Purchasing Division 
  
  Cooperative Purchasing Program 
 
  1 TAC sec.sec.113.81, 113.83, 113.85, 113.87 
 
  The General Services Commission proposes amendments to  ssec.113.81, 113.83, 
113.85, and 113.87, concerning the allowance of assistance organizations and 
mental health and mental retardation community centers to purchase goods through 
the General Services Commission Cooperative Purchasing Program. The amendments 
also include catalogue purchasing procedures for cooperative purchasing 
participants. The amendments update rules to conform to Texas Civil Statutes, 
Article 601b, sec.3.04, enacted by the 73rd Legislature. 
 Pat Martin, director, Purchasing Division, has determined that for the first 
five-year period the sections are in effect there will be no fiscal implications 
for state or local government as a result of enforcing or administering the 
sections. 
 Ms. Martin 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 the allowance of certain service organizations and mental 
health and mental retardation centers to enjoy the savings offered by 
participation in the Cooperative Purchasing Program. There will be no effect on 
small businesses. The anticipated economic costs to persons who choose to take 
advantage of cooperative buying will be only the yearly fee which will be well 
outweighed by the savings provided through the program. 
 Comments on the proposal may be submitted to Judith M. Porras, General Counsel, 
General Services Commission, P.O. Box 13047, Austin, Texas 78711-3047. Comments 
must be received no later than 30 days from the date of publication of the 
proposal in the Texas Register. 
 The amendments are proposed under Texas Civil Statutes, Article 601b, which 
provide the General Services Commission with the authority to promulgate rules 
necessary to accomplish the purpose of the section. 
 
 
  sec.113.81. General. 
 
  (a) <nl>The<ol> [Pursuant to Texas Civil Statutes, Article 601b, Article 3, 
the] commission has instituted and maintains an effective and economical system 
for purchasing supplies, materials, services, and equipment for State of Texas 
agencies subject to biennium general appropriations acts. 
   
  (b) It shall be the policy of the commission to perform purchasing services 
for <nl>qualified entities <ol> [local governments] when the commission 
considers it feasible. The program to provide purchasing services for 
<nl>qualified entities<ol> [local governments] shall be known as the Cooperative 
Purchasing Program and may include: 
 
  (1) the extension of [state automated] term contract prices [to participating 
local governments]; 
   
  (2) solicitation of bids on the open market <nl>or schedule<ol> for items 
desired [by a local government]; [and] 
   
  (3) provision of information and technical assistance <nl>; and<ol> [to local 
governments about the purchasing program.] 
   
  <nl>(4) the availability of information regarding catalogue purchase procedure 
for automated information systems. 
     
  (c) The commission shall charge a participating  <nl>qualified entity<ol> 
[local government] an amount not to exceed the costs incurred by the commission 
in providing purchasing services [to the local government] under this program. 
The fees shall be reviewed periodically and adjusted as required to 
<nl>ensure<ol> [insure] recovery of costs incurred to operate the program. 
 
     
  sec.113.83. Definitions.  The following words and terms, when used in this 
undesignated head, shall have the following meanings, unless the context clearly 
indicates otherwise. 
   
   Agent of record -An employee or official designated by a <nl>qualified 
entity<ol> [local government] as the individual responsible to represent the 
<nl>qualified entity<ol> [local government] in all matters relating to the 
program. 
   
   Cooperative purchasing program-A program to provide purchasing services to  
<nl>qualified entities<ol> [local governments]. 
   
   List of approved equipment-Items available for purchase under term contracts 
entered into by the commission that may be purchased through the commission by 
school districts pursuant to Texas Education Code, sec.21.901. 
   
   [Local government -A county, municipality, school district, special district, 
junior college district, or other legally constituted political subdivision of 
the state.] 
   
  <nl>   Qualified entity -an entity that qualifies for participation in the 
cooperative purchasing program: 
 
  <nl>(A) Local government-a county, municipality, school district, special 
district, junior college district, or other legally constituted political 
subdivision of the state; 
   
  <nl>(B) Mental health and mental retardation community centers -as defined in 
Texas Civil Statutes, Article 601b,  s3.04, that receive grants-in-aid under the 
provisions of the Texas Mental Health and Mental Retardation Act, Article 4; 
   
  <nl>(C) Assistance organizations as defined in Texas Civil Statutes, Article 
601b,  s9.01, that receive any state funds. 
     
   Resolution-Document of legal intent adopted by the governing body of a 
<nl>qualified entity <ol> [local government] that evidences the <nl>qualified 
entity's<ol> [local government's] participation in the cooperative purchasing 
program. 
 
   
  sec.113.85. Participation in Cooperative Purchasing. 
 
  (a) <nl>Qualified entity<ol> [Local government] participation in the 
cooperative purchasing program is on a voluntary basis and to the extent the 
commission deems feasible. The director for purchasing shall determine the 
feasibility of participation based on availability of resources to perform the 
required purchasing services. A <nl>qualified entity<ol> [local government] may 
be enrolled in the program only after submission of a resolution. The resolution 
must specify the agent of record, acknowledgment of obligation to pay 
participation fees established by the commission, and be signed by the chairman 
of the governing body. 
   
  (b) Enrollment in the program will be in effect from the day of receipt by the 
commission of a complete resolution, until notification is received from the 
<nl>qualified entity<ol> [local government] to discontinue its participation in 
the cooperative purchasing program. Any change in the resolution of a 
jurisdiction or participation status must be made in writing by the agent of 
record or chairman of the governing body. 
   
  (c) Requests for purchase on the open market <nl>or schedule<ol> may be made 
in writing to the director for purchasing. The director for purchasing or his 
designee will determine the feasibility of accomplishing the purchase on a case-
by-case basis, and will advise the <nl>qualified entity <ol> [local government] 
of the determination within a reasonable period of time. 
 
     
  sec.113.87. Responsibilities of <nl>Qualified Entities  [Local Governments]. 
 
  (a) A <nl>qualified entity<ol> [local government] participating in the 
cooperative purchasing program must: 
 
  (1) submit a resolution evidencing its intent to participate in the 
cooperative purchasing program and pay costs associated therewith; 
   
  (2) send <nl>automated term<ol> contract <nl>and schedule <ol> requisitions to 
the commission for processing; send a copy of all non-automated contract 
purchase orders to the commission for data collection [and forwarding to the 
contract vendor]; 
   
  (3) pay the vendor under each contract directly; and 
   
  (4) be responsible for the vendor's compliance with all terms and conditions 
of performance under the contract. 
     
  (b) A <nl>qualified entity<ol> [local government] that purchases an item from 
a state contract satisfies any state law requiring the <nl>qualified entity<ol> 
[local government] to seek competitive bids for the purchase. 
   
  <nl>(c) A qualified entity that utilizes the catalogue purchase procedure 
satisfies any requirements of Texas Civil Statutes, Article 601b,  s3.081 and 
sec.113.19 of this title (relating to Catalogue Purchase Procedure for Automated 
Information Systems). 
 
  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 March 29, 1994. 
 TRD-9438300 
  Rose-Michel Munguia 
 Legal Counsel 
 General Services Commission 
    Earliest possible date of adoption: May 6, 1994 
 For further information, please call: (512) 463-3583 
         
               Chapter 123. Facilities Planning and Construction Division 
  
  Building Construction Administration 
 
  1 TAC sec.123.23 
 
  The General Services Commission proposes new sec.123.23, concerning a Small 
Contractor Participation Assistance Program (the"SCPAP"). The new section will 
implement provisions of House Bill 2626, sec.32, sec.5.37, Acts of the 73rd 
Legislature, 1993. 
 John E. Hodges, director, Design, Construction, and Leasing Division, has 
determined that for the first five-year period the new section is in effect 
there will be no fiscal implication for state or local government as a result of 
enforcing or administering the section. 
 Mr. Hodges also has determined that for each year of the first five years the 
new section is in effect the public benefit anticipated as a result of 
administering the SCPAP will be the increased participation of small contractors 
in public works construction projects and savings of project cost generated by 
combined insurance purchases for public works projects. There will be no effect 
on small businesses. There is no anticipated economic cost to persons required 
to comply with the rule as proposed. 
 Comments on the proposed new section may be submitted to Judith M. Porras, 
General Counsel, General Services Commission, P.O. Box 13047, Austin, Texas 
78711-3047. Comments must be received no later than 30 days from the date of 
publication of the proposal in the Texas Register. 
 The new section is proposed under Texas Civil Statutes, Article 601b, sec.5. 
37, which provide the General Services Commission with the authority to 
promulgate rules necessary to accomplish the purpose of Article 5. 
 
 
  sec.123.41. Small Contractor Participation Assistance Program. 
 
  (a)  The commission shall establish the Small Contractor Participation 
Assistance Program as set forth in this section. 
   
  (b) Assistance under the program shall be available on projects performed by 
the commission for construction, alteration, or repair of public buildings for 
which the estimated cost exceeds $20 million. In determining the estimated cost 
of a project, all work financed under a single bond issue or schedule of 
appropriated projects may be aggregated. 
   
  (c) To be eligible for assistance under the program, a contractor must be 
eligible for assistance from the United States Small Business Administration. 
   
  (d) The commission shall establish a technical assistance plan, set forth as 
follows: 
 
  (1) The commission may contract with one or more entities to provide technical 
assistance to aid small contractors to develop the skills necessary to 
participate in the program. 
   
  (2) The technical assistance plan shall include information and assistance in: 
 
  (A) estimating bids, the bidding process, scheduling, and understanding bid 
documents; 
   
  (B)  reading construction drawings and other analogous documents; 
   
  (C)  business accounting, bonds, and bond requirements; 
   
  (D)  negotiations with general contractors; 
   
  (E) safety training; and 
   
  (F) any other technical and administrative assistance considered appropriate 
and necessary given the complexity and scope of the particular public works 
project. 
     
  (3) In awarding contracts for technical assistance, the commission may use a 
competitive bid process, a competitive proposal process, or may negotiate 
directly with service providers. If the commission negotiates directly with 
service providers, it shall: 
 
  (A)  select a qualified provider of the services on the basis of demonstrated 
competence and qualifications; and 
   
  (B) then attempt to negotiate a contract at a fair and reasonable rate. 
       
  (e) The commission shall establish a financing assistance plan, set forth as 
follows: 
 
  (1) The commission may contract with one or more entities to provide financing 
assistance to small contractors. Financing assistance shall not include loans, 
grants, loan guarantees, or other forms of direct financial aid. Financing 
assistance shall include assistance in identifying and obtaining financing 
arrangements from other sources. 
   
  (2) In awarding financing assistance contracts, the commission may use a 
competitive bid process or a competitive proposal process, as may be appropriate 
to the project in question. 
     
  (f)  Any party awarded a contract to provide technical or financing assistance 
shall be an independent advisor and not a representative of the commission, and 
none of such party's advice or assistance shall necessarily be the position of 
the commission on any matter in question. Whenever a technical or financing 
assistance provider gives advice or assistance to a small contractor, the 
provider shall, in writing, inform the small contractor that the provider's 
advice and services are those of the provider and do not necessarily set forth 
the position of the commission on any given issue. 
   
  (g) The commission shall establish a public outreach plan, set forth as 
follows: 
 
  (1) The commission shall publish notices annually in five newspapers of 
general circulation describing the program and giving the names, addresses, and 
telephone numbers of the technical and financing assistance providers. 
   
  (2) For each project covered by the program, the names, addresses, and 
telephone numbers of the technical and financing assistance providers shall be 
published in the specifications, together with a description of the program. 
   
  (3) All advertisements and notices concerning projects covered by the program 
shall include the names, addresses, and telephone numbers of the technical and 
financing assistance providers. 
   
  (4) In each project covered by the program, the general contractor shall be 
required, as a term of the contract with the state, to provide to all 
subcontractors the names, addresses, and telephone numbers of the technical 
financing assistance providers. 
     
  (h) The commission shall provide for centralized purchasing of required 
insurance and bond coverage, set forth as follows: 
 
  (1) For each project under the program, the commission shall make centralized 
purchases of: 
 
  (A) workers' compensation insurance coverage; 
   
  (B) employers' liability insurance coverage; 
   
  (C)  commercial general and excess liability coverage; 
   
  (D) payment and performance bonds; and 
   
  (E) any other analogous coverage the commission considers necessary and 
reasonable for the particular project. 
     
  (2) Such centrally purchased coverages shall be incorporated into the contract 
with the state, and any contractor who enters into a contract with the state 
under a project covered by the program shall be required to pay premiums and 
fees as set forth in the central purchase contracts. 
 
  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 March 29, 1994. 
 TRD-9438301 
  David R. Brown 
 Legal Counsel 
 General Services Commission 
    Earliest possible date of adoption: May 6, 1994 
 For further information, please call: (512) 463-3583 
         
               
  Prevailing Wage Rate Determination 
 
  1 TAC sec.123.32 
 
  The General Services Commission proposes an amendment to  s123.32, concerning 
prevailing wage rate determinations. The amendment provides for establishment of 
prevailing wage rates by adoption of rates from U.S. Department of Labor surveys 
under the Davis-Bacon Act, in accordance with Texas Civil Statutes, Article 
5159a. The amendment clarifies the procedure for using wage rate information 
from outside the survey area in instances where the survey area does not provide 
sufficient data. 
 Judith M. Porras, 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. 
 Ms. Porras 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 increased economy and accuracy in determination of prevailing 
wage rates. There will be no effect on small businesses. There is no anticipated 
economic cost to persons required to comply with the rule as proposed. 
 Comments on the proposal may be submitted to Judith M. Porras, General Counsel, 
General Services Commission, P.O. Box 13047, Austin, Texas 78711-3047. Comments 
must be received no later than 30 days from the date of publication of the 
proposal in the Texas Register. 
 The amendment is proposed under Texas Civil Statutes, Article 601b, which 
provide the General Services Commission with the authority to promulgate rules 
necessary to accomplish the purpose of the Article. 
 
 
  sec.123.32. Data Gathering Procedures. 
 
  (a) The commission shall conduct a survey of contractors, labor organizations 
and any other interested parties in the locality in which the work is performed 
to determine the wages paid to various classifications of workers and the number 
of workers receiving that wage. <nl>Rather than conduct a survey, the commission 
may adopt the prevailing wage rates for the locality as determined by the U.S. 
Department of Labor in accordance with the Davis-Bacon Act, if the survey on 
which the Davis-Bacon Act rate was founded was conducted within three years 
before the project in question was bid. 
   
  (b) <nl>The survey shall be conducted in the city, county, council of 
governments, or other political subdivision of the state that most closely 
corresponds to the location of the work to be performed. If, in such political 
subdivision, there is insufficient data to establish the prevailing wage rates 
for certain types of work, the commission may look to a larger political 
subdivision or to a nearby political subdivision for the limited purpose of 
acquiring data necessary to establish the prevailing wage rates for those types 
of work.<ol> [If information is presented to the commission indicating that a 
survey in a particular county is not sufficiently representative due to the lack 
of construction projects of comparable size in that county or, in the judgment 
of the commission, survey data is in some other way insufficient, the commission 
may extend the area of a survey to contiguous counties. If the data is still 
insufficient, the commission may survey the service region, established under 
Chapter 19, Article V, sec.120, Acts, 72nd Legislature, F.C.S. (1991), in which 
the county of the project is located.] 
   
  (c)-(d) (No change.) 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 29, 1994. 
 TRD-9438302 
  David Brown 
 Legal Counsel 
 General Services Commission 
    Earliest possible date of adoption: May 6, 1994 
 For further information, please call: (512) 463-3583 
         
                   
  TITLE 22. EXAMINING BOARDS 
 Part VIII. Texas Appraiser Licensing and Certification Board 
  Chapter 153. Provision of the Texas Appraiser Licensing and Certification Act 
  
  22 TAC sec.sec.153.5, 153.9, 153.20 
 
  The Texas Appraiser Licensing and Certification Board proposes amendments to 
sec.513.5, concerning to fees, sec.153.9, concerning to applications, and 
sec.153.20, concerning to guidelines for revocation and suspension; 
investigations. 
 The proposed amendment to sec.153.5(a) will provide for the collection of a fee 
for a returned check. The size of the fee will be equal to that charged for a 
returned check by the Texas Real Estate Commission. The Texas Real Estate 
Commission provides administrative support, including collection of fees and fee 
processing for the Texas Appraiser Licensing and Certification Board. The 
proposed amendment to sec.153.5(b) eliminates the cashier's check or money order 
requirement for fee submission. It would also require future fees paid by those 
who have not made good on a returned check to be in the form of a cashier's 
check or money order. The proposed amendments to sec.153.9 would remove 
terminology from various applications and other forms that specify that fees 
must be submitted in the form of a cashier's check or money order. 
 The proposed amendment to sec.153.20 would add failure to make good on a 
returned check within 30 days to those causes for which a license or 
certification could be suspended or revoked. 
 Renil C. Liner, commissioner, has determined that for the first five years the 
amendments are in effect there will be an additional cost to state government as 
a result of enforcing and administering the proposed amendments of approximately 
$1,200-$1,500 per year. 
 Mr. Liner also has determined that of each year of the first five years the 
amendments are in effect, the public benefit anticipated as a result of 
enforcing the section will be a reduction in time and cost for purchasing 
cashier's checks or money orders for submission of fees to the Board. 
 No fiscal implications are involved for local government. 
 There will be no effect on small businesses as a result of enforcing the 
sections. There will be no local employment impact. 
 The anticipated reduction in cost to persons who are required to comply with 
the proposed amendment is projected to be approximately $1 to $10 for each fee 
submitted. 
 Comments may be submitted to Renil C. Liner, Commissioner, Texas Appraiser 
Licensing and Certification Board, P.O. Box 12188, Austin, Texas 78711-2188. 
 The amendments are proposed under the Texas Appraiser Licensing and 
Certification Act (Texas Civil Statutes, Article 6573a.2, sec.5), which provide 
the Texas Appraiser Licensing and Certification Board with authority to adopt 
rules for the licensing and certification of real estate appraisers. 
 
 
  sec.153.5 Fees. 
 
  (a) (No change.) 
 
  (1)-(9) (No change.) 
   
  (10) a fee for an addition or termination of sponsorship of an appraiser 
trainee of $20; [and] 
   
  (11) a fee for replacing a lost or destroyed certificate of $15<nl>; and<ol> 
[.] 
   
  <nl>(12) a fee for a returned check equal to that charged for a returned check 
by the Texas Real Estate Commission. 
     
  (b) Fees must be submitted [in the form of a cashier's check or money order] 
payable to the order of the Texas Appraiser Licensing and Certification Board. 
Fees are not refundable once an application has been accepted for filing. 
<nl>Persons who have submitted a check which has been returned, and who have not 
made good on that check within 30 days, for whatever reason, shall submit all 
future fees in the form of a cashier's check or money order. 
   
  (c) (No change.) 
 
     
  sec.153.9. Applications. 
 
  (a) (No change.) 
   
  (b) The Texas Appraiser Licensing and Certification Board adopts by reference 
the following forms approved by the board in 1991 and published and available 
from the board, P.O. Box 12188, Austin, Texas 78711-2188: 
 
  (1) TALCB Form <nl>1.3<ol> [1.2], Application for Appraiser Certification or 
Licensing; 
   
  (2)-(3) (No change.) 
   
  (4) TALCB Form <nl>4.4<ol> [4.3], Application for Approval as an Appraiser 
Trainee; 
   
  (5) (No change.) 
   
  (6) TALCB Form <nl>6. 2<ol> [6.1], Temporary Non-Resident Appraiser 
Registration; 
   
  (7) TALCB Form <nl>8.1<ol> [8.0], Change of Office Address [by a Licensed or 
Certified Appraiser]; 
   
  (8) TALCB Form <nl>9.1<ol> [9.0], Addition or Termination of Appraiser Trainee 
Sponsorship; 
   
  (9) TALCB Form <nl>10. 1<ol> [10.0], Supplement to Application for Appraiser 
Certification or Licensing by Reciprocity. 
     
  (c)-(g) (No change.) 
 
     
  sec.153.20. Guidelines for Revocation and Suspension; Investigation. 
 
  (a) (No change.) 
 
  (1)-(13) (No change.) 
   
  <nl>(14) has failed to make good a check issued to the board within 30 days 
after the board has mailed a request for payment by certified mail to the 
licensee's last known business address as reflected by the board's records. 
     
  (b)-(n) (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 March 29, 1994. 
 TRD-9438287 
  Renil C. Liner 
 Commissioner 
 Texas Appraiser Licensing and Certification Board 
    Earliest possible date of adoption: May 6, 1994 
 For further information, please call: (512) 465-3950 
         
               Part XI. Board of Nurse Examiners 
  Chapter 217. Licensure and Practice 
  
  22 TAC sec.sec.217.3-217.6 
 
  (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 Board of 
Nurse Examiners or in the Texas Register office, Room 245, James Earl Rudder 
Building, 1019 Brazos Street, Austin.) 
   
  The Board of Nurse Examiners proposes to repeal sec.sec.217.3-217.6, 
concerning Candidate with a Disability, Temporary License and Endorsement, 
Requirements for Licensure of Nurses Not Eligible for Temporary Licensure or 
Endorsement Under sec.217.4, and Temporary Permits. The proposed repeal will 
permit the adoption of new, more current rules. 
 Louise Waddill, Ph.D., R.N., executive director, has determined that for the 
first five-year period the repeals are in effect there will be no fiscal 
implications for state or local government as a result of enforcing or 
administering the repeals. 
 Ms. Waddill 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 by omission. 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 Louise Waddill, Ph.D., R.N., 
Executive Director, Board of Nurse Examiners, Box 140466, Austin, Texas 78714. 
 The repeals are proposed under Texas Civil Statutes, Article 4514, sec.1, which 
provide the Board of Nurse Examiners with the authority and power to make and 
enforce all rules and regulations necessary for the performance of its duties 
and conducting of proceedings before it. 
 
 
  sec.217.3. Candidate with a Disability. 
 
   
  sec.217.4. Temporary License and Endorsement. 
 
   
  sec.217.5. Requirements for Licensure of Nurses Not Eligible for Temporary 
Licensure or Endorsement Under sec.217.4. 
 
   
  sec.217.6. Temporary Permits. 
 
  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 March 25, 1994. 
 TRD-9438249 
  Louise Waddill, Ph.D., R.N. 
 Executive Director 
 Texas Board of Nurse Examiners 
    Earliest possible date of adoption: May 6, 1994 
 For further information, please call: (512) 835-8650 
         
         
  22 TAC sec.sec.217.3-217.6 
 
  The Board of Nurse Examiners proposes new sec.sec.217.3-217.6, concerning 
Temporary Permits, Accustomation Course, Temporary License and Endorsement, and 
Requirements for Licensure of Nurses Not Eligible for Temporary Licensure or 
Endorsement under  s217.5. sec.217.3, temporary permits, is being proposed to 
clarify the rules in relation to individuals eligible for permits in Texas based 
on the implementation of Computer Adaptive Testing beginning April 1, 1994. 
sec.217.4, Accustomation Course, is offered as a separate section, previously 
included in the permit section. sec.217.5 and sec.217.6 are being renumbered. 
 Louise Waddill, Ph.D., R.N., executive director, has determined that for the 
first five-year period the sections are in effect there will be no fiscal 
implications for state or local government as a result of enforcing or 
administering the sections. 
 Ms. Waddill 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 section* will be to ensure that only individuals eligible for licensure in 
Texas receive temporary permits while awaiting results of the NCLEX-RN. 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 Louise Waddill, Ph.D., R.N., 
Executive Director, Board of Nurse Examiners, Box 140466, Austin, Texas 78714. 
 The new sections are proposed under Texas Civil Statutes, Article 4514, sec.1, 
which provide the Board of Nurse Examiners with the authority and power to make 
and enforce all rules and regulations necessary for the performance of its 
duties and conducting of proceedings before it. 
 
 
  sec.217.3. Temporary Permit. 
 
  (a) United States and Canadian candidates eligible for temporary permits. 
 
  (1) New graduates of accredited nursing programs in the United States or 
Canada who are applying for initial licensure in Texas will be issued a 
temporary permit after they have been determined eligible. 
   
  (2) The permit, which is not renewable, is valid for 60 days from the date of 
eligibility or until NCLEX-RN results are received. 
   
  (3) The permit holder must work under the direct supervision of a registered 
professional nurse who is working on the same unit and is readily available to 
the GN for consultation and assistance. The GN shall not be placed in a charge 
position or work in independent practice settings. 
     
  (b) Foreign candidates eligible for temporary permits. 
 
  (1) Graduates of accredited nursing programs located outside of the United 
States or Canada will be issued a temporary permit if the following conditions 
are met: 
 
  (A) the candidate has never written the SBTPE, NCLEX-RN or CNATSE; 
   
  (B) has passed CGFNSE; and 
   
  (C) is enrolled in a board-approved nursing accustomation course. 
     
  (2) The candidate must satisfactorily complete the accustomation course in 
order to be determined eligible to take the NCLEX-RN. 
   
  (3) The permit, which is not renewable, is valid for 60 days following 
successful completion of the accustomation course or until the NCLEX-RN results 
are received. 
   
  (4) The permit holder must work under the direct supervision of a registered 
professional nurse who is working on the same unit and is readily available to 
the GN for consultation and assistance. The GN shall not be placed in a charge 
position or work in independent practice settings. 
     
  (c) Registered nurses with inactive or delinquent licenses. A registered nurse 
who has not practiced nursing for four or more years may be issued a temporary 
permit for the limited purpose of completing a refresher course, extensive 
orientation to the practice of professional nursing or academic course. The 
permit is valid for six months and is nonrenewable. 
   
  (d) Registered nurses with a suspended, revoked, or surrendered license. A 
registered nurse whose license has been suspended, revoked, or surrendered 
through action by the board, may be issued a temporary permit for the limited 
purpose of meeting any requirement(s) imposed by the board in order for the 
nurse's license to be reissued. The permit is valid for six months and is 
nonrenewable. 
 
     
  sec.217.4. Accustomation Course. 
 
  (a) Within two examination years after the accustomation course is approved, 
at least 75% of the permitted foreign educated nurses must pass the NCLEX-RN on 
the first writing. 
   
  (b) In subsequent examination years the pass rate of permitted foreign 
educated nurses must remain at least 75% in a specific accustomation course in 
order for said course to maintain board approval. 
 
     
  sec.217.5. Temporary License and Endorsement. 
 
  (a) The requirements to obtain a temporary license which is valid for 12 weeks 
and is not renewable, are as follows: 
 
  (1) graduation from an accredited/approved nursing program in a professional 
school of nursing (general) of at least two academic years in length in a 
jurisdiction in which the academic requirements are equivalent to Texas. 
   
  (2) satisfactorily completing the licensure examination as follows. 
 
  (A) Candidates taking the SBTPE prior to July 1982 must make a minimum score 
of 350 on each of the five parts of the SBTPE. 
   
  (B) Candidates taking the NCLEX-RN prior to February 1989, must make a minimum 
score of 1,600. 
   
  (C) Candidates taking the NCLEX-RN February 1989 and thereafter must achieve a 
passing report. 
   
  (D) Candidates taking the CNATSE prior to August 1980 must make a minimum 
score of 350 on each of the five parts of the CNATSE. 
   
  (E)  Effective with the August 1980 CNATSE, a score of 400 is required for 
licensure; 
     
  (3) licensure in another jurisdiction which has requirements equivalent to 
Texas. 
   
  (4) filing of a notarized application for temporary licensure containing the 
following: 
 
  (A)  personal and background data; 
   
  (B) certification of graduation from an accredited/approved school; 
   
  (C) identification of all licensing authorities and jurisdictions where the 
applicant is licensed; 
   
  (D) attestation that the applicant meets current Texas licensure requirements 
and has never had disciplinary action taken by any licensing authority or 
jurisdiction in which the applicant holds, or has held licensure; 
   
  (E) evidence of English proficiency by Canadian applicants who took the CNATSE 
in French; 
   
  (F) a recent, fade-proof identification photograph, properly identified; and 
   
  (G) the required licensure fee, which is not refundable; 
     
  (5) any applicant applying for temporary licensure who has taken or is 
scheduled to take both the NCLEX-RN and the CNATSE will be licensed based on the 
results of the NCLEX-RN; 
   
  (6)  nurses who have not practiced professional nursing within the four years 
immediately preceding the request for temporary licensure, shall meet the 
requirements as stated in sec.217.8 of this title (relating to Inactive Status); 
   
  (7) nurses who have had disciplinary action at any time by any licensing 
authority are not eligible for temporary licensure. 
     
  (b) An applicant for permanent licensure by endorsement must meet the 
requirements of sec.217.5(a)(1)-(6) of this title (relating to Temporary License 
and Endorsement) and must provide the following: 
 
  (1) verification of academic and professional credentials from each licensing 
authority which includes the results of examination, seal of each licensing 
authority, and signature of each executive officer or designee; 
   
  (2) a written statement of good standing from each licensing authority or 
jurisdiction in which the applicant is licensed -verification of meeting other 
requirements set by statute; and 
   
  (3) if disciplined by any other licensing authority, the nurse must provide 
proof of fitness to practice professional nursing in Texas. 
 
       
  sec.sec.217.6. Requirements for Licensure of Nurses Not Eligible for Temporary 
Licensure or Endorsement Under sec.217.5. 
 
  (a) An applicant applying for licensure under this section must provide 
evidence of graduation from a governmentally accredited/approved nursing program 
in a professional school of nursing (general) of at least two academic years in 
length in which the academic requirements are equivalent to those of Texas. 
   
  (b) An application applying for licensure under this section must file a 
notarized application for registration containing the following: 
 
  (1) personal and background data; 
   
  (2) certification of graduation from an accredited/approved school; 
   
  (3) verification of the application by the licensing authority of the country 
where the applicant was originally licensed, which includes the results of the 
examination, seal of the licensing authority, and signature of the executive 
officer or designee; 
   
  (4)  identification of all licensing authorities and jurisdictions where the 
applicant is or has been licensed and an attestation as to the applicant's 
licensure status with each licensing authority; 
   
  (5) a recent fade-proof identification photograph, properly identified; 
   
  (6) except for Canadian graduates, evidence of passing the Commission on 
Graduates of Foreign Nursing Schools examination or its equivalent; 
   
  (7) evidence of English proficiency by Canadian applicants who took the CNATSE 
in French; 
   
  (8) required licensure fee and, when applicable, temporary permit fee; and 
   
  (9) a written statement of the applicant's licensure status from each 
licensing authority and jurisdiction in which the applicant is or has been 
licensed, which includes the seal of each licensing authority and signature of 
each executive officer or designee. 
     
  (c) Admission to the NCLEX-RN is contingent upon evidence of satisfactory 
completion of a board approved accustomation course as specified in sec.217.3(2) 
of this title (relating to Temporary Permit), if the applicant holds a temporary 
permit. 
 
  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 March 25, 1994. 
 TRD-9438250 
  Louise Waddill, Ph.D., R.N. 
 Executive Director 
 Texas Board of Nurse Examiners 
    Earliest possible date of adoption: May 6, 1994 
 For further information, please call: (512) 835-8650 
         
               Part XXII. Texas State Board of Public Accountancy 
  Chapter 501. Professional Conduct 
  
  General Provisions 
 
  22 TAC sec.501.2 
 
  The Texas State Board of Public Accountancy proposes an amendment to 
sec.501.2, concerning Definitions. The proposed amendment deletes the definition 
of "solicitation" which is no longer necessary because the board repealed the 
rule on solicitation. 
 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 the absence of an unnecessary definition. 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) 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 or advisable to carry in effect the purposes 
of the law; and sec.21 which contains the disciplinary procedures for actions 
and omissions by licensees. 
 The rule implements Texas Civil Statutes, Article 41a-1,  s6 and sec.21. 
 
 
  sec.501.2. Definitions.  The following words and terms, when used in this 
chapter, shall have the following meanings, unless the context clearly indicates 
otherwise. 
 
  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 March 17, 1994. 
 TRD-9438221 
  William Treacy 
 Executive Director 
 Texas State Board of Public Accountancy 
    Earliest possible date of adoption: May 6, 1994 
 For further information, please call: (512) 505-5566 
         
         
  22 TAC sec.501.4 
 
  The Texas State Board of Public Accountancy proposes an amendment to 
sec.501.4, concerning Practice of Public Accountancy The proposed amendment 
recognizes that some licenses may be valid for periods of time shorter or longer 
than a calendar year. 
 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 more flexibility in issuing licenses with varying 
expiration dates. 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 or advisable to carry in effect the purposes 
of the law; and sec.9 which authorizes the Board to issue licenses. 
 The rule implements Texas Civil Statutes, Article 41a-1,  s6 and sec.9. 
 
 
  sec.501.4. Practice of Public Accountancy. A certificate or registration 
holder may not practice public accountancy (as defined in sec.501. 2 of this 
title (relating to Definitions)) unless he or she holds a valid license issued 
by the board. A license is not valid for any date or for any period prior to the 
date it is issued by the board and it automatically expires and is no longer 
valid after the end of the  <nl>period<ol> for which it is issued. 
 
  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 March 17, 1994. 
 TRD-9438220 
  William Treacy 
 Executive Director 
 Texas State Board of Public Accountancy 
    Earliest possible date of adoption: May 6, 1994 
 For further information, please call: (512) 505-5566 
         
           
  Other Responsibilities and Practices 
 
  22 TAC sec.501.43 
 
  The Texas State Board of Public Accountancy proposes an amendment to 
sec.501.43, concerning Advertising. The proposed amendment replaces 
"solicitation" with "communication" since the board rule on solicitation has 
been repealed and communication is a more appropriate word. The amendment also 
adds the phrase "for at least 36 months" to subsection (f). 
 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 more accurately worded rule and a definite time 
limit for the retention of advertising records. 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 or advisable to carry in effect the purposes 
of the law. 
 The rule implements Texas Civil Statutes, Article 41a-1,  s6. 
 
 
  sec.501.43. Advertising. 
 
  (a)-(d) (No change.) 
   
  (e) Subsection (d) of this section does not apply to persons when: 
 
  (1) the <nl>communication<ol> is made to a person who is at that time a client 
of the certificate or registration holder; 
   
  (2) the <nl>communication<ol> is invited by the person to whom it was made; or 
   
  (3) the <nl>communication<ol> is made to a person seeking to secure the 
performance of professional services currently not being provided by another 
certificate or registration holder. 
     
  (f) In the case of radio and television broadcasting, the broadcast shall be 
recorded and the certificate or registration holder shall retain a recording of 
the actual transmission  <nl>for at least 36 months. 
   
  (g) (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 March 17, 1994. 
 TRD-9438218 
  William Treacy 
 Executive Director 
 Texas State Board of Public Accountancy 
    Earliest possible date of adoption: May 6, 1994 
 For further information, please call: (512) 505-5566 
         
               Chapter 505. The Board 
  
  22 TAC sec.505.10 
 
  The Texas State Board of Public Accountancy proposes an amendment to 
sec.505.10, concerning Board Committees. The proposed amendment removes the 
Committee on Relations with the National Association of State Boards of 
Accountancy (NASBA) from the Board's list of Committees and renumbers the 
remaining sections. 
 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 correctly reflecting the board's 
committees. 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 or advisable to carry in effect the purposes 
of the law. 
 The rule implements Texas Civil Statutes, Article 41a-1,  s6, 
 
 
  sec.505.10. Board Committees. 
 
  (a)-(d) (No change.) 
   
  (e) Standing committee structure and charge to committees. The standing 
committees shall consist of the following individuals and shall be charged with 
the following responsibilities. 
 
  (1)-(9) (No change.) 
   
  <nl>(10) The committee on board rule changes shall comprise at least one board 
member, one of whom shall serve as chairman, assisted by any number of nonboard 
members who shall serve in advisory capacity. The committee shall make 
recommendations to the board regarding board rules defined by the board chairman 
as requiring action. 
   
  <nl>(11) The regulatory compliance committee shall comprise at least two board 
members, one of whom shall serve as chairman, assisted by any number of nonboard 
members who shall serve in an advisory capacity. The committee shall make 
recommendations to the board regarding legislative oversight, including, but not 
limited to, budget, performance measures, proposed changes in legislation 
affecting the board, and computer utilization. 
   
  <nl>(12)<ol>The major case enforcement committee shall comprise at least two 
board members, one of whom shall serve as chairman. At least one committee 
member shall be a public member of the board. The committee shall make 
recommendations to the board regarding legal matters on litigation or potential 
litigation, and other major cases to which the board is a party. The committee 
shall have the authority to act on behalf of the board in instances where 
disclosure of facts to the full board could cause the board's objectivity to be 
jeopardized, subject to final approval by the board. The board shall have sole 
authority to determine whether cases shall be heard by the major case 
enforcement committee or other enforcement committee. 
   
  <nl>(13) The peer assistance oversight committee shall be comprised of at 
least two board members, one of whom shall serve as chairman. The committee 
shall oversee the peer assistance program administered by the Texas Society of 
Certified Public Accountants as required under the Texas Health and Safety Code, 
Chapter 467.001(B), and insure that the minimum criteria as set out by the Texas 
Commission on Alcohol and Drug Abuse are met. It shall make recommendations to 
the board and the TSCPA regarding modifications to the program and, if 
warranted, refer cases to other board committees for consideration of 
disciplinary or remedial action by the board. The committee shall report to the 
board on a quarterly basis, by case number, on the status of the program. 
     
  (f)-(h) (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 March 17, 1994. 
 TRD-9438225 
  William Treacy 
 Executive Director 
 Texas State Board of Public Accountancy 
    Earliest possible date of adoption: May 6, 1994 
 For further information, please call: (512) 505-5566 
         
             Chapter 511. Certification as CPAs 
  
  Certification 
 
  22 TAC sec.511.164 
 
  The Texas State Board of Public Accountancy proposes an amendment to 
sec.511.164, concerning Names on Certificates. The proposed amendment would 
allow, under certain conditions, licensees to have annual licenses issued in a 
name other than the name on the Certificate. 
 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 allowing married and divorced licensees to have 
the name they are currently using on their annual license. 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 or advisable to carry in effect the purposes 
of the law; and sec.9 which authorizes the Board to issue licenses. 
 The rule implements Texas Civil Statutes, Article 41a-1,  s6 and sec.9. 
 
 
  sec.511.164. Names on Certificates. 
 
  <nl>(a) The certificate of a certified public accountant shall be issued under 
the legal name of the candidate as it appears on the birth certificate or as 
changed by court order, marriage license, or divorce decree. 
   
  <nl>(b) The license of a certified public accountant may be issued in the name 
of the licensee as it appears on the birth certificate or as changed by court 
order, marriage license or divorce decree even if such name is different from 
the name on the certificate. 
   
  <nl>(c) At the candidate's option, words or abbreviations such as "Jr." or 
"III" do not have to appear on the certificate, <nl>license <ol> or the board's 
records even though such words or abbreviations are part of the candidate's 
legal name. 
 
  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 March 17, 1994. 
 TRD-9438226 
  William Treacy 
 Executive Director 
 Texas State Board of Public Accountancy 
    Earliest possible date of adoption: May 6, 1994 
 For further information, please call: (512) 505-5566 
         
             
  Certification 
 
  22 TAC sec.511.168 
 
  The Texas State Board of Public Accountancy proposes an amendment to 
sec.511.168, concerning Reinstatement of a Certificate. The proposed amendment 
would allow, under certain conditions, former licensees to have their 
Certificate reinstated without having to pay the annual license fees for all of 
the previous years. 
 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 an assessment of license fees which is fairer to 
former licensees. 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 or advisable to carry in effect the purposes 
of the law; and sec.9 which authorizes the Board to issue licenses and to charge 
fees. 
 The rule implements Texas Civil Statutes, Article 41a-1,  s6 and sec.9. 
 
 
  sec.511.168. Reinstatement of a Certificate. 
 
  (a)-(c) (No change.) 
   
  <nl>(d) An individual who has practiced and resided outside of Texas and who 
meets all the following requirements may be reinstated: 
 
  <nl>(1) The primary state of certification is a state other than Texas. 
   
  <nl>(2) No certificate held by the individual was revoked either voluntarily 
or involuntarily as a result of a disciplinary investigation or proceeding, 
except for non-payment of license fees while the individual was a non-resident 
of Texas. 
   
  <nl>(3) The individual has not practiced or resided in Texas for three 
consecutive years. 
   
  <nl>(4) The individual presents to the Board satisfactory documentation of the 
status of certificate and residency and practice requirements stated in this 
subsection. 
   
  <nl>(5) The individual pays the current year's fees <ol> and provides the 
Board satisfactory evidence of successful completion of 40 hours of continuing 
professional education in technical courses obtained within 12 months of the 
application for reinstatement. 
 
  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 March 17, 1994. 
 TRD-9438219 
  William Treacy 
 Executive Director 
 Texas State Board of Public Accountancy 
    Earliest possible date of adoption: May 6, 1994 
 For further information, please call: (512) 505-5566 
         
                 Chapter 513. Registration 
  
  Registration of Partnerships 
 
  22 TAC sec.513.24 
 
  The Texas State Board of Public Accountancy proposes an amendment to 
sec.513.24, concerning Restrictions. The proposed amendment allows professional 
corporations and partnerships to be partners in another partnership. 
 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 more flexibility in the creation of partnerships. 
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 or advisable to carry in effect the purposes 
of the law; and sec.20 which allows corporations to practice public accountancy. 
 The rule implements Texas Civil Statutes, Article 41a-1,  s6 and sec.20. 
 
 
  sec.513.24. Restrictions.  All partners in any partnership registered in this 
state must be certified public accountants and/or a professional corporation of 
certified public accountants. 
 
  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 March 17, 1994. 
 TRD-9438227 
  William Treacy 
 Executive Director 
 Texas State Board of Public Accountancy 
    Earliest possible date of adoption: May 6, 1994 
 For further information, please call: (512) 505-5566 
         
           
  Registration of Corporations 
 
  22 TAC sec.513.47 
 
  The Texas State Board of Public Accountancy proposes an amendment to 
sec.513.47, concerning Affidavit of Firm. The proposed amendment changes the 
reporting period from biennially to annually. 
 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 shorter reporting period and earlier 
enforcement and regulatory action by the Board. 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 or advisable to carry in effect the purposes 
of the law; and sec.21 and sec.21D which authorize the Board to regulate the 
practice of accountancy and to take appropriate action against licensees. 
 The rule implements Texas Civil Statutes, Article 41a-1,  ssec.6, 21 and 21D. 
 
 
  sec.513.47. Affidavit of Firm. 
 
  (a) The board may require at the time of a firm's initial registration with 
the board, and <nl>annually<ol> thereafter, an affidavit on a form provided by 
the board certifying whether the firm and/or its partners, officers, directors, 
and/or shareholders have been defendant(s) in legal proceedings and/or 
administrative proceedings relating to professional accounting services 
performed within the State of Texas during the three-year period immediately 
preceding the date of the affidavit and the disposition of each lawsuit. 
   
  (b)-(d) (No change.) 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 17, 1994. 
 TRD-9438228 
  William Treacy 
 Executive Director 
 Texas State Board of Public Accountancy 
    Earliest possible date of adoption: May 6, 1994 
 For further information, please call: (512) 505-5566 
         
               Chapter 515. Licenses. 
  
  22 TAC sec.515.1 
 
  The Texas State Board of Public Accountancy proposes an amendment to 
sec.515.1, concerning License. The proposed amendment changes the licensing 
period from biennial to annual. 
 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 shorter licensing and reporting period. 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 or advisable to carry in effect the purposes 
of the law; and sec.9, which authorizes the Board to issue licenses. 
 The rule implements Texas Civil Statutes, Article 41a-1,  s6 and sec.9. 
 
 
  sec.515.1. [Biennial] License. 
 
  <nl>(a) Individuals certified or registered by this board must obtain a 
license for each 12-month interval. 
   
  <nl>(b) Firms registered with this board must obtain an annual license for 
each practice unit associated with the firm.<ol> [With the exception of an 
individual who is practicing public accountancy in Texas on a temporary basis 
incident to his regular practice outside the state, all individuals certified by 
this board, and all individuals and practice units registered with the board 
must obtain a license to practice public accountancy and must renew that license 
biennially on or before December 31 of each calendar 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 March 17, 1994. 
 TRD-9438229 
  William Treacy 
 Executive Director 
 Texas State Board of Public Accountancy 
    Earliest possible date of adoption: May 6, 1994 
 For further information, please call: (512) 505-5566 
         
           
  22 TAC sec.515.2 
 
  The Texas State Board of Public Accountancy proposes an amendment to 
sec.515.2, concerning Initial License. The proposed amendment changes the 
licensing period from biennially to annually and re-writes the rule for clarity 
and easier understanding. 
 William Treacy, 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. 
 Mr. Treacy 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 rule that is easier to understand. 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 or advisable to carry in effect the purposes 
of the law; and sec.9, which authorizes the Board to issue licenses. 
 The rule implements Texas Civil Statutes, Article 41a-1,  s6 and sec.9. 
 
 
  sec.515.2. Initial License. 
 
  <nl>(a) An initial license is the first license issued to an individual who 
has been certified or registered under the Public Accountancy Act. The board 
will prorate the initial license fee for an individual who is licensed for less 
than a full year. 
   
  <nl>(b) The board will not prorate the initial license fee for a firm's 
practice unit whose license is less than one year. The firm's practice unit 
license shall not be issued until such time as the sole proprietorship, all 
partners, officers, directors, members, or shareholders of the firm who reside 
in Texas have obtained a license.<ol> [Each individual or practice unit which is 
certified or registered after the effective date of the Public Accountancy Act 
of 1991 shall, upon approval of his application for certification or 
registration, pay the biennial license fee for the year in which certification 
or registration is granted. The initial license of a firm's practice unit shall 
not be issued until such time as the sole proprietorship, all partners, 
officers, directors, or shareholders of the firm who reside in Texas are 
certified or registered and have obtained a biennial license. The initial 
license will expire on the 31st day of December of the applicable year or on 
such date or dates as set by the board.] 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 17, 1994. 
 TRD-9438230 
  William Treacy 
 Executive Director 
 Texas State Board of Public Accountancy 
    Earliest possible date of adoption: May 6, 1994 
 For further information, please call: (512) 505-5566 
         
           
  22 TAC sec.515.3 
 
  The Texas State Board of Public Accountancy proposes an amendment to 
sec.515.3, concerning License Renewal for Individuals and Practice Units. The 
proposed amendment changes the licensing period for licensees from biennially to 
annually and changes the expiration date to the licensee's birth month. 
 William Treacy, 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. 
 Mr. Treacy 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 leveling of the work effort required to renew and issue 
licenses and registrations. 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 or advisable to carry in effect the purposes 
of the law; and sec.9, which authorizes the Board to issue licenses. 
 The rule implements Texas Civil Statutes, Article 41a-1,  s6 and sec.9. 
 
 
  sec.515.3. License Renewal for Individuals <nl>and Practice Units. 
 
  <nl>(a) Licenses for individuals will have staggered expiration dates based on 
the last day of the individuals' birth months. The license will be issued for a 
12-month period. 
   
  <nl>(b) At least 30 days before the expiration of an individual's license, the 
board shall send written notice of the impending license expiration to the 
individual at the last known address according to board records. 
   
  <nl>(c) The expiration date of a practice unit's license is December 31. The 
license will be issued for a 12-month period. 
   
  <nl>(d) At least 30 days before the expiration of a practice unit's license, 
the board shall send written notice of the impending license expiration to the 
main office of the firm at the last known address according to the records of 
the board. 
   
  <nl>(e) A practice unit's license shall not be renewed unless the sole 
proprietor, each partner, officer, director, or shareholder of the firm who is 
listed as a member of the firm and who is certified or registered under the Act 
has a current individual license. 
   
  [(a) The board shall provide that half of the licenses subject to this 
subsection expire in each even-numbered year and that the other half expire in 
each odd-numbered year. The board shall prorate the license fee for an 
individual whose license term is less than two years. The board will not prorate 
the license fee for a firm's practice unit whose license term is less than two 
years. 
   
  [(b) At least 30 days before the expiration of a person's license, the board 
shall send written notice of the impending license expiration to the person at 
the licensee's last known address according to the records of the board. 
   
  [(c) A person may renew an unexpired license by paying the required renewal to 
the board before the expiration date of the license.] 
 
  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 March 17, 1994. 
 TRD-9438231 
  William Treacy 
 Executive Director 
 Texas State Board of Public Accountancy 
    Earliest possible date of adoption: May 6, 1994 
 For further information, please call: (512) 505-5566 
         
           
  22 TAC sec.515.4 
 
  The Texas State Board of Public Accountancy proposes an amendment to 
sec.515.4, concerning License Cancellation. The proposed amendment significantly 
shortens and clarifies the rule. 
 William Treacy, 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. 
 Mr. Treacy 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 rule that is shorter and easier to understand. 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 or advisable to carry in effect the purposes 
of the law; sec.9, which authorizes the Board to issue licenses; and sec.21 and 
sec.21D. which authorize the Board to take action against licenses. 
 The rule implements Texas Civil Statutes, Article 41a-1,  ssec.6, 9, 21, and 
21D. 
 
 
  sec.515.4. [Renewal of] License <nl>Cancellation [of Firm]. <nl> The 
individual or practice unit shall return the renewal fee and appropriate 
documents to the board on or before the license expiration date. Failure to do 
so will automatically cancel the license.<ol> [At the same time that renewal 
notices are mailed to individuals certified or registered under the Public 
Accountancy Act of 1991 (the Act), the executive director shall mail to each 
firm registered under the Act a biennial renewal form for each practice unit 
associated with the firm, stating the appropriate renewal fee. The firms shall 
return the renewal fee and the appropriate documents to the executive director 
on or before December 31 of that year, and failure to do so shall automatically 
cancel the license of the firm. The biennial license of a firm shall not be 
renewed until such time as all partners, officers, directors, or shareholders of 
the firm who reside in Texas and are certified or registered under this Act 
shall have renewed their individual licenses.] 
 
  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 March 17, 1994. 
 TRD-9438232 
  William Treacy 
 Executive Director 
 Texas State Board of Public Accountancy 
    Earliest possible date of adoption: May 6, 1994 
 For further information, please call: (512) 505-5566 
         
         
  22 TAC sec.515.5 
 
  The Texas State Board of Public Accountancy proposes an amendment to 
sec.515.5, concerning Reinstatement. The proposed amendment re-writes the rule 
for clarity and changes the licensing period to annually. 
 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 changed licensing 
period. 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 or advisable to carry in effect the purposes 
of the law, and Section 9 which authorizes the Board to issue licenses. 
 The rule implements Texas Civil Statutes, Article 41a-1,  s6 and sec.9. 
 
 
  sec.515.5. Reinstatement. 
 
  <nl>(a) If the payment of the license fee is 12 months late but not 24 months 
late, a licensee whose license has been canceled for failure to pay the renewal 
fee may secure reinstatement of the license upon payment of the delinquent 
license fee, together with a penalty as set forth in the Public Accountancy Act 
of 1991, sec.9(c). 
   
  <nl>(b) If the payment of the license fee is at least 24 months late, a 
licensee whose license has been canceled may secure reinstatement of the license 
only upon application and examination on the Rules of Professional Conduct which 
is satisfactory to the board together with the payment of delinquent fees and a 
penalty to be assessed by the board. An application for reinstatement shall be 
made under oath and shall state that the licensee has never been charged or 
convicted by any court or other body of any crime, misdemeanor, or discreditable 
act of which the board has not been notified. The application shall also include 
a statement explaining why the licensee failed to timely renew the license. 
   
  <nl>(c) Prior to reinstatement of the certificate all previous and current 
fees and penalties must be paid in full and the applicant must show proof of 
completion of all required continuing professional education courses. 
   
  [(a) A licensee whose biennial license has been canceled for failure to pay 
the biennial renewal fee on or before December 31 may secure reinstatement of 
the license at any time within the next calendar year upon payment of the 
delinquent license fee, together with a penalty as set forth in the Public 
Accountancy Act of 1991, sec.9(c).] 
   
  [(b) After expiration of the next calendar year, a licensee whose license has 
been canceled for failure to timely pay the biennial renewal fee may secure 
reinstatement of a license only upon application and examination satisfactory to 
the board together with the payment of delinquent fees and a penalty to be 
assessed by the board. An application for reinstatement shall be made under oath 
and shall state that the licensee has never been charged or convicted by any 
court or other body of any crime, misdemeanor, or discreditable act of which the 
board has not been notified. The application shall also include a statement 
explaining why the licensee failed to timely obtain a biennial license.] 
 
  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 March 17, 1994. 
 TRD-9438233 
  William Treacy 
 Executive Director 
 Texas State Board of Public Accountancy 
    Earliest possible date of adoption: May 6, 1994 
 For further information, please call: (512) 505-5566 
         
           
  22 TAC sec.515.8 
 
  The Texas State Board of Public Accountancy proposes an amendment to 
sec.515.8, concerning Retirement Status or Permanent Disability. The proposed 
amendment changes the licensing fee amount to correspond with a changed 
licensing period and was re-written for clarity. 
 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 an accurate licensing fee and a rule that is 
easier to read. 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 or advisable to carry in effect the purposes 
of the law, and sec.9 which authorizes the Board to adopt rules pertaining to 
reduced license fees for retired and disabled licensees. 
 The rule implements Texas Civil Statutes, Article 41a-1,  s6 and sec.9. 
 
 
  sec.515.8. Retirement Status or Permanent Disability. 
 
  <nl>(a) Retired Status. 
 
  <nl>(1) An individual who holds a current license issued by the board who is 
60 years old and has timely filed a request on a form prescribed by the board 
which indicates the licensee is no longer employed may be granted a retired 
status at the time of license renewal. 
   
  <nl>(2) A fee of $10 shall be payable to the board in lieu of the regular 
license fee. 
   
  <nl>(3) A licensee who has been granted retired status and who becomes 
employed must: 
 
  <nl>(A) pay the license fee established by the board; 
   
  <nl>(B) complete the form prescribed by the board for renewal of a license; 
   
  <nl>(C) meet the continuing professional education requirements; and 
   
  <nl>(D) surrender the retired status. 
     
  <nl>(4) All board rules and all provisions of the Public Accountancy Act apply 
to a licensee in either an active or retired status unless specifically exempt 
by board rule or the Act. 
     
  <nl>(b) Permanent disability status. 
 
  <nl>(1) Permanent disability status may be granted to a licensee with a 
notarized affidavit from the licensee's physician which states that the licensee 
is unable to work and clearly details the disability. Such status may only be 
granted at the time of license renewal. 
   
  <nl>(2) A fee of $10 shall be payable to the board in lieu of the regular 
license fee. 
   
  <nl>(3) A licensee who has been granted permanent disability status and who 
becomes employed must: 
 
  <nl>(A) pay the license fee established by the board; 
   
  <nl>(B) complete the form prescribed by the board for renewal of a license; 
   
  <nl>(C) meet the continuing education requirements; and 
   
  <nl>(D) surrender permanent disability status. 
     
  <nl>(4) All board rules and all provisions of the Public Accountancy Act apply 
to a licensee in permanent disability status unless specifically exempted by 
board rule or the Act. 
     
  [(a) Retired status. 
 
  [(1) An individual who has reached his/her 60th birthday who holds a current 
license issued by the board may be granted a retired status. A biennial fee of 
$20 shall be payable to the board in lieu of the regular license fee. 
   
  [(2) The licensee who is requesting retired status must timely file a request 
on a form prescribed by the board which indicates that the individual is no 
longer employed. 
   
  [(3) Retired status becomes effective on January 1 only. 
   
  [(4) An individual who has been granted retired status and who becomes 
employed must adhere to the following: 
 
  [(A) pay the biennial license fee established by the board; 
   
  [(B) complete the form prescribed by the board for renewal of biennial 
license; 
   
  [(C) meet the continuing education requirements; and 
   
  [(D) surrender the retired status. 
     
  [(5) All board rules and all provisions of the Public Accountancy Act apply to 
a licensee in either an active or retired status unless specifically exempt by 
board rule or the Act. 
     
  [(b) Permanent disability status. 
 
  [(1) An individual who holds a current license issued by the board, who has a 
permanent disability, may be granted permanent disability status. A biennial fee 
of $20 shall be payable to the board in lieu of the regular license fee. 
   
  [(2) The licensee who is requesting permanent disability status must file a 
request with an affidavit which provides documentation from a physician that 
clearly details the disability and that the individual is no longer able to 
work. The affidavit must be notarized. 
   
  [(3) Permanent disability status becomes effective on January 1 only. 
   
  [(4) An individual who has been granted a disability status who becomes 
employed must adhere to the following: 
 
  [(A) pay the biennial license fee established by the board; 
   
  [(B) complete the form prescribed by the board for renewal of a biennial 
license; 
   
  [(C) meet the continuing education requirements; and 
   
  [(D) surrender the permanent disability status. 
     
  [(5) All board rules and all provisions of the Public Accountancy Act of 1991 
(the Act) apply to a license in permanent disability status unless specifically 
exempt by board rule or the Act.] 
 
  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 March 17, 1994. 
 TRD-9438234 
  William Treacy 
 Executive Director 
 Texas State Board of Public Accountancy 
    Earliest possible date of adoption: May 6, 1994 
 For further information, please call: (512) 505-5566 
         
               Chapter 521. License Fees 
  
  22 TAC sec.521.1 
 State Board of Public Accountancy proposes an amendment to sec.521. 1, 
concerning License Fees. The proposed amendment changes the license fee to 
correspond with the changed licensing period. 
  point=9.03p set=9.03p <ol>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. 
 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 an accurate licensing fee. There is no effect on 
small businesses. There is no anticipated economic cost to persons required to 
comply with the section as proposed. 
 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 or advisable to carry in effect the purposes 
of the law; sec.9 which authorizes the Board to charge fees; sec.9A which 
requires the Board to collect a professional occupation fee; and sec.32 which 
requires the Board to collect fees for a scholarship fund. 
 implements Texas Civil Statutes, Article 41a-1, sec.sec.6, 9, 9A, and 32. 
 
 
  sec.521.1. License Fees. 
 
  (a) The [biennial] fee for a license issued to an individual not in retired or 
disabled status shall be <nl>$30 for the license fee, $10 for the Scholarship 
Fund and $200 for the professional fee<ol> [$120]; however, the initial license 
fee shall be prorated [at $5 per month] for those months during which the 
license is valid. 
   
  (b) (No change.) 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 17, 1994. 
 TRD-9438235 
  William Treacy 
 Executive Director 
 Texas State Board of Public Accountancy 
    Earliest possible date of adoption: May 6, 1994 
 For further information, please call: (512) 505-5566 
         
           Chapter 523. Continuing Professional Education 
  
  Continuing Professional Education Programs 
 
  22 TAC sec.523.2 
 
  The Texas State Board of Public Accountancy proposes an amendment to 
sec.523.2, concerning Standards for CPE Program Development. The proposed 
amendment adds foreign languages as acceptable continuing professional education 
subjects. 
 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 some licensees will be better able to serve their 
clients. 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 or advisable to carry in effect the purposes 
of the law. 
 The rule implements Texas Civil Statutes, Article 41a-1,  s6. 
 
 
  sec.523.2. Standards for CPE Program Development. 
 
  (a) (No change.) 
   
  (b) Courses which are considered by the board as increasing the licensee's 
professional competence include: 
 
  (1) (No change.) 
   
  (2) non-technical courses such as communications, <nl> advanced courses in 
foreign languages relating to accounting,<ol> ethics, behavioral science, and 
practice management which are of benefit to a licensee or a licensee's 
employer(s). Refer to sec.523.30 of this title (relating to Limitation for Non-
technical Courses). 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 17, 1994. 
 TRD-9438236 
  William Treacy 
 Executive Director 
 Texas State Board of Public Accountancy 
    Earliest possible date of adoption: May 6, 1994 
 For further information, please call: (512) 505-5566 
         
               
  Mandatory Continuing Professional Education (CPE) Program 
 
  22 TAC sec.523.62 
 
  The Texas State Board of Public Accountancy proposes an amendment to 
sec.523.62, concerning Mandatory CPE Reporting. The proposed amendment re-writes 
and clarifies subsection (b) addressing reporting of CPE and warns licensees 
that blanks on the reporting form will be read as zeros. 
 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 that is easier to read and more accurate 
reporting of continuing professional education. 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 or advisable to carry in effect the purposes 
of the law; and sec.15A, which authorizes the Board to issue rules on reporting 
of continuing professional education. 
 The rule implements Texas Civil Statutes, Article 41a-1,  s6 and sec.15A. 
 
 
  sec.523.62. Mandatory CPE Reporting. 
 
  (a) To receive a license, a licensee shall report CPE credit hours accrued 
during the applicable reporting period. 
   
  (b) <nl>A licensee shall report CPE credit hours accrued during the reporting 
period on the license renewal form. Appropriate instructions shall accompany the 
license renewal form.<ol> [A licensee shall report CPE credit hours accrued on 
the license renewal form. The license renewal form shall contain a space for 
reporting the total number of CPE credit hours accrued during the reporting 
period, and a space for entering information relating to the CPE credit hours 
claimed. Appropriate instructions shall accompany the notices.] 
   
  (c) The board may not grant exemptions from the requirement to report CPE 
credit hours accrued. A licensee must report CPE credit hours on the license 
renewal form, even if the number reported is zero. <nl>A blank on the reporting 
form will be interpreted as a zero. 
 
  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 March 17, 1994. 
 TRD-9438237 
  William Treacy 
 Executive Director 
 Texas State Board of Public Accountancy 
    Earliest possible date of adoption: May 6, 1994 
 For further information, please call: (512) 505-5566 
         
                   
  TITLE 25. HEALTH SERVICES 
 Part I. Texas Department of Health 
  Chapter 29. Purchased Health Services 
  
  Subchapter CC. Lone Star Select Contracting Program 
 
  25 TAC sec.29.2801 
 
  On behalf of the State Medicaid Director, the Texas Department of Health 
(department) submits proposed new sec.29.2801, concerning the Lone Star Select 
Contracting Program process for hospital inpatient services. 
 The new section is proposed to implement Senate Bill 79, 73rd Texas 
Legislature, 1993, which mandates medical assistance selective contracting for 
non-emergency inpatient hospital services. 
 Generally, the proposed new section will enable the department to contract 
selectively with hospitals for non-emergency inpatient services for Medicaid 
recipients, thereby improving the department's ability to act as a prudent 
purchaser of services and manage the program in a more effective and efficient 
manner. Specifically, the section includes its purpose, definition, and the 
department's requirements associated with the general design, proposal process 
for selective provider agreements, evaluation criteria and methodology, and the 
execution of provider agreements used in the selective contracting process. 
 Gary Bego, budget director, Health Care Financing, has determined that for each 
year of the first two years the section, as proposed, is in effect, there will 
be fiscal implications as a result of enforcing and administering the section. 
The effect on state government will be an estimated reduction in general revenue 
costs of between $2 million-$5 million for fiscal year 1994 and between $30 
million-$35 million each year for fiscal years 1995, 1996, 1997 and 1998. There 
could possibly be costs to local governments with hospital districts. As the 
department will be negotiating with individual hospitals; the impact, if any, to 
local governments is undeterminable at this time. 
 Steve Svadlenak, bureau chief, Purchased Health Services, and Mr. Bego also 
have determined that for each year of the two-year period the section, as 
proposed, is in effect, the public benefit anticipated as a result of enforcing 
the proposed section will be the increased ability of the department to assure 
adequate access to appropriate, high quality, cost effective services for all 
medical assistance beneficiaries; containment of overall expenditures for 
hospital inpatient services reimbursed by the Medical Assistance Program; and 
the facilitation of an orderly transition to a Medical Assistance Program design 
philosophy using an approach emphasizing primary care to minimize unnecessary 
use of hospital care. There is no anticipated impact on small businesses. There 
is no expected economic cost to persons who are required to comply with the 
proposed section and no anticipated impact on local employment. 
 Written comments on the proposed section may be submitted to Larry Fisher, 
Program Specialist, Texas Department of Health, 1100 West 49th Street, Austin, 
Texas 78756-3168, (512) 794-6894. Mr. Fisher will accept comments for 30 days 
after publication of the proposed section in the Texas Register . In addition, a 
public hearing will be held in the Lecture Hall of the Texas Department of 
Health, 1100 West 49th Street, Austin, on April 18, 1994, beginning at 2:00 p.m. 
 The new section is proposed under the Human Resources Code, sec.32.027, which 
provides authority for the adoption of rules on selective contracting; the Human 
Resources Code, sec.32.021, and Texas Civil Statutes, Article 4413 (502), 
sec.16, which provide the Health and Human Services Commission with the 
authority to adopt rules to administer the state's medical assistance program 
and are submitted by the Texas Department of Health under its agreement with the 
Health and Human Services Commission to operate purchased health services 
programs and as authorized under Chapter 15, sec.1.07, Acts of the 72nd 
Legislature, First Called Session (1991). The proposed section will affect the 
Human Resources Code, Chapter 32, and Texas Civil Statutes, Article 4413 (502). 
 
 
  sec.29.2801. Lone Star Select Contracting Process for Inpatient Hospital 
Services. 
 
  (a) Introduction. This section implements the provisions of Senate Bill 79, 
73rd Texas Legislature, Regular Session, 1993, mandating selective contracting 
for non-emergency inpatient hospital services. 
   
  (b) Definitions. The following words and terms, when used in this section, 
shall have the following meanings, unless the context clearly indicates 
otherwise. 
 
  (1) Market area-A geographic subdivision of the State of Texas defined as a 
group of geographically contiguous counties in which the Texas Department of 
Health (department) determines that hospitals will be invited to apply for 
selective contracting agreements. In general, each Metropolitan Statistical Area 
(MSA) in the State will be considered for designation as a market area. Where 
warranted by historical patient migration patterns, the department may designate 
certain non-MSA counties that are geographically contiguous to an MSA to be 
included with MSA counties within a market area. 
   
  (2) Effective service area-For each hospital in a market area, the geographic 
area, as defined on a zip code basis, in which the hospital has historically 
provided inpatient hospital services to Medicaid patients. For purposes of 
subsection (f) of this section, the effective service area will be determined 
based on historical medicaid inpatient claims data. 
   
  (3) Executive Oversight Committee-The executive committee established by the 
department to direct the selective contracting initiative and to approve the 
provider agreements. 
   
  (4) Hospital capacity to provide specialized service offerings-The presence or 
absence of specific hospital services, including but not limited to, trauma 
centers, burn units, neonatal intensive care unit services, and adult 
psychiatric services, that are required to be available in the market to ensure 
adequate access to quality care. 
   
  (5) Potential network-Any combination of applicant hospitals (whether the 
result of a joint bid or determined by the department) that offer a: 
 
  (A) combined effective service area that provides geographic coverage of the 
market area to the same extent that coverage is provided under current practice; 
   
  (B) combined service capacity equal to at least 115% of the most recently 
available historic service volume experience for the market area; and 
   
  (C) combination of specialized services available within the market area that 
is at least as broad as the range of specialized services presently available to 
Medicaid beneficiaries in that market area. 
     
  (6) Selective contracting-A method of contracting, granted through waivers of 
certain provisions of the Social Security Act, that allows the department to 
contract selectively with hospitals for non-emergency inpatient services, 
thereby improving its ability to act as a prudent purchaser of services and to 
manage the Medical Assistance Program in a more effective and efficient manner. 
   
  (7) Selective contracting agreement-An agreement which includes an amendment 
to a hospital's existing provider agreement with the department and involves 
selective contracting. 
   
  (8) Disproportionate share hospital-A hospital participating in the Medicaid 
program that, according to state Medicaid criteria, meets the conditions of 
participation and serves a disproportionate share of indigent patients. 
Additional requirements for disproportionate share hospitals are specified in 
sec.29.609 of this title (relating to Additional Reimbursement to 
Disproportionate Share Hospitals) and sec.29.610 of this title (relating to 
Disproportionate Share Hospital Reimbursement Methodology for State-Owned 
Teaching Hospitals). 
   
  (9) Health care provider-Any hospital that is eligible to provide inpatient 
hospital services to Medicaid recipients. 
   
  (10) Optional volume management activities-Those activities that hospitals may 
propose to furnish to Medicaid beneficiaries in a market area to expand access 
to primary care services and ensure more appropriate use of hospital facilities. 
Such activities may include, but not be limited to, furnishing ambulatory 
primary care clinic services to Medicaid beneficiaries, and furnishing nurse hot 
lines which beneficiaries may call to receive professional advice about the most 
appropriate means to obtain medical care. 
     
  (c) General design. The department shall select that subset of market areas 
that appears to indicate the most effective competition for selective provider 
agreements to serve Medicaid patients. The market areas shall be divided into 
two groups of solicitations that will avoid an overlap of contract evaluation 
and negotiation of solicitations. 
 
  (1) The department shall implement selective contracting by executing 
amendments to each hospital's existing provider agreement with the department. 
Hospitals that were not parties to provider agreements before implementation of 
the department's selective contracting are eligible to apply; however, they must 
enter into a provider agreement that ensures they are subject to all terms and 
conditions of the Medical Assistance Program. The amendments to the provider 
agreements, and the process by which the department solicited, evaluated, 
negotiated, and executed the amended agreements with hospitals under selective 
contracting are not subject to the laws and regulations governing acquisition of 
goods and services by state agencies. 
   
  (2) Hospitals shall be required to apply for selective provider agreements on 
an individual basis. Proposals by combinations of hospitals under common 
ownership in a market area shall be considered as individual proposals if the 
hospitals elect to apply on that basis. Proposals by combinations of hospitals 
in a market area that are not under common ownership will also be considered, 
provided that each hospital that is a party to a joint application in a market 
area also submits an independent application for a selective contracting 
agreement in that market area; and each such hospital provides written 
assurances that the terms of its individual proposal were arrived at 
independently without consultation with any other hospital or combination of 
hospitals, and have not been communicated to any competitor or group of 
competitors. The department does not intend any action by the State of Texas in 
the contracting process to require or sanction any form of communication or 
joint action by competitors in the market for inpatient hospital services (with 
respect to either individual or joint applications) that fails to comply with 
the provisions of this section. 
   
  (3) The department shall send solicitation packages, inviting proposals for 
selective provider agreements, to each health care provider serving residents of 
the counties selected for participation. Hospitals will be required at all times 
to be eligible to participate in the Medicare and Medicaid programs. Hospitals 
that are not sent solicitation packages for beneficiaries of a particular market 
will be able to request a package after demonstrating their intent to offer 
services to beneficiaries in those markets. 
     
  (d) Proposals for selective provider agreements. Hospitals seeking selective 
provider agreements shall be required to submit the following information in 
their proposals: 
 
  (1) a schedule of proposed payment rates to be applied to all covered hospital 
inpatient services during the term of the agreement; 
   
  (2) a proposed level of volume of services to Medicaid beneficiaries that the 
hospital would agree to serve during the contract period (this proposed level 
shall serve only as an estimate of services to assist the department in 
evaluating the availability of services within the relevant market area; it 
shall not serve as a limit on the amount of reimbursable services to be supplied 
by a contracting hospital); 
   
  (3) data to assist the department in evaluating the effective service area and 
specialized service offerings of the hospital; 
   
  (4)  assurances and certifications required to ensure hospital compliance with 
the requirements of Federal and Texas law and regulations, and the requirements 
of the department's selective contracting process; 
   
  (5) a narrative description of the proposed plans (if any) of the hospital to 
furnish optional volume management programs for Medicaid beneficiaries; and 
   
  (6) evidence that the application of the hospital constitutes a binding 
quotation authorized by the corporate governance of the hospital. 
     
  (e) Evaluation of proposals for selective provider agreements. The department 
shall evaluate hospital proposals according to the following criteria. 
 
  (1) Hospital proposals shall be due to the department within one month of the 
release of proposal packages. All hospital materials submitted to the department 
during the proposal process, and materials developed by the department or its 
contractors during the course of evaluation and negotiation, shall be 
confidential until all agreements are executed for all market areas in the 
state. 
   
  (2) The department shall evaluate hospital proposals on a market-by-market 
basis and determine a negotiation strategy to pursue in each market area 
following its evaluation of all market areas. Based on the application of pre-
specified evaluation criteria for each market area, the department shall prepare 
a recommended strategy for contracting in each market area. Each market area 
strategy shall be subject to approval by the Executive Oversight Committee 
established by the department. 
   
  (3) The department shall retain the option to make awards without negotiation. 
In some circumstances, the department may accept the proposals offered by every 
hospital in the market area. In most cases, however, the department expects to 
enter into negotiations with those hospitals whose proposals, taken together, 
appear to represent the best combination of providers consistent with the 
overall objectives of the Medical Assistance Program. After negotiation, the 
department reserves the right not to award an agreement in a specific market 
area. In most cases, however, the department shall proceed to finalize and 
execute agreements with some subset of the hospital providers in each market 
area. In that event, coverage restrictions associated with the use of non-
contracted hospitals by Medicaid beneficiaries shall apply. 
     
  (f) Evaluation criteria and methodology. The department's evaluation of 
proposals for selective provider agreements for each market area shall be 
conducted in two phases. Phase One shall include determining minimally 
acceptable network combinations and Phase Two shall include cost evaluation. A 
description of each phase follows. 
 
  (1) In Phase One, the department shall enter the information included in 
hospital proposals in each market area into a personal computer based (PC-based) 
microsimulation model designed to aid in the evaluation of the department's 
contracting options for each market. Data from hospital proposals shall be 
combined with data from the department's eligibility systems and claims 
processing records to construct the data base required for this phase of the 
evaluation. Each hospital's record in the data base shall contain information 
necessary to determine each hospital's: 
 
  (A) effective service area for Medicaid beneficiaries in that market area; and 
   
  (B) capacity to provide specialized hospital services required by Medicaid 
beneficiaries in the market area. 
     
  (2) The PC-based microsimulation model shall be used to test all possible 
combinations of hospitals applying for selective provider agreements to 
determine potential networks that shall meet the department's requirements for 
access to services for Medicaid patients. Where hospitals have submitted a joint 
proposal for selective provider agreements, the department shall evaluate the 
proposed provider network and the proposed network in all possible combinations 
with remaining hospitals that submitted proposals. 
   
  (3) In Phase Two, each potential network shall be eligible for further 
consideration. If the Phase One evaluation fails to identify a potential network 
of applicant hospitals that meet the department's specified criteria, the 
department reserves the right to enter into direct negotiations with any 
hospital serving the market area. The purpose of these negotiations shall be to 
develop a minimally acceptable potential network, and allow the department to 
initiate negotiations with a hospital that failed to submit a proposal during 
the proposal period. 
   
  (4) In Phase Two, each potential network identified in a market area in Phase 
One shall be evaluated to determine the estimated reduction in program costs 
that would result from entering into selective provider agreements with all of 
the hospitals in that potential network, while excluding all other hospitals 
from serving non-emergency cases. The department shall use the PC-based 
microsimulation model to produce an estimate of the total change in Medicaid 
program costs that would result by entering into agreements with those hospitals 
during the base contract period. The estimate by the department shall consider: 
 
  (A)  changes in unit prices to be paid to providers for inpatient services; 
   
  (B) changes in the distribution of service volumes (and case mix) across 
hospitals that would result from the reallocation of service volume from non-
selected to selected providers; and 
   
  (C) savings in Medicaid program costs likely to result from the changes in 
service volumes induced by optional volume management activities proposed by 
hospitals, including both savings in aggregate hospital service use and 
offsetting increases in non-hospital service costs. 
     
  (5) The result of the evaluation by the department will be a range of values 
for each potential network. The ranges shall be constructed using best case, 
worst case, and expected value assumptions about the distribution of service 
volumes across hospitals in the network. 
   
  (6) Following the evaluation, the department shall prepare a recommendation to 
the Executive Oversight Committee that includes the outcome of both phases of 
the evaluation for each market area, as well as a proposed strategy for the 
department to meet the best interests of the Medical Assistance Program. 
Department options shall include: 
 
  (A) making an award without negotiations-including an award at the bid price 
schedules to all hospitals in the market; 
   
  (B) entering into negotiations with hospitals in a single potential network to 
improve proposed pricing, if possible, and to finalize an agreement about key 
program features; or 
   
  (C)  entering into negotiations with one or more hospitals to influence the 
department's choice among multiple potential networks by lowering the pricing 
terms offered by individual hospitals. These negotiations may result in 
identifying a single potential network that would differ in its hospital 
composition from potential networks initially identified in Phase One. 
       
  (g) Execution of selective provider agreements. The department shall execute 
selective provider agreements at the conclusion of negotiations by: 
 
  (1)  requesting applicants to submit a binding revised application including 
the terms and conditions agreed to during negotiations with the department. The 
best and final offer of each hospital shall be forwarded to the Executive 
Oversight Committee for approval. The provider agreements shall be executed 
following the approval of the committee; and 
   
  (2)  structuring the agreements as one-year amendments to the provider 
agreement of each hospital, with an option to the department of extending the 
amendments for up to two option years. The effective date of the reimbursement 
rates under the amendments may, by mutual agreement, be made retroactive to a 
date before the date of execution. At the conclusion of the first year, the 
department may adjust its exercise of options on a market-by-market basis so as 
to place the system on a three-year rolling system of renegotiations. If the 
performance of any hospital under the contract is considered unsatisfactory, 
however, the department may elect not to exercise any subsequent options, even 
if it exercised options with all other selected hospitals in the market. 
 
  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 March 30, 1994. 
 TRD-9438359 
  Susan K. Steeg 
 General Counsel 
 Texas Department of Health 
    Earliest possible date of adoption: May 6, 1994 
 For further information, please call: (512) 794-6894 
         
                 Chapter 130. Code Enforcement Registry 
  
  The Texas Department of Health (department) proposes amendments to 
sec.sec.130.2, 130.3, 130.5-130.7, 130. 9, 130.10, 130.12; repeal of existing 
sec.130.8; and new sec.sec.130.8 and 130.18, concerning the registration of code 
enforcement officers. 
 The amendments alter the definitions; define committee duties; delete 
requirements under the expired grandfather clause; address renewal of a 
registration as a code enforcement officer in training; and add minor changes 
which clarify meaning without substantial change, improve grammar and style, and 
clarify inconsistencies in the rules. The repeal of existing sec.130.8 removes 
the examination procedures. The proposal of new sec.130.8 replaces the 
examination procedures with updated information concerning the examination 
process. The new sec.130.18 defines improper advertising as it is related to 
code enforcement officers by using the language from Texas Civil Statutes, 
Article 4512p, sec.4. 
 Becky Berryhill, program director, has determined that for the first five year 
period the proposed sections will be in effect there will be no fiscal 
implications for state and local governments as a result of enforcing or 
administering the sections. 
 Ms. Berryhill also has determined that for each year of the first five years 
the sections as proposed are in effect the public benefit anticipated as a 
result of enforcing the sections will be to assure the availability of qualified 
code enforcement officers within city, county, and state agency offices. There 
is no anticipated cost to small business. There is no anticipated economic cost 
to persons who are required to comply with the proposed sections. There will be 
no impact on local employment. 
 Comments on the proposal may be submitted to Becky Berryhill, Program Director, 
Professional Licensing and Certification Division, 1100 West 49th Street, 
Austin, Texas, (512) 834-6659. Comments will be accepted for 30 days after the 
date of publication in the Texas Register. 
   
  25 TAC sec.sec.130.2, 130.3, 130.5-130.10, 130.12, 130.18 
 
  The amendments and new section are proposed under Texas Civil Statutes, 
Article 4447bb, which provide the Texas Department of Health with authority to 
adopt rules concerning the registration of code enforcement officers; and Health 
and Safety Code,  s12.001, which provides the Texas Board of Health with the 
authority to adopt rules for the performance of every duty imposed by law on the 
Texas Board of Health, the Texas Department of Health and the commissioner of 
health. These sections implement Texas Civil Statutes, Article 4447bb, relating 
to code enforcement officers. 
 
 
  sec.130.2. Definitions.  The following words and terms, when used in this 
chapter, shall have the following meanings, unless the context clearly indicates 
otherwise. 
   
   Code enforcement officer-An agent of this state or a political subdivision of 
this state who engages in code enforcement. <nl>This term does not include an 
agent of an agency of the federal government. 
 
   
  sec.130.3. The Committee. 
 
  (a) (No change.) 
   
  (b) Terms. 
 
  (1) <nl>The Texas Board of Health (board)<ol> [board] shall appoint  <nl>Code 
Enforcement Advisory Committee (committee)<ol> [committee] members, who shall 
serve staggered terms of six years with two terms beginning September 1 of each 
odd-numbered year. 
   
  (2) (No change.) 
     
  (c)-(f)  (No change.) 
   
  (g) Meetings. 
 
  (1) The committee shall hold meetings as necessary at such designated date, 
place, and time as may determined by the <nl>Texas Department of Health 
(department)<ol> [department] or a majority of the committee. 
   
  (2) (No change.) 
   
  (3)  Meetings shall be announced and conducted under the provisions of the 
Open Meetings Act, <nl>Government Code, Chapter 551,<ol> [Texas Civil Statutes, 
Article 6252-17]. 
     
  (h) (No change.) 
   
  (i) Attendance. 
 
  (1) -(2) (No change.) 
   
  (3) The <nl>department<ol> [Texas Department of Health (department)] shall 
report to the board the attendance records of members. 
     
  (j)-(m) (No change.) 
   
  <nl>(n) Tasks and charge. 
 
  <nl>(1) The committee shall recommend to the board rules to implement the 
Texas Civil Statutes, Article 4447bb (Act). 
   
  <nl>(2) The committee shall prescribe application forms and registration fees 
through the recommended rules. 
   
  <nl>(3) The committee shall advise the board concerning rules relating to the 
definitions of "unprofessional conduct" and "misconduct". 
   
  <nl>(4) The committee shall advise the department concerning the course of 
instruction required for registration and examination guidelines. 
   
  <nl>(5) These tasks shall be performed with the assistance of the department. 
     
  <nl>(o) Statements or actions by individual committee members. The committee 
and the department shall not be bound in any way by any statement or action on 
the part of any committee member except when a statement or action is in 
pursuant of specific instructions of the committee or department. 
 
     
  sec.130.5. Application Procedures. 
 
  (a) (No change.) 
   
  (b)  Purpose. General. 
 
  (1) Unless otherwise indicated, an applicant must submit all required 
information and documentation of credentials on official <nl>Texas Department of 
Health (department)<ol> [department] forms. 
   
  (2)-(5) (No change.) 
     
  (c) General application materials. The application contains the following 
items: 
 
  (1)-(3) (No change.) 
   
  (4) a statement that the applicant has read <nl>Texas Civil Statutes, Article 
4447bb (Act)<ol> [Act] and this chapter and agrees to abide by them; 
   
  (5)-(9) (No change.) 
     
  (d) Documents. The following documents shall be submitted: 
 
  (1) a copy of the code enforcement certificate or certificates of course 
completion (notarized as a true and exact copy of an unaltered original) [if the 
training program is required]; 
   
  (2) (No change.) 
   
  [(3) if applying under sec.130.6(d) of this title (relating to Registration 
Qualification Requirements): 
 
  [(A) an affidavit on an official form indicating at least one year of 
residence in Texas before the date of application; and 
   
  [(B) an affidavit on an official form indicating employment as described in 
sec.130.6(d)(2) of this title (relating to Registration Qualification 
Requirements);] 
     
  <nl>(3)<ol>[(4)] a copy of a high school diploma, general equivalence diploma, 
or diploma (associate degree or bachelor degree) from an accredited college or 
university (notarized as a true and exact copy of an unaltered original); 
<nl>and 
   
  <nl>(4) <ol>[(5)] proof of the successful completion of the examination<nl>. 
<ol> [if already taken; and] 
   
  [(6) proof of one year full-time experience if applying under sec.130.6(a) of 
this title (relating to Registration Qualification Requirements).] 
 
       
  sec.130.6. Registration Qualification Requirements. 
 
  (a) (No change.) 
   
  (b) An applicant who qualifies under Texas Civil Statutes, Article 4447bb, 
sec.6(a) <nl>(Act)<ol> must have: 
 
  (1) (No change.) 
   
  (2) at least one year of full-time experience in the field of code enforcement 
<nl>meeting the following requirements:<ol>[;] 
 
  (A)  experience which may include self-employment or independent contractor 
status; 
   
  <nl>(B) regularly-assigned duties which must have included code enforcement. 
The applicant need not have had the titles "code enforcement officer" or "code 
enforcement officer in training"; 
     
  (3) -(4) (No change.) 
     
  (c) (No change.) 
   
  [(d) An applicant who qualifies under the Act, sec.14, must have: 
 
  [(1) been a resident of the state for at least one year before the date of the 
application; 
   
  [(2)  been employed full-time as a code enforcement officer for at least three 
years for not less than 32 hours per week from September 1, 1988 to August 31, 
1991. 
 
  [(A) Employment includes self-employment or independent contractor status. 
   
  [(B) The regularly-assigned duties must have included code enforcement. The 
applicant need not have had the title "code enforcement officer"; 
     
  [(3) applied on or before September 1, 1993; and 
   
  [(4) filed the documents and application required by sec.130.5 of this title 
(relating to Application Procedures).] 
     
  <nl>(d)<ol>[(e)] On proper application, the <nl>Texas Department of Health<ol> 
[department] shall grant a certificate of registration to a licensee or 
registrant of another state, commonwealth, or territory of the United States 
that has requirements equivalent to or higher than those in effect in this state 
for the registration of a code enforcement officer or code enforcement officer 
in training. 
 
     
  sec.130.7. Educational Requirements. 
 
  (a) (No change.) 
   
  (b) Training program required. An applicant must complete a training program 
in code enforcement from an educational institution accredited or licensed by 
the central education agency or Texas Higher Education Coordinating Board 
[unless the applicant qualifies under Texas Civil Statutes, Article 4447bb, 
sec.14]. 
   
  (c) (No change.) 
 
     
  sec.130.8. Examinations. 
 
  (a) Purpose. This section sets out provisions governing the administration, 
content, grading, and other procedures for examination for registration as a 
code enforcement officer and code enforcement officer in training. 
   
  (b) Examination. The examination shall consist of a written section. 
   
  (c) Application for examination. 
 
  (1) An applicant must file an application in accordance with sec.130.5 of this 
title (relating to Application Procedures). 
   
  (2)  An applicant meeting the requirements of sec.130.6 of this title 
(relating to Registration Qualification Requirements) and sec.130.7 of this 
title (relating to Educational Requirements) shall be approved to take the exam. 
The Texas Department of Health (department) will notify the applicant of his or 
her eligibility for examination. Applications which are received incomplete or 
late may cause the applicant to miss the examination deadline. The notice shall 
include the examination registration form. 
   
  (3) An examination registration form must be completed and returned to the 
department by the applicant with the required examination fee on or before the 
deadline date set by the department. 
   
  (4) The examination will be conducted in the English language. Exceptions will 
be made when English is not the native or first language of the applicant. The 
exam may be taken in an individual's native language if the individual notifies 
the department at least 60 days in advance. The applicant will be responsible 
for any fee or consideration to be paid to an acceptable interpreter and/or 
translator whose services are necessary for the examination. 
   
  (5) An applicant with a disability must inform the department of special 
accommodations requested for examination. The documentation of disability shall 
be completed and signed by a professional familiar with the applicant's 
disability and, if possible, state the appropriate accommodations. The 
professional should be a physician, psychologist, rehabilitation counselor, or 
educator. Reasonable accommodations will be made for disabled applicants. 
     
  (d) Date and location. Examinations will be held on dates and in locations to 
be announced by the department. 
   
  (e) Grading. Examinations will be graded by the department. 
   
  (f) Notice. The department shall notify each examinee of the results of the 
examination within 30 days of the date of the examination. 
   
  (g) Failures. 
 
  (1) A person who fails the examination may retest twice after paying another 
examination fee. All retests must be completed no later than two years after the 
initial date of examination eligibility or the person's application will be 
voided. 
   
  (2) An applicant who fails the examination three times shall have his or her 
application denied unless the applicant furnishes the department proof that he 
or she has retaken the training course described in sec.130.7 of this title. 
   
  (3) An applicant who completes course work as described in paragraph (2) of 
this subsection must file a new application for registration with the 
application fee. 
     
  (h) Failure to apply. Any applicant who fails to apply for and take the 
examination within a period of one year after an examination approval notice is 
mailed to him or her by the department may have such approval voided by the 
department. 
   
  (i) Refunds. No refunds will be made to examination candidates who fail to 
appear for an examination. 
   
  (j) Examination review. Each applicant who fails the examination may request, 
in writing, within 21 days from the date of the notification of failure, an 
examination review. 
 
  (1) All reviews are subject to department security requirements. 
   
  (2) Textbooks and other references may not be used and persons other than the 
applicant and department representatives may not be present during the review. 
   
  (3) The department will set a date and hour within a reasonable time when the 
examination will be available for review. The appointment will be scheduled in 
the office of the Code Enforcement Registration Program during regular business 
hours. 
 
       
  sec.130.9. Determination of Eligibility. 
 
  (a) The <nl>Texas Department of Health (department)<ol> [department] shall 
receive and approve or disapprove all applications for registration as a code 
enforcement officer and code enforcement officer in training. 
   
  (b) (No change.) 
   
  (c)  An application for a registration shall be disapproved if the person has: 
 
  (1)-(3) (No change.) 
   
  (4) violated any provisions of the <nl>Texas Civil Statutes, Article 4447bb 
(Act)<ol> [Act] or this chapter; 
   
  (5) been convicted of a felony or misdemeanor if the crime directly relates to 
the duties and responsibilities of a registered code enforcement officer <nl>or 
code enforcement officer in training <ol> as set out in sec.130. 12 of this 
title (relating to Registration of Persons with Criminal Backgrounds); or 
   
  (6) (No change.) 
     
  (d) (No change.) 
 
     
  sec.130.10. Code Enforcement Officer in Training. 
 
  (a)  Supervision. The purpose of this section is to set out the nature and the 
scope of the supervision provided for code enforcement officers in training. 
 
  (1) Supervision contract. A code enforcement officer in training must have a 
contract on department forms on file with the <nl>Texas Department of Health 
(department)<ol> [department]. 
   
  (2)-(5) (No change.) 
     
  (b)  (No change.) 
   
  (c) Upgrading a code enforcement officer in training. The purpose of this 
subsection is to set out the procedure to upgrade a registration from a code 
enforcement officer in training to a code enforcement officer. 
 
  (1)-(2) (No change.) 
   
  (3) The code enforcement officer in training shall surrender to the department 
the registration certificate and registration identification card and submit the 
registration fee <nl>and registration form<ol> for upgrade of a registration for 
a code enforcement officer in training to a code enforcement officer. 
   
  (4)  (No change.) 
     
  <nl>(d) Time limits. A code enforcement officer in training registration is 
valid for one year from the date the registration is issued and may be renewed 
not more than once after September 1, 1994, by the procedures set out in 
sec.130.12 of this title (relating to Code Enforcement Registration Renewal). 
 
     
  sec.130.12. Code Enforcement Registration Renewal. 
 
  (a) (No change.) 
   
  (b) General. 
 
  (1) (No change.) 
   
  (2) Each registrant is responsible for renewing the registration before the 
expiration date and shall not be excused from paying the reinstatement fee. 
Failure to receive notification from the <nl>Texas Department of Health 
(department)<ol> [department] prior to the expiration date of the registration 
will not excuse failure to file for renewal or late renewal. 
   
  (3)-(5) (No change.) 
     
  (c) Registration renewal. 
 
  (1) (No change.) 
   
  (2) The renewal form for all registrants shall require the provision of the 
preferred mailing address, primary employment address and telephone number, 
category of employment, and a statement of all misdemeanor and felony offenses 
for which the registrant has been convicted. <nl>The registration renewal form 
for code enforcement officers in training shall be accompanied by a current 
supervision contact on department forms complying with sec.130.6(c)(3) of this 
title (relating to Registration Qualification Requirements). 
   
  (3)-(4) (No change.) 
     
  (d)-(f) (No change.) 
 
     
  sec.130.18. Advertising. 
 
  (a) A registrant shall not use advertising that is false, misleading, or 
deceptive or that is not readily subject to verification. 
   
  (b) False, misleading, or deceptive advertising or advertising that is not 
readily subject to verification includes advertising that: 
 
  (1) makes a material misrepresentation of fact or omits a fact necessary to 
make the statement as a whole not materially misleading; 
   
  (2) makes a representative likely to create an unjustified expectation about 
the results of a service or procedure; 
   
  (3)  compares a professional's service with another professional's services 
unless the comparison can be factually substantiated; 
   
  (4) contains a testimonial; 
   
  (5) causes confusion or misunderstanding as to the credentials, education, or 
registration of a professional; or 
   
  (6)  advertises or represents in the use of professional name, a title, or 
professional identification that is expressly or commonly reserved to or used by 
another profession or professional. 
     
  (c) A registrant shall make a reasonable attempt to notify each client of the 
name, mailing address, and telephone number of the department for the purpose of 
directing complaints to the department by providing notification: 
 
  (1) on each written contract for services of a registrant; 
   
  (2) on a sign prominently displayed in the primary place of business of each 
registrant; or 
   
  (3)  in a bill for services provided by a registrant to a client or third 
party. 
     
  (d) A registrant shall be subject to disciplinary action by the department if 
under the Crime Victims Compensation Act, Texas Civil Statutes, Article 8309-1, 
the registrant is issued a public letter of reprimand, is assessed a civil 
penalty by a court, or has an administrative penalty imposed by the attorney 
general's office. 
 
  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 March 28, 1994. 
 TRD-9438254 
  Susan K. Steeg 
 General Counsel, Office of General Counsel 
 Texas Department of Health 
    Earliest possible date of adoption: May 6, 1994 
 For further information, please call: (512) 834-6659 
         
           
  25 TAC sec.130.8 
 
  (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 Department 
of Health or in the Texas Register office, Room 245, James Earl Rudder Building, 
1019 Brazos Street, Austin.) 
   
  The repeal is proposed under Texas Civil Statutes, Article 4447bb, which 
provide the Texas Department of Health with authority to adopt rules concerning 
the registration of code enforcement officers; and Health and Safety Code, 
sec.12.001, which provides the Texas Board of Health with the author ity to 
adopt rules for the performance of every duty imposed by law on the Texas Board 
of Health, the Texas Department of Health and the commissioner of health. These 
sections implement Texas Civil Statutes, Article 4447bb, relating to code 
enforcement officers. 
 
 
  sec.130.8. Examination. 
 
  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 March 28, 1994. 
 TRD-9438255 
  Susan K. Steeg 
 General Counsel, Office of General Counsel 
 Texas Department of Health 
    Earliest possible date of adoption: May 6, 1994 
 For further information, please call: (512) 834-6659 
         
             Part II. Texas Department of Mental Health and Mental Retardation 
  Chapter 403. Other Agencies and the Public 
  
  Subchapter O. Practice and Procedure with Respect to Administrative Hearings 
of the Department in Contested Cases 
 
  25 TAC sec.sec.403.391-403.426 
 
  (Editor's note: The text of the following sections proposed for repeal will 
not be published. The sections may be examined in the offices of the Texas 
Department of Mental Health and Mental Retardation or in the Texas Register 
office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) 
   
  The Texas Department of Mental Health and Mental Retardation (TXMHMR) proposes 
the repeal of sec.sec.403.391-403.426, concerning practice and procedure with 
respect to administrative hearings of the department in contested cases. The 
sections would be replaced by new sec.sec.403.451-403.486, concerning 
administrative hearings of the department in contested cases, which is 
contemporaneously proposed for public comment in this issue of the Texas 
Register. The proposal would affect the Administrative Procedure Act, Government 
Code, Chapter 2001. 
 The sections are proposed for repeal to allow for the proposal of new sections 
which reflect amendments to the Administrative Procedure Act, Government Code, 
Chapter 2001. 
 Leilani Rose, director, Financial Services, has determined that there will be 
no additional fiscal cost to state or local government or small businesses as a 
result of administering the repeals as proposed. There will be no significant 
local economic impact. There is no anticipated cost to persons required to 
comply with the proposed repeals. 
 Cathy Campbell, director, Legal Services, has determined that the public 
benefit is compliance with state law. 
 Comments on the proposal may be submitted to Linda Logan, Director, Policy 
Development, Texas Department Mental Health and Mental Retardation, P.O. Box 
12668, Austin, Texas 78711-2668, within 30 days of publication. 
 The repeals are proposed under the Texas Health and Safety Code, Title 7, 
sec.532.015, which provides the Texas Board of Mental Health and Mental 
Retardation with rulemaking powers. 
 
 
  sec.403.391. Purpose. 
 
   
  sec.403.392. Definitions. 
 
   
  sec.403.393. Applicability and Scope of Rules. 
 
   
  sec.403.394. Filing of Documents. 
 
   
  sec.403.395. Computation of Time; Extension. 
 
   
  sec.403.396. Agreements and Stipulations To Be in Writing. 
 
   
  sec.403.397. Notice and Service in Proceedings. 
 
   
  sec.403.398. Appearances Personally or by Representative. 
 
   
  sec.403.399. Classification of Pleadings and Contents of Record. 
 
   
  sec.403.400. Transcription of Proceedings Required under Certain 
Circumstances. 
 
   
  sec.403.401. Form and Content of Pleadings. 
 
   
  sec.403.402. Deficient Pleadings. 
 
   
  sec.403.403. Motions. 
 
   
  sec.403.404. Amendments. 
 
   
  sec.403.405. Incorporation by Reference of Department Records. 
 
   
  sec.403.406. Docketing and Numbering of Causes; Hearing Date. 
 
   
  sec.403.407. Prehearing Conference. 
 
   
  sec.403.408. Motions for Postponement, Continuance, Withdrawal or Dismissal of 
Protest, or Others Matters before the Department. 
 
   
  sec.403.409. Joint Hearings. 
 
   
  sec.403.410. Place and Nature of Hearings. 
 
   
  sec.403.411. Presiding Examiner. 
 
   
  sec.403.412. Rules of Evidence; Official Notice. 
 
   
  sec.403.413. Formal Exceptions. 
 
   
  sec.403.414. Decisions and Orders. 
 
   
  sec.403.415. Dismissal without Hearing. 
 
   
  sec.403.416. Prepared Testimony. 
 
   
  sec.403.417. Limitations on Number of Witnesses. 
 
   
  sec.403.418. Exhibits. 
 
   
  sec.403.419. Offer of Proof. 
 
   
  sec.403.420. Oral Argument. 
 
   
  sec.403.421. Ex Parte Consultations. 
 
   
  sec.403.422. Participation by Legal Staff. 
 
   
  sec.403.423. Confidentiality. 
 
   
  sec.403.424. Judicial Review. 
 
   
  sec.403.425. Distribution. 
 
   
  sec.403.426. Effective Date. 
 
  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 March 29, 1994. 
 TRD-9438280 
  Ann Utley 
 Chairman 
 Texas Board of Mental Health and Mental Retardation 
    Earliest possible date of adoption: May 6, 1994 
 For further information, please call: (512) 206-4670 
         
           
  Subchapter O. Administrative Hearings of the Department in Contested Cases 
 
  25 TAC sec.sec.403.451-403.486 
 
  The Texas Department of Mental Health and Mental Retardation (TXMHMR) proposes 
new sec.sec.403.451-403.486, concerning administrative hearings of the 
department in contested cases. The new sections are proposed contemporaneously 
with the proposed repeal of existing Chapter 403, Subchapter O, concerning 
practice and procedure with respect to administrative hearings of the department 
in contested cases, which the proposed new subchapter would replace. The 
proposal would affect the Administrative Procedure Act, Government Code, Chapter 
2001. 
 The proposed new sections would reflect amendments to the Administrative 
Procedure Act, Government Code, Chapter 2001, and terminology and references 
would be updated. 
 Leilani Rose, director, Financial Services, has determined that there will be 
no additional fiscal cost to state or local government or small businesses as a 
result of administering the amendments as proposed. There will be no significant 
local economic impact. There is no anticipated cost to persons required to 
comply with the proposed new sections. 
 Cathy Campbell, director, Legal Services, has determined that the public 
benefit is compliance with state law. 
 Comments on the proposed new sections may be submitted to Linda Logan, 
Director, Policy Development, Texas Department Mental Health and Mental 
Retardation, P.O. Box 12668, Austin, Texas 78711-2668, within 30 days of 
publication. 
 The new sections are proposed under the Texas Health and Safety Code, Title 7, 
sec.532.015, which provides the Texas Board of Mental Health and Mental 
Retardation with rulemaking powers. 
 
 
  sec.403.451. Purpose.  The purpose of this subchapter governing practice and 
procedure with respect to all departmental administrative hearings involving 
contested cases is: 
 
  (1) to provide a simple, efficient, and uniform set of procedures for all 
departmental administrative hearings involving contested cases, as that term is 
hereinafter defined, which will adequately protect the rights of all parties 
involved and will be consistent with due process requirements of the Texas and 
federal constitutions; 
   
  (2) to provide and to insure uniform standards, practices, and procedures with 
respect to hearings held in connection with such administrative procedures; and 
   
  (3) to provide a procedure which will effect fair and expeditious 
determination of causes governed by this subchapter and adequately protect the 
procedural rights of all parties. 
 
     
  sec.403.452. Definitions.  The following words and terms, when used in this 
subchapter, shall have the following meanings, unless the context clearly 
indicates otherwise. 
   
   Commissioner-The commissioner of the Texas Department of Mental Health and 
Mental Retardation. 
   
   Contested case -A proceeding in which the legal rights, duties, or privileges 
of a party are to be determined by the department after an opportunity for 
adjudicated hearing except in departmental personnel matters. 
   
   Department-The Texas Department of Mental Health and Mental Retardation 
(TXMHMR). When the context of a rule requires or permits action by the 
department, such action means action taken by the commissioner or the 
commissioner's duly authorized agent or representative. 
   
   Examiner-Any person designated or appointed by the commissioner as the 
commissioner's duly authorized agent or representative to conduct hearings 
provided for by rules of the department. 
   
   Party-Each person or agency named or admitted as a party, pursuant to 
department rules and statutes under which such hearings are requested or held. 
   
   Person-Any individual, partnership, corporation, association, governmental 
subdivision, or public or private organization of any character other than the 
department. 
   
   Pleadings-Written statements filed by parties concerning their respective 
positions, claims, and rights in administrative hearings. 
 
   
  sec.403.453. Applicability and Scope of Rules. 
 
  (a) The provisions of this subchapter shall apply in all contested cases. 
   
  (b)  The provisions of this subchapter shall not be construed so as to 
enlarge, diminish, modify, or alter the jurisdiction, powers, or authority of 
the department or the substantive rights of any person. 
   
  (c) The provisions of this subchapter shall be given a liberal construction in 
order that a just, fair, equitable, and impartial adjudication of the rights of 
the parties under the established principles of substantive law, as determined 
by appropriate statutes or department rules, may be attained with expedition and 
dispatch at the least expense to the department and all parties. 
 
     
  sec.403.454. Filing of Documents. All petitions, complaints, motions, 
protests, replies, answers, notices, and other pleadings relating to any 
proceeding governed by this subchapter which is pending or to be instituted with 
the department shall be filed with the commissioner through the designated 
hearings office. They shall be deemed filed only when actually received by such 
office accompanied by the filing fee, if any, required by statute or department 
rules. 
 
   
  sec.403.455. Computation of Time; Extension. 
 
  (a) In computing any period of time prescribed or allowed by this subchapter, 
by the order of the commissioner, or by any applicable statute or substantive 
rule, the period shall begin on the day after the act, event, default, or 
controversy and conclude on the last day of such computed period, unless that 
day is a Saturday, Sunday, or legal holiday, in which case the period runs until 
the end of the next day which is neither a Saturday, Sunday, nor legal holiday. 
   
  (b) Unless otherwise provided by statute, by this subchapter, or substantive 
department rules, the time for the doing of any act under this subchapter may be 
extended by order of the commissioner, upon written motion duly filed with the 
commissioner through the commissioner's hearings office prior to the expiration 
of the applicable period of time for the doing of same, showing that there is 
good cause for such extension of time and that the need therefor is not caused 
by neglect, indifference, or lack of diligence of movant. A copy of such motion 
shall be served upon all other parties to the proceeding contemporaneously with 
the filing thereof. 
 
     
  sec.403.456. Agreements and Stipulations To Be in Writing. No stipulation or 
agreement between the parties, their attorneys or representatives, with regard 
to any matter involved in any proceeding before the department, shall be in 
force unless it has been reduced to writing and signed by the parties or their 
authorized representatives, or unless it has been dictated into the record by 
them during the course of a hearing or incorporated in an order bearing their 
written approval. This section does not limit a party's ability to waive, 
modify, or stipulate any right or privilege afforded by this subchapter, unless 
precluded by law. 
 
   
  sec.403.457. Notice and Service in Proceedings. 
 
  (a) In a contested case all parties must be afforded an opportunity for 
hearing after reasonable notice of not less than ten days. 
   
  (b) Notice shall include: 
 
  (1) a statement of time, place, and nature of the hearing; 
   
  (2)  a statement of the legal authority and jurisdiction under which the 
hearing is to be held; 
   
  (3) reference to the particular sections of these statutes and rules involved; 
and 
   
  (4) a short and plain statement of the matters asserted. 
     
  (c) If any party is unable to state the matters in detail at the time the 
notice is served, the initial notice may be limited to a statement of the issues 
involved, and thereafter on request by a party by written application, a more 
detailed and definite statement must be furnished within three days prior to the 
date set for hearing. 
   
  (d) In any case where personal service of the notice by department is 
required, the department shall mail same by certified or registered mail to the 
last known place of address of the person entitled to receive such notice. 
   
  (e) A copy of any protest, reply, answer, motion, or other pleadings filed by 
any party in any proceedings subsequent to the institution thereof shall be 
mailed or otherwise delivered by the party filing the same to every other party 
of record. If any party has appeared in the proceeding by attorney or other 
representative authorized under this subchapter to make appearances, service 
shall be made upon such attorney or other representative. The willful failure of 
any party to make such service shall be sufficient grounds for an entry of an 
order by the presiding examiner, striking a protest or reply, answer, motion, or 
other pleadings for the record. 
   
  (f) A certificate of the party, attorney, or representative who files the 
pleadings stating that it has been served on the other parties shall be prima 
facie evidence of such service. The following form of certificate shall be 
sufficient in this connection: I hereby certify that I have this 
_______________day of ____________________, 19_____served copies of the 
foregoing upon all other parties to this proceeding by (here state the service). 
______________________________ (signature) 
 
     
  sec.403.458. Appearances Personally or by Representative.  Any party may 
appear and be represented by an attorney at law authorized to practice law 
before the highest court of this state or by a lay representative of his/her 
choosing. Persons may appear on their own behalf. Such lay representative shall 
not be an employee who has provided direct service to a client who is a party in 
the contested case. A sole proprietor, corporation, partnership, or association 
may appear and be represented by any bona fide officer, employee, or partner of 
such person or entity. 
 
   
  sec.403.459. Classification of Pleadings and Contents of Record. 
 
  (a) Pleadings filed with the hearings office shall be applications, protests, 
petitions, complaints, answers, replies, motions for rehearing, and other 
motions and grievances. Regardless of any error in the designation of a 
pleading, it shall be accorded its true status in the proceeding in which it is 
filed. 
   
  (b) The record under this subchapter includes: 
 
  (1)  all pleadings, motions, and intermediate rulings; 
   
  (2) evidence received or considered; 
   
  (3) a statement of matters officially noticed; 
   
  (4) questions and offers of proof, objections, and rulings on them; 
   
  (5) proposed findings and exceptions; 
   
  (6) any decision, opinion, or report by the officer presiding at the hearing; 
and 
   
  (7)  all staff memoranda or data submitted to or considered by the hearing 
officer or the person involved in making the decision. 
 
       
  sec.403.460. Transcription of Proceedings Required under Certain 
Circumstances. Unless precluded by law, the parties to a contested case may 
agree upon a statement of facts, agree to use taped transcriptions as a 
statement of facts, or agree to the summarization of testimony before the 
hearing officer. Provided, however, that proceedings or any part of them must be 
transcribed on written request of any party. The department may pay the cost of 
the transcript or assess the cost to one or more parties. Nothing provided for 
in this section limits the department to a stenographic record of the 
proceedings. 
 
   
  sec.403.461. Form and Content of Pleadings. 
 
  (a) Pleadings shall be typewritten or printed upon paper 8 1/2 inches wide and 
11 inches long with an inside margin of at least one inch wide and exhibits next 
thereto shall be folded to the same size. Reproductions are acceptable, provided 
all copies are clear and permanently legible. 
   
  (b) Pleadings shall state their object and contain a concise statement of 
facts in support of same and shall be signed by the applicant or the applicant's 
authorized representative. 
   
  (c) The original of every pleading shall be signed in ink for the party filing 
the paper or by his/her authorized representative. Pleadings shall contain the 
address of the party filing the document and the name, telephone number, and 
business address of the representative of such party, if any. 
   
  (d) Pleadings for which no official form is prescribed shall state the 
following: 
 
  (1) the name of the party bringing the hearing; 
   
  (2) the names of any other known parties in interest; 
   
  (3) a short, plain, and concise statement of the facts relied upon by the 
pleader; 
   
  (4) the relief, action, or order sought by the pleader; 
   
  (5)  any matter required by the rules of the department or statute with 
respect to the subject matter before the hearing officer; 
   
  (6) the certificate of service prescribed in sec.403.457(f) of this title 
(relating to Notice and Service in Proceedings). 
 
       
  sec.403.462. Deficient Pleadings. <ol> Upon the filing of any pleading with 
the hearing office, it shall be examined to determine its sufficiency under this 
subchapter. While a liberal construction is to be given to all pleadings and 
technical forms are not to be required, if the pleading does not comply with 
this subchapter, it shall be returned to the person filing same along with the 
statement of the hearing officer of the reason for rejecting same. A corrected 
pleading may then be filed if such correction will not unduly delay the hearing. 
 
   
  sec.403.463. Motions.  Any motion relating to a pending proceeding governed by 
this subchapter shall, unless made during a hearing and dictated into the 
record, be written and shall set forth the relief sought, the specific reasons 
and grounds therefor, and shall be supported by affidavit if based upon matters 
which do not appear of record. Motions not made during a hearing shall be filed 
with the hearings office, who shall act upon it at the earliest practicable 
time. 
 
   
  sec.403.464. Amendments.  Any pleading may be amended at any time upon motion, 
provided that a pleading upon which notice has been issued shall not be amended 
so as to broaden the scope thereof. 
 
   
  sec.403.465. Incorporation by Reference of Department Records.  Any pleading 
may adopt and incorporate by specific reference thereto any part of any document 
or entry in the official files and records of the department. This section shall 
not relieve any part of the necessity of alleging in detail, if required, facts 
necessary to sustain the burden of proof imposed by law. 
 
   
  sec.403.466. Docketing and Numbering of Causes; Hearing Date. 
 
  (a)  Upon receipt of the document intended to institute a proceeding before 
the department under the applicable department rules and the statutes of the 
State of Texas or the United States, which complies with this subchapter as to 
form and content, the hearings office shall docket the same as a pending 
proceeding and serve notice thereon as required by this subchapter. 
   
  (b) The hearing office shall set a date on which the hearing on the 
proceedings will be held and shall assign a presiding examiner to preside over 
such hearing. Said date will be no sooner than 15 days nor later than 45 days 
after the initiating document is received by the hearings office, unless 
otherwise provided in department rules or state statutes. The presiding examiner 
may subsequently postpone or continue the hearing date until a later date if, in 
the presiding examiner's own sound judgment and discretion, good cause requires 
a later date. Good cause includes, but is not limited to, the consideration that 
a later date will result in a fairer and more just determination of the issues 
and that the welfare of any client of the department will not be substantially 
endangered by reason of the postponement. The presiding examiner is not 
precluded by this section or any other section from ordering a postponement or 
continuance of the hearing upon the showing of good cause. 
 
     
  sec.403.467. Prehearing Conference. 
 
  (a) In any proceeding governed by this subchapter, the presiding examiner to 
whom the proceeding has been assigned, on the presiding examiner's own motion or 
on the motion of any party, may direct the parties, their attorneys, or 
representatives to appear before the examiner at a specified time and place for 
a conference prior to hearing for the purpose of formulating issues and 
considering: 
 
  (1)  simplification of issues; 
   
  (2) possibility of admissions of certain averments of fact or stipulations 
concerning the use by any party of matters of public record; 
   
  (3) procedures to be used in the hearing; 
   
  (4) limitation, where possible, of the number of witnesses; 
   
  (5)  such other matters as may aid in the simplification of the proceedings 
and the disposition of the matters in controversy, including settlement of such 
issues as are in dispute; and 
   
  (6) the taking of depositions in accordance with the provisions of the 
Government Code, sec.sec.2001.094-.2001.103. 
     
  (b) Actions taken at the conference shall be recorded in an order by the 
examiner unless the parties enter into a written agreement. 
 
     
  sec.403.468. Motions for Postponement, Continuance, Withdrawal, or Dismissal 
of Protest, or Other Matters before the Department. 
 
  (a)  Motions for postponement, continuance, withdrawal or dismissal of 
protest, or other matters which have been duly set for hearing shall be: 
 
  (1)  in writing; 
   
  (2) filed with the commissioner; and 
   
  (3)  distributed to all interested parties under a certificate of service not 
less than five days prior to the designated date the matter is to be heard. 
     
  (b) Such motions shall set forth under oath the specific grounds upon which 
the moving parties seek such action and shall make reference to all prior 
motions of the same nature filed on the same proceeding. Failure to comply with 
the provisions of this section, except for good cause shown, may be construed as 
lack of diligence on the part of the moving party, and, at the discretion of the 
examiner, may result in the dismissal of the protest or other matter in issue 
with prejudice to refiling. Once a proceeding has actually gone to a hearing 
pursuant to the notice issued thereon, no postponement or continuance shall be 
granted by the examiner without the consent of all parties involved. 
 
     
  sec.403.469. Joint Hearings. <ol> A motion for the consolidation of two or 
more protests or other proceedings shall be in writing, signed by the movant, 
the movant's attorney or representative, and filed with the examiner prior to 
the date set for hearing. No two or more protests or other proceedings shall be 
consolidated or heard jointly without the affirmative consent of all parties to 
such proceedings, unless the department shall find that the two or more 
proceedings involve common questions of law and fact, and shall further find 
that separate hearings would result in unwarranted expense, delay, or 
substantial injustice. 
 
   
  sec.403.470. Place and Nature of Hearings. 
 
  (a) All hearings conducted in any proceedings shall be opened to the public, 
but may be ordered to be closed upon a finding of the presiding examiner of 
possible breach of the privacy of clients, employees, or their records. All 
hearings shall be held in Austin, Texas, in the case of proceedings arising out 
of actions, events, or omissions alleged to have occurred in the central office 
of TXMHMR; and at the location of each facility of the department, in the case 
of all other hearings at which the action, event, or omission complained of 
occurred, unless for good and sufficient cause, in which case the commissioner, 
in the commissioner's own sound judgment and discretion, shall designate another 
place of hearing in the interest of the public. 
   
  (b) All parties, witnesses, attorneys, or other representatives shall comport 
themselves in all proceedings governed by this subchapter with proper dignity, 
courtesy, and respect for the department, the commissioner, the examiner, and 
all other parties. Disorderly conduct will not be tolerated. Attorneys and other 
representatives of parties shall observe and practice the standards of ethical 
behavior prescribed for attorneys at law by the State Bar of Texas. 
 
     
  sec.403.471. Presiding Examiner. 
 
  (a) Hearings will be conducted by an examiner as defined in sec.403.452 of 
this title (relating to Definitions) unless a different fact finder is required 
by statute or other department rules. The examiner and/or such fact finder is at 
all times referred to in this subchapter as the examiner or the presiding 
examiner. The presiding examiner shall have authority to administer oaths, to 
examine witnesses, and to rule upon the admissibility of evidence and amendments 
to pleadings. The presiding examiner shall have the authority to recess any 
hearing from day to day. 
   
  (b) If the presiding examiner dies, becomes disabled, or withdraws or is 
removed from employment or the case at any time before the final decision 
thereof, the department may appoint another presiding examiner who may perform 
any function remaining to be performed without the necessity of repeating the 
previous proceedings in the case. 
   
  (c) The commissioner may designate one or more employees of the department 
with particular expertise and experience who are knowledgeable in the subject 
matter of the hearing in question to assist the presiding examiner in the 
evaluation of evidence presented at the hearing. 
 
     
  sec.403.472. Rules of Evidence; Official Notice. 
 
  (a)  Irrelevant, immaterial, or unduly repetitious evidence shall be excluded 
in all proceedings under this subchapter. The rules of evidence as applied in 
nonjury civil cases in the district courts of this state shall be followed. When 
necessary to ascertain facts not reasonably susceptible of proof under those 
rules, evidence not admissible thereunder may be admitted, except where 
precluded by statute, if it is of a type commonly relied upon by reasonably 
prudent people in the conduct of their affairs. The rules of privilege 
recognized by the laws of the State of Texas shall be given effect. Objections 
to evidentiary offers shall be made and noted in the record. Subject to these 
requirements, if a hearing will be expedited and the interest of the parties 
will not be substantially prejudiced, any part of the evidence may be received 
in written form. 
   
  (b) All testimony in a hearing by witnesses shall be taken under oath as 
prescribed in this subchapter. 
   
  (c) The department shall have the powers of subpoena granted under the 
Government Code, sec.2001. 089, as well as the powers in such article for the 
issuance of commissions to take depositions. The department will, on its own 
motion or on the written request of any party to a contested case pending before 
it on a showing of good cause and on deposit of sums which will reasonably 
insure payment in the amounts estimated to accrue, issue a subpoena in 
accordance with such statute to require the attendance of witnesses and 
production of documents as may be necessary and proper for the purposes of the 
proceedings before it. 
   
  (d)  Discovery. 
 
  (1) Upon motion of any party showing good cause therefor and upon notice to 
all other parties, the examiner may order any party to comply with the following 
requirements; provided, however, that the examiner shall limit such orders as 
justice may require to protect any party or witness from undue annoyance, 
embarrassment, oppression, or expense. Subject to such limitation and any 
limitations provided for discovery under the Rules of Civil Procedure, any party 
may be required: 
 
  (A) to produce and permit the inspection and copying or photographing by or on 
behalf of the moving party any of the following which are in his/her possession, 
custody, or control: any designated documents, papers, books, accounts, letters, 
photographs, objects, or tangible things, not privileged, which constitute or 
contain, or are reasonably calculated to lead to the discovery of, evidence 
material to any matter involved in the action; and 
   
  (B)  to permit entry upon designated land or other property in his/her 
possession or control for the purpose of inspecting, measuring, surveying, or 
photographing the property or any designated object or operation thereon which 
may be material to any matter involved in the action. 
     
  (2) The order shall specify the time, place, and manner of making the 
inspection, measurement, or survey and taking the copies and photographs and may 
prescribe such terms and conditions as are just. 
   
  (3) The identity and location of any potential party or witness may be 
obtained from any communication or other paper in the possession, custody, or 
control of a party, and any party may be required to produce and permit the 
inspection and copying of the reports, including factual observations and 
opinions of an expert who will be called as a witness, provided that the rights 
herein granted shall not extend to other written statements of witnesses or 
other written communications passing between agents or representatives or the 
employees of any party to the hearing or to other communications between any 
party and its agents, representatives, or other employees, where made subsequent 
to the occurrence or transaction upon which the proceeding is based, and made in 
connection with the prosecution, investigation, or defense of such claim or the 
circumstances out of which same has arisen. 
   
  (4) Any person, whether or not a party, shall be entitled to obtain, upon 
request, a copy of any statement he has previously made concerning the action or 
its subject matter and which is in the possession, custody, or control of any 
party. If the request is refused, the person may move for a departmental order 
under this paragraph. For purposes of this section, a statement previously made 
is: 
 
  (A) a written statement signed or otherwise adopted or approved by the person 
making it; or 
   
  (B) a stenographic, mechanical, electrical, or other recording or a 
transcription thereof, which is a substantially verbatim recital of an oral 
statement by the person making it and contemporaneously recorded. 
       
  (e) The taking of depositions shall be in accordance with the provisions of 
the Government Code, sec.sec.2001.094-2001.103. 
   
  (f)  Documentary evidence may be received in the form of copies or excerpts if 
the original is not readily available. On request, parties will be given an 
opportunity to compare the copy with the original. 
   
  (g) A party may conduct cross-examination required for a full and true 
disclosure of the facts. 
   
  (h) In connection with any hearing held in the provisions of this section, 
official notice may be taken of all facts judicially cognizable. In addition, 
notice may be taken of generally recognized facts within the area of the 
department's specialized knowledge. Parties shall be notified either before or 
during the hearing, or by reference in preliminary reports or otherwise, of the 
material officially noticed, including any staff memoranda or data, and they 
must be afforded an opportunity to contest the material so noticed. The special 
skills or knowledge of the department and its staff may be utilized in 
evaluating the evidence. 
   
  (i) The right to assistance or counsel granted under this subchapter may be 
expressly waived by the parties. 
   
  (j) If a party or subpoenaed witness in a contested case is deaf, the 
department shall provide an interpreter whose qualifications are approved by the 
State Commission for the Deaf and Hearing Impaired to interpret the proceedings 
for that person. In this subsection, "person who is deaf" means a person who has 
a hearing impairment, whether or not the person also has a speech impairment, 
that inhibits the person's comprehension of the proceedings or communication 
with others. 
 
     
  sec.403.473. Formal Exceptions. <ol> Formal exceptions to rulings of the 
examiner during the hearing shall be unnecessary. It shall be sufficient that 
the party at the time any ruling is made or sought shall have made known to the 
examiner the action which he desires. 
 
   
  sec.403.474. Decisions and Orders. 
 
  (a) A final decision or order must be in writing or stated in the record. It 
must include the findings of fact and conclusions involved, separately stated. 
Findings of fact, as set forth in statutory language, must be accompanied by a 
concise and explicit statement of the underlying facts supporting such findings. 
   
  (b)  Parties may submit proposed findings of fact, unless precluded by other 
rules or statute from so doing, and a decision shall include a ruling on each 
proposed finding. 
   
  (c) Parties shall be notified either personally or by mail of any decision or 
order. On written request, a copy of this decision or order shall be delivered 
or mailed to any party and to his/her attorney of record. 
   
  (d) A decision is final, in the absence of a timely motion for rehearing, on 
the expiration of the period for filing a motion for rehearing and is final and 
appealable on the date of rendition of the order overruling the motion for 
rehearing, or on the date the motion is overruled by operation of law. If the 
examiner finds that an imminent peril to the public health, safety, or welfare 
requires immediate effect of a final decision or order in a contested case, the 
finding in a decision or order shall be recited as well as the fact that the 
decision or order is final and effective on the date rendered, in which event 
the decision or order is final and appealable on the date rendered and no motion 
for rehearing is required as prerequisite for appeal. In cases involving the 
formality of decisions and actions to be taken pursuant thereto, governed by the 
provisions of the Persons with Mental Retardation Act, Texas Health and Safety 
Code, Subtitle D, the statutory provisions shall govern notwithstanding this 
section. 
   
  (e) Unless otherwise specifically stated by the statute, the final decision or 
order must be rendered within 60 days after the date the hearing is finally 
closed. The department may prescribe a longer period of time within which the 
final order or decision of the examiner shall be issued, but such extension, if 
so prescribed, shall be announced at the completion of the hearing. 
   
  (f)  The final decision or order shall be rendered by the presiding examiner 
unless otherwise provided in this subchapter. If other rules provide for the 
decision to be made by someone other than the presiding examiner, such decision 
maker shall either hear the case or read the record. 
   
  (g)  Except as otherwise provided in subsection (d) of this section, a motion 
for rehearing is a prerequisite to an appeal. A motion for rehearing must be 
filed within 20 days after the date of rendition of a final decision or order. 
Replies to a motion for rehearing must be filed with the hearing office within 
30 days after the rendition of the final decision or order and action on the 
motion must be taken within 45 days after the rendition of the final decision or 
order. If action is not taken within the 45-day period, the motion for rehearing 
is overruled by operation of law 45 days after the date of rendition of the 
final decision or order. The period of time for filing of motions and replies 
taking action may be extended by written order but such extension may not extend 
the period for action beyond 90 days after the date of rendition of the final 
decision or order. In the event of extension, the motion for rehearing is 
overruled by operation of law on the date affixed on the order, or in the 
absence of affixed date, 90 days after the date of the final decision or order. 
   
  (h) The parties may, by agreement with the approval of the examiner, provide 
for modification of the times provided in this section. 
 
     
  sec.403.475. Dismissal without Hearing. The examiner may entertain motions for 
dismissal without a hearing for any of the following reasons: 
 
  (1) the failure to prosecute and go forward with the proceeding within a 
reasonable period of time; 
   
  (2) unnecessary duplication of proceedings; 
   
  (3) withdrawal; 
   
  (4) moot questions or stale protest; 
   
  (5) lack of jurisdiction. 
 
     
  sec.403.476. Prepared Testimony. <ol> In all contested cases and after service 
of copies upon all parties of record at such time as may be designated by the 
examiner, the prepared testimony of a witness upon direct examination, either in 
narrative or in question and answer form, may be incorporated in the records as 
if read or received as an exhibit, upon the witnesses being sworn and 
identifying same. Such witnesses shall be subject to cross-examination, and the 
prepared testimony shall be excepted from motion to strike in whole or in part. 
 
   
  sec.403.477. Limitations on Number of Witnesses.  The examiner shall have the 
right in any proceeding to limit the number of witnesses whose testimony is 
merely cumulative. 
 
   
  sec.403.478. Exhibits. 
 
  (a) The original of each exhibit offered shall be tendered for identification; 
one copy shall be furnished to the presiding examiner and one copy to each party 
of record or his/her attorney or representative. 
   
  (b) In the event an exhibit has been identified, objected to, and excluded, 
the examiner shall determine whether the party offering the exhibit withdraws 
the offer, and if so, permit the return of the exhibit to him/her. If the 
excluded exhibit is not withdrawn, it shall be given an exhibit number for 
identification, endorsed by the examiner with the examiner's own ruling, and 
included in the record for the purpose of preserving an exception. 
   
  (c) Unless specifically directed by the presiding examiner, no exhibit will be 
permitted to be filed in any proceeding after the conclusion of the hearing. In 
the event the examiner allows the exhibit to be filed after the completion of 
the hearing, copies of the late-filed exhibit shall be served on all parties of 
record. 
 
     
  sec.403.479. Offer of Proof. When testimony is excluded by ruling of the 
examiner, the party offering such evidence shall be permitted to make an offer 
of proof by dictating or submitting in writing the substance of the proposed 
testimony prior to the conclusion of the hearing, and such offer of proof shall 
be sufficient to preserve the point for review by the department. The examiner 
may ask such questions of the witness as the examiner deems necessary to satisfy 
himself/herself that the witness would testify as represented in the offer of 
proof. An alleged error in sustaining an objection to questions asked on cross-
examination may be preserved without making an offer of proof. 
 
   
  sec.403.480. Oral Argument. <ol> A party or a party's representative is 
entitled to present oral argument if that party has requested the opportunity to 
do so. A request for oral argument may be incorporated in exceptions, briefs or 
replies to exceptions, motions for rehearing, or separate pleadings. A request 
for opportunity to present oral argument must be made prior to the final 
determination of any proceeding. The examiner has the authority to limit the 
time and scope of any oral argument in the proceeding he is conducting. 
 
   
  sec.403.481. Ex Parte Consultations. Unless required for the disposition of ex 
parte matters authorized by law, the examiner and/or other persons assigned to 
render a decision or to make findings of fact and conclusions of law in a 
contested case may not communicate directly or indirectly in connection with any 
issue of fact or law with any party or his/her representative, except on notice 
and opportunity for all parties to participate. Any department decision-maker 
may communicate ex parte with other members of the department who have not 
participated in any hearing in the case for the purpose of utilizing the special 
skills or knowledge of the department's staff in evaluating the evidence in 
accordance with the Government Code, sec.2001.061 and sec.403.472(h) of this 
title (relating to Rules of Evidence; Official Notice). 
 
   
  sec.403.482. Participation by Legal Staff. The legal staff of the department 
may participate in hearings governed by this subchapter. 
 
   
  sec.403.483. Confidentiality. 
 
  (a) In any hearing or other proceedings conducted by the department, the 
identity of an individual with mental illness or mental retardation shall not be 
revealed or made a matter of public record in any way unless the party or person 
desiring or attempting to reveal the identity of such individual: 
 
  (1) has secured from the individual with mental illness or mental retardation 
or the person legally authorized to give consent for such individual written 
consent to reveal for the purposes of the hearing the identity of such 
individual, and the specific information to be revealed is set forth in such 
written consent, and such written consent has been filed with the commissioner; 
and 
   
  (2) has established to the satisfaction of the hearing examiner that the 
identity of the individual with mental illness or mental retardation is relevant 
and material to an issue in the hearing. 
     
  (b) Any attempt by a party to circumvent the requirements of subsection (a) of 
this section will be sufficient grounds for the hearing examiner to strike the 
party and any protest or pleading of the party from the hearing or to dismiss 
the hearing with prejudice. 
 
     
  sec.403.484. Judicial Review. 
 
  (a) Unless otherwise specifically provided by statute, a party who has 
exhausted all administrative remedies available within department rules and who 
is aggrieved by a final decision in a contested case is entitled to a judicial 
review. This section is cumulative of any other means of redress provided by 
statute and any statutory provision for specific judicial review shall govern 
notwithstanding this section. 
   
  (b) Proceedings for review are instituted by filing a petition within 30 days 
after the decision complained of is final and appealable. Unless otherwise 
provided by statute: 
 
  (1) the petition is filed in a district court of Travis County, Texas; 
   
  (2) a copy of the petition must be served on the department and all parties of 
record in the proceedings before the department; and 
   
  (3) the filing of the petition vacates a decision for which trial de novo is 
the manner of review authorized by law but does not affect the enforcement of a 
decision for which another manner of review is authorized. If the manner of the 
review authorized by law for the decision complained of is by trial de novo, the 
reviewing court shall try all issues of fact and law in a manner applicable to 
other civil suits in the state. 
     
  (c) If the manner of review authorized by law for the decision complained of 
is other than by trial de novo, in the absence of other specific statutory 
provisions, the provisions of the Government Code, sec.2001. 175, shall be 
applicable. 
 
     
  sec.403.485. Distribution.  This subchapter governing administrative hearings 
of the department in contested cases shall be distributed to: 
 
  (1) members of the Texas Board of Mental Health and Mental Retardation; 
   
  (2) deputy commissioners; 
   
  (3) associate and assistant deputy commissioners; 
   
  (4) management and program staff of the central office; 
   
  (5) superintendents/directors of all department facilities; 
   
  (6) persons designated as hearing examiners; and 
   
  (7) upon request, any party to an administrative hearing conducted under this 
subchapter. 
 
     
  sec.403.486. References.  Reference is made to the following statutes: 
 
  (1) Government Code, sec.sec.2001.061, 2001.089, 2001.094-.103, and 2001.175; 
   
  (2) Rules of Civil Procedure; and 
   
  (3) Persons with Mental Retardation Act, Texas Health and Safety Code, 
Subtitle D. 
 
  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 March 29, 1994. 
 TRD-9438281 
  Ann Utley 
 Chairman 
 Texas Board of Mental Health and Mental Retardation 
    Earliest possible date of adoption: May 6, 1994 
 For further information, please call: (512) 206-4670 
         
               Chapter 405. Client (Patient) Care 
  
  Subchapter E. Electroconvulsive Therapy 
 
  25 TAC sec.405.104 
 
  The Texas Department of Mental Health and Mental Retardation (TXMHMR) proposes 
an amendment to sec.405.104, concerning general requirements. 
 The amendment to sec.405.104 would add subsection (f) to prohibit the use of 
regressive, or depatterning, ECT; it would also add subsection (g) to indicate 
that the use of multiple-monitored ECT requires consultation with another board-
certified psychiatrist with training and experience in the use of ECT. 
 Leilani Rose, director, Office of Financial Services, has determined that there 
are no significant fiscal implications to state or local government or small 
businesses as a result of administering the sections as proposed. There is no 
anticipated local economic impact. 
 William Reid, M.D., M.P.H., medical director, has determined the public benefit 
is the adoption of rules that update standards of care. 
 Written comments on the proposal may be submitted to Linda Logan, Director, 
Policy Development, Texas Department of Mental Health and Mental Retardation, 
P.O. Box 12668, Austin, Texas 78711-2668, within 30 days of publication. 
 The sections are proposed under Texas Civil Statutes, Article 5547-202, 
sec.2.11, which provides the Texas Board of Mental Health and Mental Retardation 
with rulemaking powers. 
 
 
  sec.405.104. General Requirements. 
 
  (a) Only a physician licensed to practice medicine in Texas may administer ECT 
and a physician may not delegate the act of administering the therapy. A 
nonphysician who administers ECT is considered to be practicing medicine in 
violation of the Medical Practice Act, Texas Civil Statutes, Article 4495b. 
   
  (b) No person under the age of 16 shall receive ECT. 
   
  (c) Prior to receiving ECT, every patient, voluntary or involuntary, competent 
or incompetent, shall be given full explanation of ECT consistent with the 
definition of ECT in  s405.103 of this title (relating to definitions) and 
meeting the requirements of sec.405.108 of this title (relating to informed 
consent to electroconvulsive therapy). 
   
  (d) If any patient, without regard to competency, objects to ECT and there is 
an alternative method of treatment (that is not contraindicated and which has a 
reasonable potential for success) to which the patient does not object, the 
alternative method shall be considered and, if mutually acceptable to the 
patient or the guardian of the person of the patient and the treating physician, 
shall be used. It is not to be inferred, however, that ECT should be held as a 
treatment of "last resort." Full documentation of the factors considered in 
arriving at the decision to use ECT, the consent process, the treatment 
procedures, and patient response to treatment shall be entered into the 
patient's permanent medical record. 
   
  (e) The use of ECT for punishment, solely for control of behavior, for 
convenience of staff, in order to make patients more compliant, and the use of 
ECT in a discriminatory or abusive manner are explicitly prohibited. 
   
  <nl>(f) Consistent with prevailing standards of practice, and based on 
evidence of unacceptably high risks and hazards as reflected in biomedical 
literature, "regressive" or "depatterning" ECT is prohibited. 
   
  <nl>(g)  A second opinion from a fully trained psychiatrist experienced in ECT 
is required before offering or providing multiple-monitored ECT. The opinion 
must be documented in the patient's medical record. When this technique is 
proposed, it is required that information describing the differences in benefits 
and risks of multiple-monitored ECT, compared to conventional ECT, be provided 
and documented as part of the informed consent process. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 30, 1994. 
 TRD-9438306 
  Ann K. Utley 
 Chair 
 Texas Board of Mental Health and Mental Retardation 
    Earliest possible date of adoption: May 6, 1994 
 For further information, please call: (512) 206-4516 
         
                   
  TITLE 37. PUBLIC SAFETY AND CORRECTIONS 
 Part XIII. Texas Commission on Fire Protection 
  Chapter 531. Fire Alarm Rules 
  
  37 TAC sec.sec.531.7, 531.13, 531.14, 531.18-531.24 (Editor's note: The Texas 
Commission on Fire Commission inadvertently filed incorrect language to these 
new sections in the March 15, 1994, issue of the Texas Register (19 TexReg 
1783). The sections are being republished in this issue. The commission has 
extended the comment period on these rules to May 6, 1994.) 
 
  The Texas Commission on Fire Protection proposes new sec. s531.7, 531.13, 
531.14, 531.18-531.24, concerning regulation of the business of inspecting, 
planning, certifying, leasing, selling, servicing, testing, installing, 
monitoring, and maintaining fire alarm or fire detection devices and systems. 
The new  s531.7 and sec.531.13 update NFPA Standard 12A to 1992, and NFPA 
Standards 12, 70, 72 and 90A to 1993; it also adopts UL 827 (1989), Standard for 
Central Stations for watchmen, fire alarm, and supervisory services. The new 
sec.531.14 makes the initial examination and reexamination fees non-refundable 
and non-transferable. Section 531.18 is a new section requiring inspections to 
be performed and documented by a licensed fire alarm technician or planner at 
certain times. The new sec.sec.531.19-531.24 renumber the remaining sections 
accordingly. 
 G. Mike Davis, interim state fire marshal, 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. Davis 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 more efficient regulation of these businesses, with a 
resulting improvement in the quality of protection afforded property and lives 
by fire alarm equipment. 
 Additionally, Mr. Davis has determined that for each year of the first five 
years the new sec.531.14 is in effect, the public benefit anticipated as a 
result of enforcing this section will be adequate testing space for all persons 
taking examinations qualifying them as fire protection licensees. 
 Comments on the proposal may be submitted to Michael E. Hines, Executive 
Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 
78768-2286. 
 The new sections are proposed under Article 5.43-2, sec. s4, 4A, and 6, which 
provides the Texas Commission on Fire Protection with the authority to adopt 
rules necessary to its administration through the state fire marshal for the 
protection and preservation of life and property. 
 The Texas Insurance Code, Article 5.43-2, Rule numbers- ssec.531.7, 531.13, 
531.14, 531.18-531.24 is affected by these proposed new sections. 
 
 
  sec.531.7. Adopted Standards. 
 
  (a) The commission adopts by reference those sections of the following 
copyrighted minimum standards, recommendations, and appendices concerning fire 
alarm, fire detection, or supervisory services or systems, except to the extent 
they are at variance to sections of this chapter, the Texas Insurance Code, 
Article 5.43-2, or other state statutes. The standards are published by and are 
available from the National Fire Protection Association, Quincy, Massachusetts. 
 
  (1) NFPA 11-1988, Standard on Low Expansion Foam and Combined Agent Systems. 
   
  (2)  NFPA 11A-1988, Standard for Medium- and High-Expansion Foam Systems. 
   
  (3) NFPA 12-1993, Standard for Carbon Dioxide Extinguishing Systems. 
   
  (4) NFPA 12A-1992, Standard on Halon 1301 Fire Extinguishing Systems. 
   
  (5) NFPA 12B-1990, Standard on Halon 1211 Fire Extinguishing Systems. 
   
  (6) NFPA 13-1991, Standard for the Installation of Sprinkler Systems. 
   
  (7) NFPA 13A-1987, Recommended Practice for the Inspection, Testing, and 
Maintenance of Sprinkler Systems. 
   
  (8) NFPA 13D-1991, Standard for the Installation of Sprinkler Systems in One- 
and Two-Family Dwellings and Mobile Homes. 
   
  (9) NFPA 13R-1991, Standard for the Installation of Sprinkler Systems in 
Residential Occupancies up to Four Stories in Height. 
   
  (10) NFPA 15-1990, Standard for Water Spray Fixed Systems for Fire Protection. 
   
  (11) NFPA 16-1991, Standard on Deluge Foam-Water Sprinkler and Foam-Water 
Spray Systems. 
   
  (12) NFPA 17-1990, Standard for Dry Chemical Extinguishing Systems. 
   
  (13) NFPA 17A-1990, Standard on Wet Chemical Extinguishing Systems. 
   
  (14) NFPA 25-1992. Standard for Inspection, Testing and Maintenance of Water 
Based Extinguishing Systems. 
   
  (15) NFPA 70-1993, National Electrical Code. 
   
  (16) NFPA 72-1993, National Fire Alarm Code. 
   
  (17) NFPA 90A-1993, Standard for the Installation of Air Conditioning and 
Ventilating Systems. 
   
  (18) NFPA 101-1985 and later editions, Code for Safety to Life from Fire in 
Buildings and Structures (Life Safety Code), or a local jurisdiction may adopt 
one set of the model codes listed in subsection (b) of this section in lieu of 
NFPA 101. 
   
  (19) UL 827 (1989), as amended through October 14, 1993, Standard for Central 
Stations for watchmen, fire alarm, and supervisory services. 
     
  (b)  The acceptable alternative model code sets are: 
 
  (1) the Uniform Building Code-1985 and later editions, and the Uniform Fire 
Code-1985 and later editions; or 
   
  (2) the SBCCI Building Code-1985 and later editions, and the SBCCI Fire Code-
1985 and later editions; or 
   
  (3)  the BOCA Building Code-1985 and later editions, and the BOCA Fire Code-
1985 and later editions. 
 
       
  sec.531.13. Applications. 
 
  (a) Certificates of registration. 
 
  (1) Applications for certificates and branch office certificates must be 
submitted on forms provided by the state fire marshal and be accompanied by all 
fees, documents, and information required by the Insurance Code, Article 5. 43-
2, and the sections of this chapter. An application will not be deemed complete 
until all required forms, fees, and documents have been received in the State 
Fire Marshal's office. 
   
  (2) Applications must be signed by the sole proprietor, or by each partner of 
a partnership, or by an officer of a corporation. For applicants using an 
assumed name, the application must also be accompanied by evidence of compliance 
with the Assumed Business or Professional Name Act, Texas business and Commerce 
Code, Chapter 36. The application must also include written authorization by the 
applicant permitting the state fire marshal or his representative to enter, 
examine, and inspect any premises, building, room, or establishment used by the 
applicant while engaged in the business to determine compliance with the 
provisions of the Insurance Code, Article 5.43-2, and the sections of this 
chapter. 
   
  (3)  For corporations, the application must also include the name of each 
shareholder owning more than 25% of the shares issued by the corporation, the 
corporate taxpayer identification number, the charter number, a copy of the 
corporate charter of a Texas corporation, or, in the case of a foreign 
corporation, a copy of the Texas certificate of authority to do business, and a 
copy of the corporation's current franchise tax certificate of good standing 
issued by the State Comptroller's office. 
   
  (4) Insurance required. 
 
  (A) The state fire marshal will not issue a certificate of registration under 
these sections unless the applicant files with the State Fire Marshal's office 
evidence of an acceptable general liability insurance policy. 
   
  (B) Each registered firm must maintain in force and on file in the State Fire 
Marshal's office a certificate of insurance identifying the insured and the 
exact nature of the business insured. In identifying the named insured, the 
certificate of insurance must include either an assumed name of the name of the 
corporation, partners, if any, or sole proprietor, if applicable. 
     
  (5) Applicants for a certificate of registration who engage in monitoring must 
provide the specific business location(s) where monitoring will take place and 
the name and license number of the fire alarm licensee(s) at each business 
location. In addition the applicants must: 
 
  (A) for a central station: provide evidence of listing or certification as a 
central station by a testing laboratory approved by the Texas Commission on Fire 
Protection and a statement that the monitoring service is in compliance with 
adopted NFPA 72; or 
   
  (B) for a remote station: provide evidence of listing or certification as a 
remote station by a testing laboratory approved by the Texas Commission on Fire 
Protection, and a statement that the monitoring service is in compliance with 
adopted NFPA 72. 
       
  (b) Fire alarm licenses. 
 
  (1) In order to be complete, applications for a fire alarm technician, 
residential fire alarm superintendent (single station), residential fire alarm 
superintendent, or fire alarm planning superintendent license from an employee 
or agent of a registered firm must be submitted on forms provided by the state 
fire marshal and be accompanied by all fees, documents, and information required 
by the Insurance Code, Article 5.43-2, and the sections of this chapter. 
Applications must be signed by the applicant and by a person authorized to sign 
on behalf of the registered firm. All applicants for any type of license must 
successfully complete a qualifying examination regarding Insurance Code, Article 
5.43-2, and the Fire Alarm Rules to be conducted by the State Fire Marshal's 
office. 
   
  (2) Applicants for fire alarm technician licenses must: 
 
  (A) furnish notification from NICET confirming the applicant's successful 
completion of the examination requirements in work elements pertaining to fire 
alarm systems, as determined by the state fire marshal; or 
   
  (B) successfully complete a technical qualifying examination to be conducted 
by the State Fire Marshal's office. 
     
  (3) Applicants for a residential fire alarm superintendent (single station) 
license must successfully complete a technical qualifying examination to be 
conducted by the State Fire Marshal's office. 
   
  (4) Applicants for a residential fire alarm superintendent license must: 
 
  (A) furnish notification from NICET confirming the applicant's successful 
completion of the examination requirements in work elements pertaining to fire 
alarm systems, as determined by the state fire marshal; or 
   
  (B) successfully complete a technical qualifying examination to be conducted 
by the State Fire Marshal's office. 
     
  (5) Applications for a fire alarm planning superintendent license must be 
accompanied by one of the following documents as evidence of technical 
qualifications for a license: 
 
  (A) proof of registration in Texas as a professional engineer; or 
   
  (B) a copy of NICET's notification letter confirming the applicant's 
successful completion of the examination requirements for certification at Level 
II for fire alarm systems. 
     
  (6)  Individuals applying for a fire alarm planning superintendent license on 
or before September 1, 1989, without completing the NICET examination 
requirements may be issued a license for one year. At the time of renewal of 
such license, the applicant must attach to the application a copy of NICET's 
notification letter confirming the applicant's successful completion of the 
examination requirements for certification at Level II for fire alarm systems. 
     
  (c) Renewal Applications. 
 
  (1) In order to be complete, renewal applications for certificates and 
licenses must be submitted on forms provided by the state fire marshal and be 
accompanied by all fees, documents, and information required by the Insurance 
Code, Article 5.43-2, and the sections of this chapter. A complete renewal 
application deposited with the United States Postal Service is deemed to be 
timely filed, regardless of actual date of delivery, when its envelope bears a 
postmark date which is before the expiration of the certificate or license being 
renewed. 
   
  (2)  A license may not be renewed if the applicant is not currently an 
employee or an agent of a registered firm. 
 
       
  sec.531.14. Fees. 
 
  (a) Every fee required in accordance with the provisions of the Insurance 
Code, Article 5.43-2, and the sections of this chapter must be paid by cash, 
money order, or check. Money orders and checks must be made payable to the Texas 
Commission on Fire Protection. 
   
  (b)  Fees must be paid at the Office of the State Fire Marshal in Austin, 
Texas, or mailed to an address specified by the state fire marshal. 
   
  (c)  Fees are as follows. 
 
  (1) Fire alarm certificate of registration: 
 
  (A) initial fee-$500; 
   
  (B) renewal fee (for two years)-$1, 000; 
   
  (C) branch office initial fee-$150; and 
   
  (D) renewal fee (for two years)-$300. 
     
  (2) Fire alarm technician license: 
 
  (A) initial fee-$100; and 
   
  (B) renewal fee (for two years) -$200. 
     
  (3) Residential fire alarm superintendent (single station) license: 
 
  (A) initial fee-$100; and 
   
  (B) renewal fee (for two years)-$200. 
     
  (4) Residential fire alarm superintendent license: 
 
  (A) initial fee-$100; and 
   
  (B) renewal fee (for two years) -$200. 
     
  (5) Fire alarm planning superintendent license: 
 
  (A)  initial fee-$100; and 
   
  (B) renewal fee (for two years)-$200. 
     
  (6) Duplicate or revised certificates or licenses or other requested changes 
to certificates or licenses-$20 
   
  (7) Examination fee-$20 (non-refundable/non-transferable). The fee is 
forfeited if the applicant does not appear for the scheduled examination. 
   
  (8) Reexamination fee-$20 (non-refundable/non-transferable). The fee is 
forfeited if the applicant does not appear for the scheduled examination. 
     
  (d) Late fees are required of all certificate or license holders who fail to 
submit complete renewal applications before the expiration of the certificate or 
license except as provided in the Insurance Code, Article 5.43-2, sec.5C(c). 
   
  (e) Fees for certificates and licenses which have been expired for less than 
two years include both renewal and late fees and must be determined in 
accordance with the following schedule. Expired 1 day to 90 days: 
 
  [graphic] 
        
  
  sec.531.18. Installation Inspections. <ol> Inspections shall be performed by a 
licensed fire alarm technician or planner and be documented on the inspection 
form. The registered firm shall notify the authority having jurisdiction if 
initiation of corrective action does not take place within ten calendar days. 
The completed form shall be kept on file at the licensed firm's office for a 
period of five years from the date of system certification. Inspections shall be 
performed by the licensed firm in order to assure proper installation techniques 
are followed; at the following stages of installation: 
 
  (1) at the completion of the device back-box installation but prior to the 
start of cable installation; 
   
  (2) at the completion of cable installation but prior to the start of device 
installation; and 
   
  (3)  at the completion of device installation but prior to activating the fire 
alarm system. The Fire Alarm System Installation Inspection Form is as follows. 
 
  
   
  [graphic] 
         
  
  sec.531.19. Fire Alarm and Detection System Plans. 
 
  (a) Each fire alarm system or modification to an existing system must be 
planned by a person holding a fire alarm planning superintendent license or a 
Texas registered professional engineer. 
   
  (b) Plans showing details of system wiring, control panel terminal 
identification, and device location, with functional information and 
instructions on system operation, must be provided to the building owner or his 
representative. Subsequent modifications, additions, or alterations must be 
legibly noted on updated plans and provided to the owner or his representative. 
   
  (c) Plans must bear the name, signature, and license number of the licensed 
fire alarm planning superintendent or Texas registered professional engineer, 
the completion date and the name, address, and certificate number of the 
registered firm. 
   
  (d)  A rubber stamp may be used by a licensed fire alarm planning 
superintendent to supply the information required by subsection (c) of this 
section, except that a stamped signature is prohibited. If a rubber stamp is 
used, it must produce an imprint at least two inches wide by one inch high, all 
in bold type and capital letters, and in the following format: 
 
  [graphic] 
       
  
  sec.531.20. Installation and Service Labels. 
 
  (a) After an installation or modification has been completed, an installation 
label must be affixed to the inside of the control panel cover or, if the system 
has no panel, in a permanently visible location designated by the property 
owner. Installation labels must be four inches in height and four inches in 
width and must be of the gummed label type. Installation labels must be white 
with black lettering. Installation labels must contain the following information 
in the format of the label shown in subsection (b) of this section: 
 
  (1) the inscription "DO NOT REMOVE BY ORDER OF THE STATE FIRE MARSHAL-FIRE 
ALARM INSTALLATION RECORD" (all in capital letters, at least 10-point bold face 
type) ; 
   
  (2) the firm's name, address, and telephone number (either main office or 
branch office); 
   
  (3) the firm's certificate-of-registration number; 
   
  (4) the signature and license number of the certifying licensee (a stamped 
signature is prohibited); 
   
  (5) if required, the name and license number of the planning superintendent or 
Texas registered professional engineer; and 
   
  (6) the date of installation. 
     
  (b)  Installation label: 
 
  [graphic] 
   
  (c) After any service, including testing in connection with initial 
installation, a fire alarm service label must be completed in detail and affixed 
to the inside of the control panel cover or, if the system has no panel, in a 
permanently visible location designated by the property owner. The signature of 
the licensee on the service label certifies that the service performed complies 
with requirements of law. 
   
  (d) A new service label must be affixed each time service is performed and 
must be green in color with black lettering. 
   
  (e) The label must be at least three inches in height and three inches in 
width and must be of the gummed label type that allows for label removal. 
Service labels must contain the following information in the format of the 
service label shown in subsection (f) of this section: 
 
  (1) the inscription "DO NOT REMOVE BY ORDER OF THE STATE FIRE MARSHAL-SERVICE 
RECORD" (all in capital letters, at least 10-point bold face type); 
   
  (2) the firm's name, address, and telephone number (either main office or 
branch office); 
   
  (3) the firm's certificate-of-registration number; 
   
  (4) the signature and license number of the certifying licensee (a stamped 
signature is prohibited); 
   
  (5) the date of service performed; and 
   
  (6) the type of service performed. 
     
  (f) Service label: 
 
  [graphic] 
   
  (g) If a fire alarm system does not comply with applicable standards, has a 
fault condition, or is inoperable, the owner or his representative must be 
notified in writing by the registered firm of the conditions which cause the 
system to be out of compliance, to be in a fault condition, or to be inoperable. 
The registered firm must send a copy of this notice to the authority having 
jurisdiction and must comply with the requirements of this section and 
sec.531.21 of this title (relating to Red Labels). 
 
     
  sec.531.21. Yellow Labels. 
 
  (a) If a fire alarm system does not comply with applicable standards adopted 
at the time the system was installed or has a fault condition that does not 
render the system inoperable, a completed yellow label must be attached to the 
outside of the control panel cover or, if the system has no panel, in a 
permanently visible location designated by the property owner to indicate that 
corrective action is necessary. 
   
  (b) The signature of the licensee on a yellow label certifies that the 
conditions listed on the label cause the system to be out of compliance with 
applicable standards. 
   
  (c) Yellow labels must be at least three inches in height and three inches in 
width and be of a gummed label type that allows for label removal. Labels must 
be printed with black lettering. 
   
  (d) Yellow labels must bear the following information in the format of the 
label shown in subsection (e) of this section: 
 
  (1)  the inscription "DO NOT REMOVE BY ORDER OF THE STATE FIRE MARSHAL-SYSTEM 
DOES NOT COMPLY WITH APPLICABLE STANDARDS AND/OR HAS A FAULT CONDITION" (all in 
capital letters, at least 10-point bold face type); 
   
  (2) the firm's name, address, and telephone number (either main office or 
branch office); 
   
  (3) the firm's certificate-of-registration number; 
   
  (4) the signature and license number of the certifying licensee (a stamped 
signature is prohibited); 
   
  (5) the date the label is affixed; and 
   
  (6) a list of the non-complying and/or fault conditions. 
     
  (e) A yellow label may be removed only by a licensed employee or agent of a 
registered firm that has corrected the conditions and certified the service. 
   
  (f) Yellow label: 
 
  [graphic] 
       
  
  sec.531.22. Red Labels. 
 
  (a) If the system or any part thereof is inoperable, a completed red label 
must be attached to the outside of the control panel cover or, if the system has 
no panel, in a permanently visible location designated by the property owner to 
indicate that corrective action or system replacement is necessary. 
   
  (b) The signature of the licensee on a red label certifies that the conditions 
listed on the label have caused the system to be inoperable. 
   
  (c) A completed service label must not be attached to the system by the 
licensee until the conditions are corrected and the fire alarm system: 
 
  (1) is reinspected; 
   
  (2) is in compliance with applicable standards adopted at the time of 
installation; and 
   
  (3) is in good operating condition. 
     
  (d) Red labels must be at least three inches in height and three inches in 
width and be of a gummed label type that allows for label removal. Labels must 
be printed with black lettering. 
   
  (e) Red labels must bear the following information in the format of the label 
shown in subsection (g) of this section: 
 
  (1) the inscription "DO NOT REMOVE BY ORDER OF THE STATE FIRE MARSHAL-SYSTEM 
IS INOPERABLE" (all in capital letters, at least 10-point bold face type); 
   
  (2) the firm's name, address, and telephone number (either main office or 
branch office); 
   
  (3) the firm's certificate-of-registration number; 
   
  (4) the signature and license number of the certifying licensee (a stamped 
signature is prohibited); 
   
  (5) the date the label is affixed; and 
   
  (6) the list of conditions. 
     
  (f) A red label may be removed only by a licensed employee or agent of a 
registered firm who has corrected the conditions and certified the service. 
   
  (g) Red label: 
 
  [graphic] 
       
  
  sec.531.23. Enforcement. 
 
  (a) The State Fire Marshal, or his representative, may conduct investigations 
of registered firms to determine compliance with the Insurance Code, Article 
5.43-2 and this chapter. An investigation may be initiated on the written 
complaint of any party or by the Texas Commission on Fire Protection on its own 
motion. 
   
  (b) When an investigation reveals non-compliance, the firm and any licensee 
responsible for the work shall be notified in writing of the non-compliance upon 
completion of the investigation report. 
   
  (c) The Texas Commission on Fire Protection, in its discretion, may require 
correction of the violations found, or it may initiate agency proceedings 
seeking appropriate sanctions pursuant to the Insurance Code, Article 1.10, 
sec.7(a) and Article 5.43-2, sec.10(b). 
 
     
  sec.531.24. Severability.  If any provision of this chapter or the application 
thereof to any person or circumstance is held invalid for any reason, the 
invalidity shall not affect the other provisions or any other application of 
this chapter which can be given effect without the invalid provisions or 
application. To this end all provisions of the sections of this chapter are 
declared to be severable. 
 
  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 March 2, 1994. 
 TRD-9437072 
  Jack Woods 
 General Counsel 
 Texas Commission on Fire Protection 
    Earliest possible date of adoption: April 15, 1994 
 For further information, please call: (512) 873-1700 
         
               
  TITLE 40. SOCIAL SERVICES AND ASSISTANCE 
 Part I. Texas Department of Human Services 
  Chapter 19. Long-Term Care Nursing Facility Requirements for Licensure and 
Medicaid Certification 
  
  The Texas Department of Human Services (DHS) proposes the repeal of sec.19. 
218 and an amendment to sec.19.219, concerning incompetency and documentation 
for the delegation of long-term care resident's rights, in its Long-Term Care 
Nursing Facility Requirements rule chapter. The purpose of the proposal is to 
comply with Senate Bill 332, which provides a surrogate decision-making process 
for incompetent adults residing in nursing facilities. 
 Burton F. Raiford, commissioner, has determined that for the first five-year 
period the proposal will be in effect there will be no fiscal implications for 
state or local government as a result of enforcing or administering the 
proposal. 
 Mr. Raiford also has determined that for each year of the first five years the 
proposal is in effect the public benefit anticipated as a result of enforcing 
the proposal will be enhancement of the rights of nursing facility residents. 
There will be no effect on small businesses. There is no anticipated economic 
cost to persons who are required to comply with the proposal. 
 Questions about the content of the proposal may be directed to Maxcine 
Tomlinson at (512) 450-3169 in DHS's Institutional Policy Section. Comments on 
the proposal may be submitted to Nancy Murphy, Agency Liaison, Policy and 
Document Support-082, Texas Department of Human Services W-402, P.O. Box 149030, 
Austin, Texas 78714-9030, within 30 days of publication in the Texas Register. 
   
  Subchapter C, Resident Rights 
 
  40 TAC sec.19.218 
 
  (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 Department 
of Human Services or in the Texas Register office, Room 245, James Earl Rudder 
Building, 1019 Brazos Street, Austin.) 
   
  The repeal is proposed under the Human Resources Code, Title 2, Chapters 22 
and 32, which provides the department with the authority to administer public 
and medical assistance programs and under Texas Civil Statutes, Article 4413 
(502), sec.16, which provide the Health and Human Services Commission with the 
authority to administer federal medical assistance funds. The repeal implements 
the Human Resources Code, sec.sec.32.001-32.042. 
 
 
  sec.19.218. Incompetency. 
 
  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 March 30, 1994. 
 TRD-9438324 
  Nancy Murphy 
 Section Manager, Policy and Document Support 
 Texas Department of Human Services 
    Proposed date of adoption: June 1, 1994 
 For further information, please call: (512) 450-3765 
         
         
  40 TAC sec.19.219 
 
  The amendment is proposed under the Human Resources Code, Title 2, Chapters 22 
and 32, which provides the department with the authority to administer public 
and medical assistance programs and under Texas Civil Statutes, Article 4413 
(502), sec.16, which provide the Health and Human Services Commission with the 
authority to administer federal medical assistance funds. The amendment 
implements the Human Resources Code, sec.sec.32. 001-32.042. 
 
 
  sec.19.219. Documentation for the Delegation of Long-Term Care Resident's 
Rights. 
 
  (a) The delegation of [the individual,] resident [and citizen] rights may 
occur in [any] three cases: 
 
  (1) when a competent individual chooses to allow another to act for him<nl>, 
such as with a Durable Power of Attorney<ol>; 
   
  (2) when the resident has been adjudicated to be incompetent by a court of law 
<nl>and a guardian has been appointed<ol>; or 
   
  (3) when the physician has determined that, for medical reasons, the resident 
is incapable of understanding and exercising such rights. <nl>The Health and 
Safety Code, Chapter 313, Consent to Medical Treatment, provides guidance under 
certain circumstances when a resident is comatose, incapacitated, or otherwise 
mentally or physically incapable of communication. 
     
  (b) In order to assure preservation of rights, the physician and the facility 
must [be aware of, must address, and must] document specific information 
concerning the incapability of the resident to understand and exercise his 
rights [even if the resident has been adjudicated incompetent and a guardian has 
been appointed or if there is an extant Durable Power of Attorney]. 
   
  [(c) To ensure that the protection of a resident adjudicated incompetent or 
determined to be incapable of exercising his/her rights and responsibilities for 
medical reasons, the administrator, the physician, and the resident care staff 
have specific responsibilities.] 
   
  <nl>(c)<ol>[(d)] <nl>Facility <ol>[Administrative] documentation <nl>must 
cover<ol>: 
 
  (1) the relationship of the resident to the person assuming his rights and 
responsibilities; 
   
  (2) <nl>the authority allowing <ol>[that] the responsible person <nl>to 
<ol>[can] act for the resident; 
   
  (3) <nl>resident assessments, care plans, and progress notes that address the 
resident's inability to exercise his rights and responsibilities; <ol>[the 
extent of a guardianship or Power of Attorney.] 
   
  <nl>(4) assurance that the resident who is mentally capable of understanding 
and exercising his rights, but physically incapable of doing so, receives 
interventions which facilitate the exercise of his rights. 
     
  <nl>(d)<ol>[(e)] Physician documentation <nl>must cover<ol>: 
 
  (1) <nl>resident's comatose state, incapacity, or other mental or physical 
inability to communicate <ol>[a statement that the resident is or is not capable 
of understanding and exercising his or her rights]; 
   
  (2)  <nl>proposed medical treatment or decision <ol>[specific causative and/or 
contributive medical diagnosis(es)]; 
   
  [(3) medical observations and test(s) which support the diagnosis; Examples: 
Alzheimer's Disease, Organic Brain Syndrome, confusion, short term memory loss, 
inability to attend to verbal input, disorientation as to time, place, or 
person, incoherent speech, inability to attend or converse or to answer 
questions (etc.);] 
   
  <nl>(3) <ol>[(4)] periodic assurance that there has been no essential change 
in the resident's mental function; 
   
  <nl>(4)<ol>[(5)] reevaluation whenever a significant change in resident status 
occurs or for orders that impact on resident rights (e.g. "No CPR"). 
     
  [(f) Facility staff documentation: 
 
  [(1) resident assessments, care plans and progress notes that address the 
resident's inability to exercise his rights and responsibilities and demonstrate 
that the facility encourages the resident to exercise his rights and 
responsibilities to his fullest capability; 
   
  [(2) assurance that the resident who is mentally capable of understanding and 
exercising his rights, but physically incapable of doing so, receives 
interventions which facilitate the exercise of his rights.] 
     
  [(g) The presence of such documentation does not guarantee the protection of a 
resident's rights and responsibilities, but forms the basis for compliance with 
the federal requirements for the delegation of a resident's rights. It is 
important because it increases the likelihood that the resident's care-givers 
and family will understand and be accountable for the resident's rights and 
responsibilities.] 
 
  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 March 30, 1994. 
 TRD-9438323 
  Nancy Murphy 
 Section Manager, Policy and Document Supporty 
 Texas Department of Human Services 
    Proposed date of adoption: June 1, 1994 
 For further information, please call: (512) 450-3765 
         
               Chapter 90. Nursing Facilities and Related Institutions 
  
  Subchapter C. Standards for Licensure 
 
  40 TAC sec.90.41 
 
  The Texas Department of Human Services (DHS) proposes an amendment to 
sec.90.41, concerning standards for nursing facilities, in its Nursing 
Facilities and Related Institutions rule chapter. The purpose of the amendment 
is to comply with Senate Bill 332, which provides a surrogate decision-making 
process for incompetent adults residing in nursing facilities. 
 Burton F. Raiford, commissioner, has determined that for the first five-year 
period the proposed amendment will be in effect there will be no fiscal 
implications for state or local government as a result of enforcing or 
administering the amendment. 
 Mr. Raiford also has determined that for each year of the first five years the 
amendment is in effect the public benefit anticipated as a result of enforcing 
the amendment will be enhancement of the rights of nursing facility residents. 
There will be no effect on small businesses. There is no anticipated economic 
cost to persons who are required to comply with the proposed amendment. 
 Questions about the content of the proposal may be directed to Maxcine 
Tomlinson at (512) 450-3169 in DHS's Institutional Policy Section. Comments on 
the proposal may be submitted to Nancy Murphy, Agency Liaison, Policy and 
Document Support-082, Texas Department of Human Services W-402, P.O. Box 149030, 
Austin, Texas 78714-9030, within 30 days of publication in the Texas Register. 
 The amendment is proposed under the Health and Safety Code, Chapter 242, which 
provides the department with the authority to license long-term care nursing 
facilities and under Texas Civil Statutes, Article 4413 (502), 72nd Legislature, 
which transferred all functions, programs, and activities related to long-term 
care licensing, certification, and surveys from the Texas Department of Health 
to the Texas Department of Human Services. The amendment implements the Health 
and Safety Code, sec.sec.242.001-242.186. 
 
 
  sec.90.41. Standards for Nursing Facilities. 
 
  (a) (No change.) 
   
  (b) Resident Rights. 
 
  (1)-(15) (No change.) 
   
  [(16)  Incompetency. If a resident has been adjudicated incompetent or has 
been found by the attending physician to be, for medical reasons, incapable of 
understanding these rights, the resident's rights are to be exercised as 
outlined in this subchapter. Documentation to support delegation of rights must 
be according to the provisions of paragraph (17) of this subsection.] 
   
  <nl>(16)<ol>[(17)] Documentation for the delegation of <nl>long term care 
resident's <ol>rights. 
 
  (A) The delegation of [the individual,] resident [and citizen] rights may 
occur in [any one of the following] three cases: 
 
  (i) when a competent individual chooses to allow another to act for him[/her] 
<nl>, such as with a Durable Power of Attorney <ol>; 
   
  (ii) when the resident has been adjudicated to be incompetent by a court of 
law <nl>and a guardian has been appointed <ol>; or 
   
  (iii)  when the physician has determined that, for medical reasons, the 
resident is incapable of understanding and exercising such rights. <nl>The 
Health and Safety Code, Chapter 313, Consent to Medical Treatment, provides 
guidance under certain circumstances when a resident is comatose, incapacitated, 
or otherwise mentally or physically incapable of communication. 
     
  (B) In order to assure preservation of rights, the physician and the facility 
must [be aware of, must address, and must] document specific information 
concerning the incapability of the resident to understand and exercise his[/her] 
rights [even if the resident has been fully adjudicated incompetent and a 
guardian has been appointed or if there is an extant durable power of attorney]. 
   
  [(C) To ensure that the protection of a resident adjudicated incompetent or 
determined to be incapable or exercising his/her rights and responsibilities for 
medical reasons, the administrator, the physician, and the resident care staff 
have specific responsibilities.] 
   
  <nl>(C)<ol>[(D)] <nl>Facility documentation must cover  <ol>[Administrative 
documentation must exist covering]: 
 
  (i) the relationship of the resident to the person assuming his rights and 
responsibilities; 
   
  (ii)<nl> the authority allowing <ol>[evidence that] the responsible person 
<nl>to <ol>[can] act for the resident; [and] 
   
  (iii)<nl> resident assessments, care plans, and progress notes that address 
the resident's inability to exercise his rights and responsibilities; and 
<ol>[the extent of a guardianship or power of attorney.] 
   
  <nl>(iv) <nl> assurance that the resident who is mentally capable of 
understanding and exercising his rights, but physically incapable of doing so, 
receives interventions which facilitate the exercise of his rights. 
     
  <nl>(D) <ol>[(E)] Physician documentation must <nl>cover <ol>[exist covering]: 
 
  (i)<nl> resident's comatose state, incapacity, or other mental or physical 
inability to communicate <ol>[a statement that the resident is or not capable of 
understanding and exercising his/her rights]; 
   
  (ii) <nl> proposed medical treatment or decision <ol>[specific causative 
and/or contributive medical diagnosis(es)]; 
   
  [(iii) medical observation and test(s) which support the diagnosis; (examples 
include, but are not limited to, Alzheimer's Disease, Organic Brain Syndrome, 
confusion, short-term memory loss, inability to attend to verbal input, 
disorientation as to time, place, or person, incoherent speech, inability to 
attend or converse or to answer questions);] 
   
  <nl>(iii)<ol>[(iv)] periodic assurance that there has been no essential change 
in the resident's mental function; 
   
  <nl>(iv)<ol>[(v)] reevaluation whenever a significant change in resident 
status occurs or for orders that impact on resident rights (e.g. "No CPR"). 
     
  [(F) Facility staff documentation must exist covering: 
 
  [(i) resident assessments, care plans and progress notes that address the 
resident's inability to exercise his/her rights and responsibilities and 
demonstrate that the facility encourages the resident to exercise his/her rights 
and responsibilities to his/her fullest capability; 
   
  [(ii) assurances that the resident who is mentally capable of understanding 
and exercising his/her rights, but physically incapable of doing so, receives 
interventions which facilitate the exercise of his/her rights.] 
     
  [(G) The presence of documentation in this paragraph does not guarantee the 
protection of a resident's rights and responsibilities, but forms the basis for 
compliance with the federal requirements for the delegation of a resident's 
rights. It is important because it increases the likelihood that the resident's 
care-givers and family will understand and be accountable for the resident's 
rights and responsibilities.] 
       
  (c)-(p)  (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 March 30, 1994. 
 TRD-9438325 
  Nancy Murphy 
 Section Manager, Policy and Document Support 
 Texas Department of Human Services 
    Proposed date of adoption: June 1, 1994 
 For further information, please call: (512) 450-3765