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 VII. State Office of Administrative Hearings Chapter 159. Rules of Procedure for Administrative License Suspension Hearings 278> 1 TAC sec.sec.159.1, 159.3, 159.5, 159.7, 159.9, 159.11, 159.13, 159.15, 159.17, 159.19, 159.21, 159.23, 159.25, 159.27, 159.29, 159.31, 159.33, 159.35, 159.37, 159.9, 159.41 The State Office of Administrative Hearings (SOAH) proposes new sec.sec.159.1, 159.3, 159.5, 159.7, 159.9, 159.11, 159.13, 159.15, 159.17, 159.19, 159.21, 159.23, 159.25, 159.27, 159.29, 159.31, 159.33, 159.35, 159.37, 159.39, and 159.41 relating to hearings in contested cases under the Administrative License Revocation (ALR) PROGRAM pursuant to Texas Civil Statutes, Articles 6687b-1, 6687b-2, and 6701l
    -5. The proposed chapter sets out procedures to be used in conducting hearings to determine whether a driver's license of a person should be administratively suspended or denied because the person had an alcohol concentration above a certain level or because the person refused to submit to a breath or blood test to determine alcohol concentration level. Steve Martin, Chief Administrative Law Judge, SOAH, has determined that for the first five year period this chapter is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the chapter. Mr. Martin also has determined that for each year of the first five years the chapter is in effect the public benefit anticipated as a result of enforcing the chapter will be greater uniformity and efficiency in license suspension hearings and decisions throughout the state. Speedier suspension of persons' licenses who have been proven to have driven after consuming unacceptable quantities of alcohol will also result. There will be no effect on small businesses. There are no anticipated economic costs to persons who are required to comply with the chapter as proposed. Comments on the proposal may be submitted to Ruth Casarez, ALR Director, State Office of Administrative Hearings, 300 West 15th, Suite 502, P.O. Box 13025, Austin, Texas, 78711-3025. A public meeting to receive comments on the proposed chapter will be scheduled for September 13, 1994, at 10:00 a.m. in SOAH Hearing Room 504A. The new sections are proposed pursuant to Texas Civil Statutes, Article 6687b- 1, sec.9 and Article 6701l
      -5, sec.4A, which provide that the State Office of Administrative Hearings and the Department of Public Safety shall adopt rules to administer the ALR statute. The following statutes are affected by this proposed chapter: Texas Civil Statutes, Articles 6701l
        -5, 6687b, 6687b-2, the Texas Government Code, Chapters 2001 and 2003 and Penal Code Chapter 49. sec.159.1. Scope. (a) This chapter applies to contested hearings concerning administrative suspension of driver's licenses before the State Office of Administrative Hearings. (b) These regulations shall be construed to ensure the fair and expeditious determination of every action. (c) These rules shall supplement the procedures required by law, but to the extent they conflict with the Administrative Procedure Act, the provisions of this chapter shall prevail. sec.159.3. Definitions. (a) In this chapter, the following terms have the meaning indicated: (1) Administrative Law Judge
          or Judge -An individual appointed by the Chief Administrative Law Judge of the State Office of Administrative Hearings under the Texas Government Code, Chapter 2003 and Texas Civil Statutes, Article 6687b-1 and Article 6701l
            -5. (2) ALR Suspension
              pursuant to Texas Civil Statutes, Article 6687b-1-An administrative driver's license suspension under the Administrative License Revocation (ALR) Program which is the subject of this chapter. (3) Alcohol concentration
                -As defined in Penal Code sec.49.01 (2) means: (A) the number of grams of alcohol per 100 milliliters of blood; (B) the number of grams of alcohol per 210 liters of breath; or (C) the number of grams of alcohol per 67 milliliters of urine. (4) Alcohol-related or drug-related enforcement contact -As defined in Texas Civil Statutes, Article 6687b-1, means a driver's license suspension, disqualification, or prohibition order under the laws of this state or another state following: (A) conviction of an offense prohibiting the operation of a motor vehicle while intoxicated, while under the influence of alcohol, or while under the influence of a controlled substance; (B) a refusal to submit to the taking of a blood or breath specimen following an arrest for an offense prohibiting the operation of a motor vehicle while intoxicated, while under the influence of alcohol, or while under the influence of a controlled substance; or (C) an analysis of a blood or breath specimen showing an alcohol concentration of a level 0.10 or higher as specified in the Penal Code, sec.49.01(2), following an arrest for an offense prohibiting the operation of a motor vehicle while intoxicated. (5) APA -The Texas Administrative Procedure Act, Texas Government Code, Chapter 2001. (6) Certified Breath Test Technical Supervisor -A person who has been certified by the Department to maintain and direct the operation of a breath test instrument used to analyze breath specimens of persons suspected of driving while intoxicated. (7) Commercial Driver's License,
                  -As defined in Texas Civil Statutes, Article 6687b-2, sec.3(3), means a license issued to an individual that authorizes the individual to drive a class of commercial motor vehicle. (8) Commercial Motor Vehicle,
                    -As defined in Texas Civil Statutes, Article 6687b-2, sec.3(6), means a motor vehicle or combination of motor vehicles used to transport passengers or property if the motor vehicle: (A) has a gross combination weight rating of 26,001 or more pounds inclusive of a towed unit with a gross vehicle weight rating of more than 10,000 pounds; (B) has a gross vehicle weight rating of 26, 001 or more pounds; (C) is designed to transport sixteen or more passengers, including the driver; or (D) is transporting hazardous materials and is required to be placarded in accordance with 49 Code of Federal Regulations (CFR) Part 172, Subpart F. (9) Contested Case -A proceeding brought under Texas Civil Statutes, Articles 6687b-1, sec.7, 6701l
                      -5, sec.2, or 6687b-2, sec.25 and sec.27. (10) Denial, -As provided in Texas Civil Statutes, Article 6687b, s4, means the non-issuance of a license or permit, and loss of the privilege to obtain a license or permit. (11) Department -The Department of Public Safety. (12) Disqualification, -As defined in Texas Civil Statutes, Article 6687b-2, s3(11), means a withdrawal of the privilege to drive a commercial motor vehicle and includes the suspension, cancellation, or revocation of that privilege as authorized by a state or federal law. (13) Driver -A person who drives or is in actual physical control of a motor vehicle. (14) Final Decision -The decision issued by a Judge who hears the contested case and who is authorized under Texas Civil Statutes, Articles 6687b-1, sec.7, 6701l
                        -5, sec.2 and 6687b-2, sec.25 and sec.27, to issue a final decisions in drivers' license suspension cases. (15) Intoxicated -Pursuant to Penal Code sec.49.01(2), means: (A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or (B) having an alcohol concentration of 0. 10 or more, provided however that under Texas Civil Statutes, Article 6687b-2, sec.27, having an alcohol concentration of 0.04 or greater is considered "intoxicated" and may result in disqualification of a driver from driving a commercial motor vehicle. (16) License -A driver's license or other license or permit to operate a motor vehicle issued under, or granted by, the laws of this state. (17) Licensee -Is one who holds a license as defined in subsection paragraph (16) of this subsection and whose legal rights, duties, statutory entitlements, or privileges may be affected by the outcome of a contested case under this chapter. (18) Nonresident -A person who is not a resident of this state. (19) Office -The State Office of Administrative Hearings. (20) Peace Officer -As used in Texas Civil Statutes, Article 6687b-1 and 6701l
                          -5, means a law enforcement officer employed by a state or local instrumentality or by the Department who stops and/or arrests a person suspected of driving while intoxicated. A peace officer may also be referred to as an arresting officer. (21) Public Place -Any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities and shops. (22) Test -Pursuant to Texas Civil Statutes, Article 6701l
                            -5, sec.1, means the following: (A) one or more specimens of a person's breath for the purpose of analysis to determine the alcohol concentration; or (B) one or more specimens of a person's blood for the purpose of analysis to determine the alcohol concentration or the presence in his body of a controlled substance, drug, dangerous drug or other substance. (b) The following terms have the meaning set out in s155.3 of this title (relating to Definitions). (1) Authorized Representative
                              -An attorney authorized to practice law in the State of Texas or, where permitted by applicable law, a person designated by a party to represent the party. (2) Chief Judge -The Chief Administrative Law Judge of the Office; (3) Law -State and federal statutes, regulations, and relevant case law. (4) Party -A person or agency named, or admitted to participate, in a case before the office. (5) Person -Any individual, representative, corporation or other entity, including any public or non-profit corporation, or any agency or instrumentality of federal, state, or local government. sec.159.5. Notice of Suspension. A notice of suspension that is served on a driver must meet the requirements set out in Texas Civil Statutes, Article 6687b-1, sec.4, and in the Department's ALR rules, 37 TAC Chapter 17. sec.159.7. Request for Hearing. (a) Request deadline. A request for hearing sent by a person or his authorized representative must be received by the Department within 15 days of the date the person received, or is presumed to have received, the notice of suspension or denial served by a peace officer. (b) Manner of Requesting Hearing. A hearing may be requested in writing or by telephone. (1) Written Requests. A person may request a hearing by mailing, delivering or sending by facsimile a written request to the Department at its headquarters in Austin, Texas. A request for hearing form supplied by the Department with the Notice of Suspension may be used to make the request. (2) Telephone Requests. A person may request a hearing by calling the Department at the number designated in the Notice of Suspension or Request for Hearing form. (c) Effect of Late Request. A request for hearing received after the 15 day deadline indicated in subsection (a) of this section shall be denied by the Department. sec.159.9. Scheduling of Hearings. (a) On receipt of a timely request for hearing, the Department shall schedule a hearing to be conducted by a Judge from the Office. A request for hearing stays the suspension of the license until a final decision is entered by a Judge. (b) The hearing normally will be held in the county of arrest. However, if the arrest was in a county with a population of fewer than 300,000, the hearing will be held no more than 75 miles from the county seat of the county of arrest. The Office or Department may change the hearing site upon agreement of all parties. (c) With the consent of the parties, the hearing may be conducted by telephone conference call. (d) The hearing shall be scheduled to occur no sooner than ten days after the date the notice of hearing was sent to the defendant unless the parties waive the ten day period. The hearing shall be scheduled to be held no later than 40 days after the defendant received or is presumed to have received the notice of suspension. (e) The hearing will be held within the 40 day period, unless a continuance is requested and granted as provided in the following section. sec.159.11. Continuances. (a) A continuance granted pursuant to this rule shall stay the suspension of the license until the date a Judge enters the final decision. (b) The Department shall continue a hearing once, if the Department receives a request for a continuance from the defendant no later than five days before the date of the scheduled hearing. The Department shall reschedule the hearing to a date no sooner than five days after the scheduled hearing date, unless the parties otherwise agree. (c) A Judge may grant the defendant an additional continuance, for a period not to exceed ten days, if the defendant establishes a bona fide medical condition that prevents him or his attorney from attending the hearing. (d) A Judge may grant the Department a continuance, if (1) no later than 48 hours before the date of a scheduled hearing, the Department requests a continuance because witnesses indicated in sec.159.15 or sec.159.17(c) of this title (relating to Request for Appearance of Department's witnesses; Request for Subpoenas) are not available; or (2) after a continuance as indicated in paragraph (1) of this subsection, the Department makes a showing of good cause in writing no later than 48 hours before the date of the scheduled hearing, and proves that witnesses indicated in sec.159. 15 or sec.159.17(c) of this title cannot appear at a scheduled hearing. (e) The granting of continuances pursuant to requests of the parties shall be in the sound discretion of the Judge, provided however, that the Judge shall attempt to expedite the hearings whenever possible. sec.159.13. Pre-Hearing Discovery.
                                The scope of pre-hearing discovery in these proceedings is as follows. (a) A defendant shall be allowed to review and inspect any non-privileged documents or records contained in the Department's file prior to the hearing. Any request for production of documents or records not in the Department's possession shall be denied by the Judge. Any document or record that has not been made available by the Department to the defendant pursuant to request shall not be allowed to be introduced into evidence by the Department. (b) If a request for maintenance records for the instrument used to test the defendant's specimen is made within seven working days prior to the hearing, the Department shall supply such records to the defendant at least three days prior to the hearing date. 159.15. Request for Appearance of Department's Witnesses. (a) If no later than five days before the date of a scheduled hearing, the defendant files with the Department and sends a copy to the Office a written (including facsimile transmissions) request for the presence of the following witnesses, the Department shall produce the witnesses without the need for a subpoena: (1) the certified breath test technician who administered the test and obtained the defendant's specimen to determine the level of alcohol concentration in the person's body; and/or (2) the certified breath test technical supervisor. (b) Upon receipt of a timely request for the appearance of such witness or witnesses, the Department shall ensure the witness(es) appear at the hearing. (c) If a timely request for such witness is made and the witness does not appear at a scheduled hearing, an affidavit of such witness shall not be admissible as provided in sec.159.23(c)(2) of this title (relating to Hearing). sec.159.17. Request for Subpoenas. (a) A request for the issuance of a subpoena to require attendance of witnesses or the production of documents shall be in writing and must be received by the Office at least five days prior to the scheduled hearing, with a copy sent to the Department, and shall contain: (1) the defendant's name and complete mailing address; (2) the defendant's driver's license number; (3) the date of the scheduled hearing, if known; (4) the name, address, and telephone number of the attorney, representing the defendant; (5) the name or description of the specific documents or records that are being requested; (6) the name and address of the requested witness; (7) a short statement of the expected testimony or evidence to be obtained through the witness and/or documents and its or their relevance to the proceeding; and (8) a statement of the number of miles that the witness will travel to and from the hearing from his home or office. (b) the requestor shall remit with his request for subpoena a $10 fee per witness per day, together with mileage fees ($0.10 per mile if witness is to travel more than 25 miles to the hearing from his office or residence). Checks or money orders (cash will not be accepted) should be made payable to the respective witnesses. If an amount adequate to cover the required fees is not remitted by the requestor, the Office will not issue the subpoenas requested. (c) If a subpoena is issued by the Office, the requestor shall be responsible for having it served in the same manner provided in Texas Rules Civil Procedure 178, except that a subpoena to a peace officer need not be served on the officer personally and may be served upon a responsible person at the officer's place of employment at least three days prior to the hearing date. (d) If a subpoena is issued to a witness, the Office will ensure that the tendered check or money order is delivered to the witness. (e) The decision to issue a subpoena shall be in the sound discretion of the Judge assigned to the case. The Judge shall refuse issuance of a subpoena if the testimony or evidence to be offered: (1) is immaterial or irrelevant; or (2) has not been shown to pertain to a genuine issue in the contested case. (f) If a request for subpoena is denied, the tendered witness fee(s) shall be returned to the requestor. (g) If a subpoena is requested and the Judge requires additional evidence or arguments to support its issuance, the Judge may arrange a telephone conference hearing in order to resolve the matter prior to the hearing. If a prehearing decision is not possible, the Judge may defer the decision on the request until the hearing is held and then may take testimony and receive evidence to determine if the request should be granted. The Judge may entertain an offer from the requestor or his attorney as to the nature of the witness' testimony. If the Judge decides to issue a subpoena for a witness, the Judge shall continue the hearing, and with the agreement of the parties, may reschedule the hearing at a location most convenient for a witness or schedule the witness to testify by telephone. The continuance shall stay the suspension. sec.159.19. Issues. The Judge, in determining the merits of the case, shall consider whether the Department proved the elements of the following issues by a preponderance of the evidence. (a) If hearing is under Texas Civil Statutes, Article 6687 27>b-1, sec.7 (test failed): (1) did reasonable suspicion to stop and/or probable cause to arrest the person exist; and (2) did the person have an alcohol concentration of 0.10 or greater as specified in the Penal Code sec.49.01(2), while driving or in actual physical control of a motor vehicle in a public place? (b) If the hearing is under Texas Civil Statutes, Article 6701l
                                  -5, sec.2, (refused test): (1) did reasonable suspicion to stop and/or probable cause to arrest the person exist; and (2) did probable cause exist to believe the person was driving or in actual physical control of a motor vehicle in a public place while intoxicated; and (3) was the person placed under arrest and offered an opportunity to give a specimen under Texas Civil Statutes, Article 6701l
                                    -5; and (4) did the person, after being advised of the consequences of refusal, refuse to give a specimen on request of the officer? (c) If the Judge finds the Department proved each of the required elements by preponderance of the evidence, the Judge will grant the Department's petition and order the license to be suspended or denied. If the Judge does not find the Department proved all of the necessary elements, the Judge will deny the petition and the Department shall not be authorized to suspend or deny the defendant's license. 159.21. Issues in Cases Involving Commercial Drivers' Licenses. The Judge, in determining the merits of the case, shall consider whether the Department proved the elements of the following issues by a preponderance of the evidence: (a) If the hearing is under Texas Civil Statutes, Article 6687b-2, sec.25, (test failed): (1) did reasonable suspicion to stop and/or probable cause to arrest the person exist; and (2) did the person have an alcohol concentration of 0.10 or greater as specified in the Penal Code sec.49.01(2); and (3) was the person driving or in actual physical control of a commercial motor vehicle in a public place? (b) If the hearing is under Texas Civil Statutes, Article 6687b-2, sec.27, (test failed or refused): (1) did probable cause exist to believe that the person was driving a commercial motor vehicle while having alcohol, a controlled substance, or drug in the person's system; and (2) was the person offered an opportunity to give a breath or blood specimen under the provisions of Texas Civil Statutes, Article 6687b-2, sec.27; and (3) did the person submit a specimen that disclosed an alcohol concentration of 0.04 or more, or did the person refuse to submit a specimen. (c) If the Judge finds the Department proved each required element by a preponderance of the evidence, the Judge will grant the petition and order the license to be suspended or denied or order that the defendant be disqualified from driving a commercial motor vehicle. If the Judge does not find that the Department proved all of the necessary elements, the Judge will deny the petition, and the Department shall not be authorized to suspend or deny the defendant's license, nor shall the defendant be disqualified from driving a commercial motor vehicle. 159.23. Hearing. (a) Procedures. (1) Hearings shall be conducted in accordance with the Texas Government Code, Chapter 2001, except that if there is a conflict between its provisions and the provisions of this chapter, this chapter shall govern. If a conflict exists between the provision os this chapter and Texas Civil Statutes, Articles 6687b- 1, 6701l
                                      -5, 6687b-2, or Penal Code Chapter 49, the provisions of those Articles or chapter shall govern. (2) Once the hearing has begun, the parties may be off the record only when the Judge permits. If a discussion off the record is pertinent, the Judge will summarize it for the record. (3) In the interest of justice and efficiency, the Judge may question witnesses. (4) The Judge shall limit testimony or any evidence which is irrelevant, immaterial, or unduly repetitious. (b) Evidence. Pursuant to the Texas Government Code, sec.2001.081, the rules of evidence as applied in a non-jury civil case in a district court of this state shall apply to a contested case. (c) Witnesses and affidavits (1) All witnesses shall testify under oath. (2) An affidavit, concerning the reliability of an instrument used to take or analyze a person's breath specimen to determine alcohol concentration and the validity of the results of the analysis of a certified breath test technical supervisor shall be admissible without the appearance of the breath test operator or the breath test technical supervisor. (3) An affidavit submitted under this section must contain statements on the reliability of the instrument, the analytical results and on compliance with state law in the administration of the breathalyzer program. (4) Notwithstanding paragraph (2) of this subsection, if the defendant timely requests the breath test operator's or the supervisor's appearance pursuant to sec.159.15, the affidavit(s) shall not be admissible without the appearance of the witness(es). (5) If an affidavit of a Department witness is admitted pursuant to paragraph (2) of this subsection, an affidavit of an expert witness contesting the reliability of the instrument or the results shall also be admissible. (6) A peace officer's probable cause affidavit shall be admissible as a public record, provided however, that the defendant shall have the right to subpoena the officer in accordance with sec.159.17 of this title (relating to Request for Subpoenas). If the defendant timely subpoenas the officer and the officer does not appear at the scheduled hearing, the affidavit shall not be admissible. (7) The Judge, on his own motion or on request of a party and with the consent of all parties, may allow the testimony of any witness to be taken by telephone, provided steps are taken as indicated in sec.159.25 of this title (relating to Telephone Hearings), to properly safeguard the right to cross examination and to record the testimony in its entirety. (d) Record of hearing: (1) Judge shall maintain an accurate and complete tape-recording of the oral proceedings from of the hearing; and (2) a case file which shall include the pleadings and evidence submitted by the parties and the Judge's decision. sec.159.25. Telephone Hearings. (a) Consent of the parties. The Judge may, with consent of the parties, conduct all or part of the hearing by telephone, if each participant in the hearing has an opportunity to participate in, and hear the entire proceeding. (b) Substantive and procedural rights. All substantive and procedural rights apply to telephone hearings, subject only to the limitations of the physical arrangement. (c) Documentary evidence. To be offered in a telephone hearing, documentary evidence must be received by the Office and available to participants later than two days prior to the scheduled hearing, unless otherwise agreed by the parties. (d) Default. For a telephone hearing, the following may be considered a failure to appear and grounds for default, if the conditions exist for more than ten minutes after the scheduled time for hearing: (1) failure to answer the telephone; (2) failure to free the telephone for a hearing; or (3) failure to be ready to proceed with the hearing as scheduled. sec.159.27. Failure to Attend Hearing and Default. (a) Upon proof that proper notice of a hearing was mailed, and that notwithstanding such notice, a party failed to appear, the Judge will proceed in that party's absence and enter a default order. (b) If within five business days of the default, the party files a written statement with the Office showing good cause for the failure to appear and for the failure to notify the Office in advance of the hearing, the Judge shall vacate the default order and the matter will be reset for hearing. sec.159.29. Hearing Disposition. (a) If the Judge finds that the Department proved the requisite facts as specified in sec.159.19 or sec.159. 21 of this title (relating to Issues; Issues in Cases Involving Commercial Drivers' Licenses) by a preponderance of the evidence, the Judge shall grant the Department's petition. (b) If the Judge finds the Department did not prove the requisite facts by a preponderance of the evidence, the Judge shall deny the Department's petition and the Department shall not be authorized to take adverse action against the defendant. (c) If the Department's petition is granted, the Judge shall not probate a license suspension, denial or disqualification, nor shall a Judge grant a defendant an occupational license under this chapter. sec.159.31. Decision of the Administrative Law Judge. (a) Upon conclusion of the hearing, the Judge shall issue a written decision which shall contain findings of facts and conclusions of law. (b) The decision of the Judge shall be final and appealable without the need for filing a motion for rehearing. (c) The decision shall advise the parties of their right to appeal. sec.159.33. Effective Date of Suspensions. (a) If a hearing is not timely requested, the effective date of suspension is the fortieth day after the notice of suspension is served or deemed served on the person. (b) If after a hearing the Judge grants the Department's petition, the Department's right to suspend or deny the license is effective upon the Judge's signing of the administrative decision and order. The defendant shall surrender the driver's license at issue upon request of a representative of the Department at that time. (c) If a default order is issued, the Department's right to suspend or deny defendant's driving privilege is effective on the sixth bsiness day after the default order is signed. (d) Unless the suspension is stayed on appeal pursuant to Texas Civil Statutes, Article 6687b-1, sec.7(h), the suspension is effective when the Judge signs the administrative decision and order. sec.159.35. Proceedings Open to the Public. (a) Unless otherwise prohibited by federal or state law, all proceedings before the Office are open to the public. (b) The Judge may: (1) remove persons whose conduct impedes the orderly progress of the hearing; and (2) restrict attendance because of the physical limitations of the hearing facility. sec.159.37. Appeal of Judge's Decision. (a) Pursuant to Texas Civil Statutes, Article 6687b-1, sec.7(g) or Article 6701l
                                        -5, sec.4, a person whose driver's license has been suspended after a hearing under this section may appeal the suspension by filing, within 30 days after the date the Judge's final determination is issued, a petition in a county court at law in the county where the person was arrested or, if there is no county court at law in the county, in the county court of the county. (b) If the county judge is not a licensed attorney, the county judge, on his own or on motion of either party, shall transfer the case to a district court for the county. (c) Except as provided in sec.159.39 of this title (relating to Stay of Suspension), filing an appeal petition does not stay a suspension. (d) On appeal, review is on the record as certified by the Office with no additional testimony, except as provided by subsection (h) of this section. Review shall be based on the substantial evidence rule. (e) A person who appeals shall send by certified mail a copy of the person's petition, certified by the clerk of the court in which the petition is filed, to the Department at its headquarters in Austin and to the Office at its headquarters in Austin. (f) A person who appeals a suspension may obtain a transcript of the administrative hearing by sending a written request to the Office within ten days of filing the appeal and paying the applicable fees. The fees shall not exceed the actual cost of preparing or copying the transcript, and upon payment thereof, the Office shall promptly furnish the reviewing court and both parties a certified copy of the transcript. (g) The Department's right to appeal is limited to issues of law. (h) On appeal, any party may apply to the court for leave to present additional evidence, and the court, if satisfied that additional information is material and that there were good reasons for the failure to present it in the hearing before a Judge, may order that the additional evidence be taken before a Judge on conditions determined by the court. (i) Judge may modify a prior determination as to whether the person had an alcohol concentration of a level specified in the Penal Code, sec.49.01(2), by reason of the additional evidence. The Judge shall file the evidence and any modifications. (j) A remand under this section does not stay the suspension of a driver's license. sec.159.39. Stay of Suspension. (a) Pursuant to Texas Civil Statutes, Article 6687b-1, sec.7(h), the filing of an appeal petition stays a suspension if the person's license has not been suspended as a result of any alcohol-related or drug-related enforcement contact, as defined in sec.159.3 of this title (relating to Definitions), in the five years immediately preceding the date of the person's arrest, and the person has not been convicted under Texas Civil Statutes, Article 6701l
                                          -1, or the Texas Penal Code, sec.19. 05(a)(2), or successor statutes, in the ten years immediately preceding the date of the person's arrest, regardless of whether the prior alcohol-related or drug-related contact or conviction occurred prior to January 1, 1995. (b) A stay shall only be effective for a period of 90 days from the filing of an appeal petition, and on the expiration of that period, the suspension previously ordered shall be imposed. No extension of the stay or additional stay order may be granted by the Department or the court. sec.159.41. Other Office Rules of Procedure. The following Office rules of procedure found at 1 TAC sec.155 and s157 shall apply in contested cases under this chapter: (1) sec.155.17.-Recusal and disqualification of Judges; (2) sec.155.19.-Substitution of Judges; (3) sec.155.21.-Appearance of Parties at Hearings; Representation; (4) sec.155.31.-Stipulations; (5) sec.155.41.-Order of Proceedings; (6) sec.157.1.-Temporary Administrative Law Judge; and (7) sec.161.1.-Charges for Copies of Public Records 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 July 29, 1994. TRD-9445894 Shelia A. Bailey Deputy Chief Administrative Law Judge State Office of Administrative Hearings Proposed date of adoption: September 15, 1994 For further information, please call: (512) 475-4993 Part XII. Advisory Commission on State Emergency Communications Chapter 251. Regional Plans 1 TAC sec.251.6 The Advisory Commission on State Emergency Communications (ACSEC) proposes new sec.251.6 in accordance with the Texas Health and Safety Code, Chapter 771, establishes guidelines for strategic plans, amendments and equalization surcharge allocation for 9-1-1 emergency service fees and equalization surcharges to support the planning, development, and provision of 9-1-1 service throughout the State of Texas. Mary Boyd, executive director for ACSEC, has determined that for each year of the first five years the section is in effect, there will be no fiscal impact on state or local government as a result of enforcing or administering the section. Ms. Boyd has determined that there will be no fiscal effect on local employment or the local economy. Ms. Boyd 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 administration and enforcement of the section will be the more efficient administrative regulation of strategic plans, amendments and equalization surcharge allocation. There is no anticipated economic cost to persons required to comply with the rule as proposed. Comments on the proposal must be submitted in writing within 30 days after publication of the proposal in the Texas Register to Mary Boyd, Executive Director, ACSEC, 1101 Capitol of Texas Highway South, Suite B-100, Austin, Texas 78746. The new section is proposed pursuant to the Health and Safety Code, Chapter 771, and the Texas Administrative Code, Part XII, Chapter 251, Regional Plans and Standards. The proposed rule affects the Health and Safety Code, Chapter 771, and the Texas Administrative Code, Part XII, Chapter 251, Regional Plans and Standards. sec.251.6. Guidelines for Strategic Plans, Amendments and Equalization Surcharge Allocation. (a) Policy and Procedures. As authorized by Chapter 771 of the Texas Health and Safety Code, ACSEC may impose 9-1-1 emergency service fees and equalization surcharges to support the planning, development, and provision of 9-1-1 service throughout the State of Texas. In accordance with Chapter 771, sec.771.055, such service implementation shall be consistent with regional plans developed by regional planning commissions. These regional plans must meet standards established by the ACSEC and "include a description of how money allocated to the region under this chapter is to be allocated in the region." Section 771.057 addresses amendments to regional plans and indicates that such amendments may be adopted in accordance with procedure established by the ACSEC. (b) Strategic Plan Levels. Regional plans developed in accordance with Chapter 771, along with the commensurate allocation of the above described funds shall reflect implementation consistent with the following three major strategic plan levels (in order of priority): (1) Level I: 9-1-1 service generally associated with automatic number identification (ANI), to include the following components and associated costs: (A) Central office modification; (B) 9-1-1 trunks; (C) Alternative networks; (D) Public Safety Answering Point (PSAP) equipment room preparation; (E) PSAP/ANI displays, etc.; (F) Telephone equipment; (G) Language line; (H) Maintenance and repair of customer premises equipment (CPE); and (I) Capital recovery of the above equipment. (2) Level II: 9-1-1 service generally associated with selective routing (SR) and automatic location identification (ALI), to include the following components and associated costs: (A) Master Street Assignment Guide (MSAG); (B) SR/AL/PSAP room preparation; (C) Data links; (D) ALI displays, etc.; (E) Maintenance and repair of CPE; (F) Addressing; and (G) Capital recovery of the above equipment. (3) Level III: Other 9-1-1 equipment, services and enhancements to same, to include, but not limited to the following components and associated costs: (A) Network improvements like additional trunk diversity, other redundancy, and cellular access; (B) Other enhancements like emergency power, recorders, pagers, detectors/diverters, external ringers; (C) Maintenance and repair of the equipment mentioned in this section; and (D) Other. (c) Strategic Plans. Regional plans developed in compliance with Chapter 771 shall include a strategic plan that projects regional 9-1-1 service costs, and service fee and other non-equalization surcharge revenues at least three years into the future, beginning September 1, 1994. Within the context of sec.771.056(d), the ACSEC shall consider any revenue insufficiencies to represent need for equalization surcharge funding support. (1) ACSEC may establish the format of strategic plans for the sake of identifying overall statewide requirements in its implementation. (2) Regional strategic plans shall be reviewed and amended, as necessary, six months following initial adoption and approval by the ACSEC, or no later than March 1, 1995. Following that initial review, said plans shall be reviewed and amended, as appropriate, on an annual basis beginning September 1, 1995. (3) Each annual review and update of regional strategic plans shall reflect a reconciliation of all actual implementation costs by component incurred for the year involved against projected strategic plan costs and revenues. (4) Strategic plans shall be consistent with the three major implementation priority levels identified in this section and all applicable ACSEC policies and rules. (5) A regional planning commission shall submit financial and performance reports to ACSEC on the 15th of each month. The financial report shall identify actual implementation costs by county, strategic plan priority level and component. The performance report shall reflect the progress of implementing the region's strategic plan. (d) Amendments to Regional Plans. A regional planning commission may make changes to its approved regional plan to accommodate unanticipated requirements and/or to prevent disruption of its implementation schedule, contingent upon the following: (1) The changes do not require additional equalization surcharge funds; (2) The annual effect of such changes of strategic plan components within strategic plan levels do not exceed five percent 5.0% of the total projected cost of each strategic plan level described in this section; (3) The changes are consistent with all ACSEC policies and procedures; and (4) The changes do not add substantially to the cost or deviate from the original basic design of the 9-1-1 system. (e) Changes made to the regional plan must be reported in writing to the ACSEC within 15 working days of making the change. The documentation required for changes will be an amended budget, narrative, and related worksheets. (f) Emergency situations requiring amendments to regional plans that require additional equalization surcharge funds may be presented to the ACSEC for review and consideration contingent upon the availability of such funds. (g) Allocation of Equalization Surcharge Funds. (1) Consistent with this rule, the ACSEC shall allocate, by agreement, equalization surcharge funds to regional planning commissions and emergency communication districts based upon statewide strategic plan and district needs coupled with the projected availability of such funds over a three year period. (2) Equalization surcharge funds shall be allocated first to eligible recipients requiring such funds for administrative budgetary purposes, followed by Level 1, II, and III activities in that order. (3) If sufficient equalization surcharge funds are not available to fund all regional planning commission strategic plan and district requests, funds shall be allocated to provide a consistent level of 9-1-1 service throughout the State of Texas in accordance with the priority levels described. Such allocation may include but are not limited to one or more of the following: (A) In reverse order of priority, reducing the number of priority level components supported with equalization surcharge funds; (B) Requesting that appropriate regional strategic plans to be adjusted to allow for more implementation time; and/or (C) In order of priority, proportionally allocating available funds among requesting agencies. (h) Emergency situations requiring amendments to regional plans that require additional equalization surcharge funds may be presented to the ACSEC for review and consideration contingent upon the availability of such funds. (i) Consistent with this rule, the ACSEC shall allocate, by agreement, equalization surcharge funds to regional planning commissions and emergency communication districts based upon statewide strategic plan and district needs coupled with the projected availability of such funds over a three year period. (j) Equalization surcharge funds shall be allocated first to eligible recipients requiring such funds for administrative budgetary purposes, followed by Level I, II and III activities in that order. (k) If sufficient equalization surcharge funds are not available to fund all regional planning commission strategic plan and district requests, funds shall be allocated to provide a consistent level of 9-1-1 service throughout the State of Texas in accordance with the priority levels described. Such allocation may include but are not limited to one or more of the following: (1) In reverse order of priority, reducing the number of priority level components supported with equalization surcharge funds; (2) Requesting that appropriate regional strategic plans be adjusted to allow for more implementation time; and/or (3) In order of priority, proportionally allocating available funds among requesting agencies. (l) The ACSEC may elect to hold a balance of equalization surcharge funds in reserve for emergencies and other contingencies. (m) Funding Parameters. The Commission will look favorably on plan amendments for ancillary equipment that will improve the effectiveness and reliability of 9-1-1 call delivery systems. This will include the following when the equipment is for 9-1-1 call delivery: surge protection devices, uninterrupted power source (UPS), power backup, voice recorders, paging systems for 9-1-1 call delivery, security devices, and other back-up communication services. (n) Paging Systems. Funding for paging systems may be approved when such stems are the most effective means of 9-1-1 call delivery and they do not replace other paging or radio alerting systems. Funding for paging will be limited to systems, where alternative systems or the systems now in use cause significant delay in 9-1-1 call delivery and where existing radio systems can be modified to accommodate paging. Funding for pagers (receivers) will be limited to only those necessary to alert the core responders within an organization (e.g., in a 15- member volunteer emergency medical group, only the on-call ambulance driver and one or two attendants would be furnished pagers). (o) Voice Recording Equipment. Voice Loggers may be approved when the primary use of the equipment is in support of the 9-1-1 call-taking and call-delivery function. Extra capacity on such systems may be used for other public safety functions (such as dispatch), however, 9-1-1 funding will not be authorized for systems whose capacity clearly exceed actual or anticipated 9-1-1 requirements. Shared funding of larger systems to accommodate both a 9-1-1 PSAP and a PSAP operating agency's other needs will be considered. Other considerations include: (1) The Commission will normally fund voice recording capability in a PSAP to record the conversation on each answering position used to answer emergency calls on a regular basis (this means one recording channel per answering position instead of one channel per incoming line). (2) The Commission will also fund recording capability to record the transfer of an emergency call from the PSAP first answering the call to the agency that is responsible for providing the required emergency services. This recording capability will be limited to the minimum amount required to record the transfer of the caller and relaying of information to the service provider. (3) The Commission will fund the purchase of voice recorders, as justified, to record 9-1-1 call delivery. Call volumes requiring recording in excess of 90 minutes per day will normally be required to justify larger systems. (4) The funding of built-in cassette recorders to transfer information from a another recorder will be approved only upon specific justification of need. (5) Funding for search capability for recorders will be limited to the ability to locate an event by date and time. (6) The Commission will not normally fund the purchase of both voice logging recorders and instant playback recorders in the same location. (7) When the operator of a 9-1-1 PSAP and the providers of emergency services desire to use the same recording equipment funded by Regional Plan, the following guidelines will apply to determine the amount to be funded by the Commission. (A) When the minimum size of recorder that can be purchased to serve the PSAP provides more channels than are needed by the PSAP to record the delivery of 9- 1-1 calls, the other agency may use the extra channels and all funding will be provided by the Commission. (B) When the PSAP requires a given size of recording equipment, and the other agency requires additional channels, the Commission will fund the size of recording equipment needed to record the delivery of 9-1-1 calls, and the other agency will fund all additional equipment. (C) When the recording requirements of the other agency requires additional features or capabilities than would be required by the PSAP alone, the Commission will fund the equivalent amount of the system needed to serve the PSAP alone. For instance, if the PSAP could use a cassette recorder system to record the delivery of 9-1-1 calls, but another agency needs to record a radio channel that requires the capacity of a reel-to-reel recorder, the Commission will fund the equivalent cost of the cassette system. (8) To assist the Commission in reviewing and approving requests for funding for voice recording devices for 9-1-1 call delivery, requests for funding should include a worksheet, provided by the Commission, for each PSAP location. (9) In reviewing requests for recording systems, the Commission will award funding, when justified, for the actual costs of basic recording systems not to exceed $6,000 on 4-channel or equivalent systems, and not to exceed $10, 000 on up to 10-channel or equivalent recording systems. Requests for any other recording systems will require separate approval by the Commission. (10) The Commission will consider funding of recording capabilities greater than those suggested by the guidelines when sufficient justification is provided as part of a Regional Plan. (A) Emergency Power Equipment. Each PSAP location should be evaluated to determine if an emergency power system is required to insure the ability to answer 9-1-1 calls. A PSAP that receives a relatively small number of emergency calls per day may be able to provide acceptable service without the availability of ANI or ALI for short periods of time. If the same PSAP is located in a location that is subject to prolonged power outages, it may need emergency power sources. (B) Where conditions exist that indicate a need for emergency power systems to support 9-1-1 call delivery, UPS should be considered as the emergency power system. Emergency generators (backup power) should be approved only in locations with a history, or potential, for extended interruptions of commercial power supplies. Generally, 9-1-1 funding will not be used to provide both emergency power and UPS. At least 75% of the capacity of any UPS system funded should directly support an existing (or planned) 9-1-1 system. (C) Each request for UPS must include a worksheet showing the calculations used to determine the system size and batteries required. This worksheet must identify all equipment to be powered and the operating voltage and current drain of each piece of equipment. The request for UPS must identify the load capacity of the system requested and the length of time the batteries will operate the PSAP 9-1-1 equipment. (D) The length of time that an UPS battery will be required to provide emergency power is a major factor in determining the cost of the UPS system. Each request for UPS must provide information justifying the size of the batteries requested. Information concerning the history of power failures at the PSAP location and the average time to restore power should be obtained from the local power company. (E) If the history of power failures, or the expected restoral time, is more than can be economically justified for UPS batteries, backup power can be considered. Any request for an emergency generator in addition to an UPS shall include a comparison of the cost of an UPS system with sufficient batteries to the cost of the combination of UPS and backup power. (F) There may be circumstances that justify the installation of an emergency generator (backup power) in addition to an UPS as the primary system for a PSAP location. In these cases, the request for emergency power must include an explanation and comparison of the relevant costs. (G) When the operator of a 9-1-1 PSAP and the providers of emergency services desire to share the emergency power system funded by the Commission, the following guidelines will apply to determine the amount to be funded by the Commission. (i) When the minimum size of emergency power system that can be purchased to serve the PSAP provides more capacity than is needed by the PSAP, the other agency may use the extra capacity and all funding will be provided by the Commission. (ii) When the PSAP requires a given size of emergency power system, and the other agency requires additional capacity, the Commission will fund the size of emergency power equipment needed to supply the PSAP alone and the other agency will fund all additional capacity. (iii) Funding may be approved for surge protection devices when they are used for protection of 9-1-1 specific electronic equipment. (H) Regional plans developed in compliance with Chapter 771 shall include a strategic plan that projects regional 9-1-1 service costs, and service fee and other non-equalization surcharge revenues at least three years into the future, beginning September 1, 1994. Within the context of 771.056(d) , the ACSEC shall consider any revenue insufficiencies to represent need for equalization surcharge funding support. (i) ACSEC may establish the format of strategic plans for the sake of identifying overall statewide requirements in its implementation. (ii) Regional strategic plans shall be reviewed and amended, as necessary, six months following initial adoption and approval by the ACSEC, or no later than March 1, 1995. Following that initial review, said plans shall be reviewed and amended, as appropriate, on an annual basis beginning September 1, 1995. (iii) Each annual review and update of regional strategic plans shall reflect a reconciliation of all actual implementation costs by component incurred for the year involved against projected strategic plan costs and revenues. (iv) Strategic plans shall be consistent with the three major implementation priority levels identified above and all applicable ACSEC policies and rules. (v) A regional planning commission shall submit financial and performance reports to ACSEC on the 15th of each month. The financial report shall identify actual implementation costs by county, strategic plan priority level and component. The performance report shall reflect the progress of implementing the region's strategic plan. (p) Definitions. The following words and terms when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) 9-1-1 Call Delivery-Delivery of a 9-1-1 call to the agency responsible for providing the emergency service required. (2) 9-1-1 Funds-Funds assessed and disbursed in accordance with the Texas Health and Safety Code, Chapter 771. (3) Emergency Communications District.-A public agency or group of public agencies acting jointly that provided 9-1-1 service before September 1, 1987, or that had voted or contracted before that date to provide that service; or a district created under Health and Safety Code, Chapter 772, Subchapter B, C, or D, Chapter 772. (4) Paging Systems.-A radio system capable of transmitting tone, digital, and/or voice signals to small receiving devices designed to be carried by an individual. (5) Power Backup.-Power provided by a generator in the event regular utility services are interrupted. (6) Recorders.-Devices that capture and retain sound, including, but not limited to the following: (A) Voice Loggers.-A device that records sound on a permanent source for later review. (B) Instant Recall Recorder.-A device that records and temporarily stores calls for immediate review. (7) Regional Plan.- Each regional planning commission shall develop and plan for the establishment and operation of 9-1-1 service throughout the region that the regional planning commission serves. The service must meet the standards established by the ACSEC. (8) Regional Planning Commission.-A commission established under Local Government Code, Chapter 391, also referred to as a regional council of governments (COG), or simply, a regional council. (9) Security Devices.-Devices whose use is specific to the protection of 9-1-1 systems from intentional damage. (10) Strategic Plan.-As part of a regional plan, a document identifying 9-1-1 equipment and related activity, by strategic plan component, required to support planned levels of 9-1-1 service within a defined area of the state. The strategic plan normally covers at least a three year planning period, and specifically projects 9-1-1 implementation costs and revenues associated with the above including equalization surcharge requirements. (A) Strategic Plan Component.-Within a 9-1-1 implementation priority level, a category of 9-1-1 activity and/or equipment generally associated with 9-1-1 implementation cost. (B) Strategic Plan Level.-An ACSEC established statewide implementation priority generally associated with a level of 9-1-1 service-e. g., Automatic Number Identification ANI. (11) Surge Protection Devices.-Devices designed to protect sensitive electronic equipment by preventing excessive electrical power from reaching and damaging such equipment. (12) Uninterrupted Power Source UPS.-Equipment that is designed to provide a constant power source for electronic systems. Capable of operating independently, for a designated period of time, should public or emergency electrical power sources fail. 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 July 28, 1994. TRD-9445758 Mary A. Boyd Executive Director Advisory Commission on State Emergency Communications Earliest possible date of adoption: September 5, 1994 For further information, please call: (512) 327-1911 TITLE 4. AGRICULTURE Part I. Texas Department of Agriculture Chapter 1. General Procedures Subchapter A. General Rules of Practice 4 TAC sec.sec.1.28-1.30 (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 Agriculture or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas Department of Agriculture (the department) proposes the repeals of sec.sec.1.28-1.30 concerning the availability and cost of public records, the suspension of rules by the department, and the effect of the invalidity of a rule. Section 1.28 is being repealed and replaced with new sec.sec.1.40-1.45 concerning procedures and fees for inspection and copying of public records. Section 1.29 and sec.1.30 are being repealed, replaced and renumbered as sec.1. 49 and sec.1.50, respectively. The text of new sec.1.49 and sec.1.50 will be unchanged from repealed sec.1.29 and sec.1.30. The two sections are being renumbered in order to continue their placement as the last two sections in Chapter 1, Subchapter A, which contains the department's general rules of practice. Dolores Alvarado Hibbs, chief administrative law judge, 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. Hibbs 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 clearer, more complete rules. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the repeals as proposed. Comments on the proposal may be submitted to Dolores Alvarado Hibbs, Texas Department of Agriculture, P.O. Box 12847, Austin, Texas 78711, and must be received no later than 30 days from the date of publication of the proposal in the Texas Register. The repeals are proposed under the Texas Government Code, sec.sec.552.230, 552. 261, and 552.263, which provide the Texas Department of Agriculture with the authority to promulgate reasonable rules of procedure under which public records may be inspected, Acts 1993, 73rd Legislature, Chapter 428, which requires the agency to prescribe rules specifying the charges the agency will make for copies of public records, and the Texas Government Code, sec.2001.004, which provides the department with the authority to adopt general rules of practice. The Texas Government Code, Chapter 552, is affected by the proposed repeals. sec.1.28. Availability and Cost of Records. sec.1.29. Suspension of Rules. sec.1.30. Effect of Invalidity of a Rule. 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 July 28, 1994. TRD-9445811 Dolores Alvarado Hibbs Chief Administrative Law Judge Texas Department of Agriculture Earliest possible date of adoption: September 5, 1994 For further information, please call: (512) 463-7583 4 TAC sec.sec.1.40-1.45, 1.49, 1.50 The Texas Department of Agriculture (the department) proposes new sec.sec.1. 40-1.45 concerning procedures and fees for the inspection and copying of public records, new sec.1.49 concerning the effect of the invalidity of a rule, and new s1.50 concerning the suspension of rules by the department. Acts 1993, 73rd Legislature, Chapter 428, sec.5 requires each state agency to adopt rules specifying the charges the agency will make for copies of public records. New sec.sec.1.40-1.45 are proposed to meet this legislative requirement. New sec.1. 49 and sec.1.50, except for their renumbering, are identical to current sec.1.29 and sec.1.30, which the department proposes to repeal in a separate submission. For the most part, proposed sec.sec.1.40-1.45 follow the guidelines suggested by the General Services Commission in 1 TAC sec.sec.111.61-111.70. Three differences from the General Services Commission rules are noted here. First, sec.1.40 provides that public information that requires more than 30 minutes to locate or prepare for release is not considered readily available information. Second, sec.1.44(a) requires prepayment of all charges associated with a public records request prior to release of the records, unless the charges total $10 or less, or the department waives the prepayment requirement. Third, sec.1.44(b) provides that charges will be waived for a records request that would result in a total charge of $1.00 or less. New sec.1.49 and sec.1.50, currently found at s1.29 and sec.1.30, are being renumbered to allow for the addition of new sec.sec.1.40-1.45. The renumbering continues the department's preference for placing the two rules concerning the effect of the invalidity of a rule, and the suspension of the operation of the department's rules in their logical place at the end of Chapter 1, Subchapter A, which contains the department's general rules of practice. Dolores Alvarado Hibbs, chief administrative law judge, has determined that for the first five-year period the new 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. Hibbs also has determined that for each year of the first five years the new sections are in effect the public benefit anticipated as a result of enforcing the section will be enhanced familiarity with the procedures and costs associated with accessing public information maintained by the department. There will be no effect on small or large 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 Dolores Alvarado Hibbs, Texas Department of Agriculture, P.O. Box 12847, Austin, Texas 78711, and must be received no later than 30 days from the date of publication of the proposal in the Texas Register. The new sections are proposed under the Texas Government Code, sec.sec.552.230, 552.261, and 552.263, which provide the Texas Department of Agriculture with the authority to promulgate reasonable rules of procedure under which public records may be inspected, Acts 1993, 73rd Legislature, Chapter 428, which requires the agency to prescribe rules specifying the charges the agency will make for copies of public records, and the Texas Government Code, sec.2001.004, which provides the department with the authority to adopt general rules of practice. The Texas Government Code, Chapter 552, is affected by the proposed new sections. sec.1.40. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Nonstandard-size copy -A copy of public information that is made available to a requestor in any format other than a standard-size paper copy. Microfiche, microfilm, diskettes, magnetic tapes, CD-ROM, and nonstandard-size paper copies are examples of nonstandard-size copies. Open Records Act-Texas Government Code, Chapter 552, sec.sec.552.001-552.353. Readily available information-Public information that already exists in printed form, or information that is stored electronically and is ready to be printed or copied without requiring any programming, or information that already exists on microfiche or microfilm. Information that requires more than 30 minutes to locate or prepare for release is not readily available information. Records custodian-A department employee designated to respond to requests for public information. Each division within the department has its own records custodian. Standard-size copy -A printed impression on one side of a piece of paper that measures up to 8 1/2 by 14 inches. Each side of a piece of paper on which an impression is made is counted as a single copy. A piece of paper that is printed on both sides is counted as two copies. sec.1.41. General Procedures for Request of Public Information. (a) All public records and public information, as defined in the Open Records Act, will be made available for inspection or duplication upon request. Records requested may be edited to exclude material exempted from the Open Records Act or deemed confidential by statute. (b) Requests for routine, general, readily available information may be made by telephone. All other requests must be in written form and reasonably describe the records requested. For recordkeeping purposes, every requestor, including those requesting information by telephone, must provide to the department basic identifying information, such as the requestor's name and address. (c) Requestors will be notified of the approximate charges associated with each record request by one of the department's records custodians prior to filling the request. (d) Arrangements may be made to inspect public records in the offices of the department during normal business hours by contacting the appropriate records custodian. If a requestor is uncertain which of the department's divisions maintains the requested information, an inspection request may be directed to the Legal Affairs Division. A date and hour for inspection of the requested records will be set within a reasonable period. sec.1.42. Charges for Providing Copies of Public Information. (a) Copy charge. (1) Standard-size copy.The charge for standard-size paper copies reproduced by means of an office machine copier or a computer printer is $ .10 per page. (2) Nonstandard-size copy. The charges for nonstandard copies are: (A) diskette-$1.00; (B) computer magnetic tape-$10; (C) VHS video cassette-$2.50; (D) audio cassette-$1.00; and (E) paper copy-$ .50. (3) The charges in this subsection are to cover the cost of materials onto which information is copied and do not reflect any additional charges that may be associated with a particular request. (b) Personnel charge. (1) The charge for personnel costs incurred in processing a request for public information is $15 an hour for personnel in salary groups 20 and below, and $20 an hour for personnel in salary groups 21 and above. (2) No personnel charge will be billed in connection with complying with requests that are for 50 or fewer pages of readily available information. (3) No personnel charge will be billed for time spent by an attorney, legal assistant, or any other person who reviews the requested information: (A) to determine whether the department will raise any exceptions to disclosure of the requested information under the Open Records Act, Subchapter C; or (B) to research or prepare a request for a ruling by the Attorney General's Office pursuant to the Open Records Act, Subchapter G. (c) Overhead charge. (1) In response to a request either for information that is not readily available, or is readily available and in excess of 50 pages, the department will include a charge for overhead, in addition to the personnel charge. The overhead charge covers costs such as depreciation of capital assets, rent, maintenance and repair, utilities, and administrative overhead. (2) The overhead charge will be 20% of any charge made to cover personnel costs associated with a particular request. For example, if one hour of personnel time is expended to respond to a particular request, the personnel charge will be $15 and the overhead charge will be $3.00. (3) No charge for overhead will be billed for requests for copies of 50 or fewer pages of readily available information. (d) Microfiche and microfilm. (1) For information that the department stores on microfiche or microfilm, calculation of the copying charge depends upon the format chosen by the requestor. If a requestor prefers a copy of the fiche or film itself, and the information can be released in its entirety, the department will make available a copy of the fiche or film and charge the requestor for the department's actual cost of having the copy made. (2) If the requestor prefers paper copies of information stored on microfilm or microfiche, the charge is $ .10 per page for standard-size paper plus a charge to cover any personnel time spent in making the paper copies and associated overhead charges. (e) Remote document retrieval charge. Some of the department's documents are stored in remote storage locations, such as the Texas State Library or a commercial warehouse. To the extent that retrieval of documents from off-site storage to comply with a request results in an expense to the department, the cost of retrieval will be charged to the requestor. In such cases, no additional charge will be included for personnel costs associated with time spent locating the documents. (f) Computer resource charge. (1) The computer resource charge is a utilization charge for computers based on the amortized cost of acquisition, lease, operation, and maintenance of computer resources. The following charges are based on the type of computer utilized by the department to facilitate completion of a particular records request: (A)
                                            mainframe-$17.50 per minute; (B) midrange-$3.00 per minute; (C) client/server-$1.00 per minute; and (D) PC or local area network-$ .50 per minute. (2) The charge made to recover computer utilization cost is the actual time the computer takes to execute a particular program times the applicable rate. The charge is not meant to apply to programming or printing time. It is solely to recover costs associated with the actual time required by the computer to execute a program. This timeframe will frequently be a matter of seconds. (g) Miscellaneous supplies. The actual cost of miscellaneous supplies, such as labels, boxes, and other supplies used to produce and package the requested information will be added to the total charge for public information. (h) Postal and shipping charges. The department will add any related postal or shipping expenses that are necessary to transmit requested information to the requestor. (i) Fax charge. The charge for a fax transmitted locally is $ .10 per page. For a long distance fax transmission within the sender's area code, the charge is $ .50 per page. For a long distance fax transmission outside the sender's area code, the charge is $1.00 per page. (j) Sales tax. No sales tax will be charged. sec.1.43. Access to Information When Copies Are Not Requested. (a) Access to readily available information. When no copies are requested, the department will not charge an individual for inspection of readily available information. (b) Access to other than readily available information. For public information that is not readily available, the department will charge a requestor a personnel charge to offset the cost of preparing and making available for inspection the information. The charge may reflect, for instance, retrieval of information from a database, or deletion of confidential information from otherwise public records. sec.1.44. Prepayments and Waivers of Public Information Charges. (a) The department requires prepayment of all charges prior to release of public records, unless the charges total $10 or less. The requestor will be contacted by a department representative once the cost of filling the request is determined. Each component of the total charge will be indicated on the department's billing form in order to provide full disclosure to the requestor. The prepayment requirement may be waived by the department in appropriate circumstances. (b) The department will waive the charge for any public information request that, without the waiver, would result in a total charge of $1.00 or less. (c) The department will furnish public records without charge or at a reduced charge if the department determines that a waiver or reduction in fees is in the public interest. sec.1.45. Texas Department of Agriculture Schedule of Charges. The following is a summary of the department's charges for copies of public information. (1) Standard-size paper copy-$ .10 per page. (2) Non-standardd-size copy: (A) diskette-$1.00 each; (B) magnetic tape-$10 each; (C) VHS video cassette-$2.50 each; (D) audio cassette-$1.00 each; (E) paper copy-$ .50 each; and (F) other-actual cost. (3) Personnel charge: (A) salary groups 20 or below-$15 per hour; and (B) salary groups 21 or above-$20 per hour. (4) Overhead charge-20% of personnel charge. (5) Microfiche or microfilm charge: (A) paper copy-$ .10 per page; and (B) fiche or film copy-actual cost. (6) Remote document retrieval charge-actual cost. (7) Computer resource charge: (A) mainframe-$17.50 per minute; (B) midsize-$3.00 per minute; (C) client/server-$1. 00 per minute; and (D) PC or LAN-$ .50 per minute. (8) Miscellaneous supplies-actual cost. (9) Postage and shipping charge-actual cost. (10) Fax charge: (A) local-$ . 10 per page; (B) long distance (same area code)-$ .50 per page; and (C) long distance (different area code)-$1.00 per page. (11) Other costs-actual cost. 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 July 28, 1994. TRD-9445810 Dolores Alvarado Hibbs Chief Administrative Law Judge Texas Department of Agriculture Earliest possible date of adoption: September 5, 1994 For further information, please call: (512) 463-7583 Chapter 5. Quarantines 4 TAC sec.5.178 The Texas Department of Agriculture (the department) proposes an amendment to sec.5.178 concerning establishment of administrative committees governing pink bollworm quarantine zones. The proposed amendment is made in order to establish methods for nominating and appointing producer representation to serve on Pink Bollworm Pest Management Committees. Rick Smathers, coordinator, cotton programs, 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. Smathers 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 producer input into the enforcement of regulations governing establishment of cotton planting and destruction deadlines. 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 Rick Smathers, Texas Department of Agriculture, P.O. Box 12847, Austin, Texas 78711, and 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 the Texas Agriculture Code, sec.74.054, which provides the Texas Department of Agriculture with the authority to adopt rules governing pink bollworm quarantine zones. The code section that will be affected by the proposal is Texas Agriculture Code, Chapter 74, Subchapter B. sec.5.178. Quarantine Zones. (a) An administrative committee shall govern each quarantine zone. The committee shall consist of one authorized representative of the department and cotton producers representing each county within the zone. Producer representation of counties within the zone shall be based on acreage as follows: (1) 1 to 25,000 acres = 1 representative; (2) 25,001 to 50,000 acres = 2 representatives; (3) 50,001 to 75,000 acres = 3 representatives; (4) 75,001 to 100,000 acres = 4 representatives; (5) 101,001 to 125,000 acres = 5 representatives; (6) 125,001 to 150,000 acres = 6 representatives; (7) 150,001 to 175,000 acres = 7 representatives; (8) 175,001 to 200,000 acres = 8 representatives; (9) 200,001 to 225,000 acres = 9 representatives; and (10) 225,001 to 250,000 acres = 10 representatives
                                              [one cotton producer from each of the counties in the zone in which cotton production occupies less than 50,000 acres, and two cotton producers from each of the counties in the zone in which cotton production exceeds 50,000 acres]. (b) The commissioner shall appoint the producer members of the administrative committee for a term of two years expiring on December 31 of the second year, selecting the appointees from a pool of nominees submitted by certified cotton producer organizations as defined in the federal Cotton Research and Promotion Act, sec.14 (7 United States Code sec.sec.2101-2118). In cases where no certified cotton producer organization is established, nominees may be submitted in the following priority order for each individual county by either an County Extension Agriculture Committee; an established agriculture business that is representative of the entire county; or any other established business or non- profit organization as designated by the department. (c) Nominees must be an active producer and/or resident from the county they will represent. A minimum of three nominees must be provided for each producer position on each administrative committee. Some counties may not be represented on the committee if cotton acreage is determined by the county's nominating body to be negligible or if county producers elect not to be represented. (d)
                                                [(c)] The administrative committee of a quarantine zone organized under this section shall: (1) make recommendations to the department regarding control of the pink bollworm in the zone, including recommendations or regulations needed to control and prevent pink bollworm infestation; (2) make recommendations on any legislative changes needed to increase effectiveness of current regulations; and (3) give advice and counsel to the department regarding effective enforcement of this subchapter within the zone. (e)
                                                  [(d)] Quarantine zones shall be as follows: (1) Zone 1. Includes the following counties: Atascosa, Bexar, DeWitt, Frio, Goliad, Karnes, Kinney, Live Oak, Maverick, Medina, Uvalde, Val Verde, Wilson, and Zavala. (2) Zone 2. Includes the following counties: Chambers, Colorado, Fayette, Galveston, Gonzales, Harris, Jefferson, Lavaca, Liberty, Orange, Waller, and Washington. (3) Zone 3. Includes the following counties: Bastrop, Caldwell, Comal, Guadalupe, Hays, Lee, Travis, and Williamson. (4) Zone 4. Includes the following counties: Anderson, Angelina, Bell, Bosque, Brazos, Burleson, Burnet, Coryell, Cherokee, Ellis, Falls, Freestone, Grimes, Hamilton, Hardin, Henderson, Hill, Hood, Houston, Jasper, Johnson, Lampasas, Leon, Limestone, McLennan, Madison, Milam, Montgomery, Nacogdoches, Navarro, Newton, Panola, Polk, Robertson, Rusk, Sabine, San Augustine, San Jacinto, Shelby, Smith, Somervell, Trinity, Tyler, and Walker. (5) Zone 5. Includes the following counties: Pecos, Ward, and Reeves. (6) Zone 6. Includes the following whole and partial counties. (A) Includes the following whole county: El Paso County. (B) Hudspeth County. That portion of Hudspeth County bounded by Interstate Highway 10 on the north, the El Paso County line on the west, the Rio Grande River on the south and a line from old Fort Whitman, north along Highway 34 to Interstate 10 on the east. 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 July 28, 1994. TRD-9445741 Dolores Alvarado Hibbs Chief Administrative Law Judge Texas Department of Agriculture Earliest possible date of adoption: September 5, 1994 For further information, please call: (512) 463-7583 Chapter 17. Marketing and Development Division Texas-Israel Exchange Program 4 TAC sec.sec.17.100-17.104 The Texas Department of Agriculture (the department) proposes new sec.sec.17. 100-17.104, concerning the Texas-Israel exchange program. The new sections are proposed as necessary for the implementation and administration of the Texas- Israel Exchange (TIE) Fund. V. A. Stephens, coordinator, special issues, has determined that for the first five-year period the rules are in effect there will be fiscal implications for state government as a result of enforcing or administering the rules. The Texas Department of Agriculture cannot quantify the exact cost to the state which will be associated with the administration of the Texas-Israel exchange program, however, the department believes that these costs will be minimal as the program duties will be absorbed by current department staff. The Texas Department of Agriculture anticipates that the costs of the proposed rules will be more than offset by the public benefit gained from the agricultural research and development and mutual cooperation arising out of the program. Miss Stephens also has determined that for each year of the first five years the rules are in effect the public benefit anticipated as a result of enacting the rules will be substantial contributions to the development of agriculture, trade and business in both Texas and Israel through the support of projects of mutual benefit to both areas. There will be no effect on small or large businesses. There is no anticipated economic cost to persons who are required to comply with the rules as proposed. Comments on the proposal may be submitted to V. A. Stephens, Coordinator, Texas-Israel Exchange Program, Texas Department of Agriculture, P.O. Box 12847, Austin, Texas 78711. Comments must be received no later than 30 days from the date of publication of the proposal in the Texas Register. The new sections are proposed under the Texas Agriculture Code, sec.45.004, which provides the department with the authority to establish rules necessary for the implementation and administration of the Texas-Israel Exchange Program; and Texas Government Code, sec.2001.004, which requires that the department adopt rules of practice stating the nature and requirements of all available formal and informal procedures. The Texas Agriculture Code, Chapter 45, is affected by the proposed new rules. sec.17.100. Definitions. The following words and terms, when used in this chapter, shall have the following meanings unless the context clearly states otherwise. TIE-The Texas-Israel Exchange Fund, as set forth in the Texas Agriculture Code, Chapter 45. Commissioner-The commissioner of agriculture of the state of Texas. Board-The Texas-Israel Exchange Fund board, as established by the Texas Agriculture Code, Chapter 45. Department-The Texas Department of Agriculture. sec.17.101. Purpose. The TIE program is created to provide matching grant funds on joint agricultural research and development projects benefiting, and the development of trade and business relations between, Texas and Israel. sec.17.102. Administration. The TIE program will be administered by a coordinator appointed by the Commissioner, who shall work in cooperation with a counterpart designated by Israel to support projects of mutual benefit to Texas and Israel. The Board will ratify the Commissioner's choice of projects to receive TIE funding, after consultation with corresponding designees of the Israeli government. sec.17.103. Selection Criteria. (a) Projects will be selected on a competitive basis. (b) Preference will be given to projects that are unique in nature and avoid duplication with other projects being funded by the Texas or Israeli governments. (c) Projects should demonstrate an innovative use of funding or resources. (d) Projects in the areas of research, trade development, improving business relations, information exchange and mutual assistance are all eligible. Recommended topics for research and development include water conservation, water management and use, soil management and conservation, innovative sources of energy for agricultural production, intensive crop production, environmental aspects of agricultural technology, and agricultural engineering and processing. The commercial exchange of agricultural products or processes may also be supported by TIE. sec.17.104. Application procedure. (a) The department shall issue an annual request for proposals, to be published in the Texas Register
                                                    during each fiscal year for which Texas and Israel have dedicated an equal amount of funds for implementing the TIE program. (b) All projects must be completed by the end of that fiscal year. (c) Public or private entities which can demonstrate their commitment to the program's objectives are eligible to apply. (d) Proposed projects must comply with the purpose and objectives set forth in the Texas Agriculture Code, Chapter 45, and these rules. (e) The application shall include project manager information, other participating organizations' cash or in-kind contributions, project budget broken down by task, project summary, project need and background, project goals and timeline, plan for dissemination of information gained from the project, and agricultural and economic impact. 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 July 28, 1994. TRD-9445809 Dolores Alvarado Hibbs Chief Administrative Law Judge Texas Department of Agriculture Earliest possible date of adoption: September 5, 1994 For further information, please call: (512) 463-7583 TITLE 22. EXAMINING BOARDS Part XI. Board of Nurse Examiners Chapter 217. Licensure and Practice 22 TAC sec.217.8 The Board of Nurse Examiners proposes an amendment to sec.217.8, concerning Inactive Status. This rule is being proposed to allow registered nurses to request their current license be placed on inactive status any time prior to the expiration date on the license. The Nursing Practice Act, Article 4515(b), allows for registered nurses to to request that they be placed on an inactive status list. Previously, a change to the inactive status list would only be allowed at the time of actual renewal. Louise Waddill, PhD, RN, executive director, has determined that the proposed amendment will have no significant fiscal impact on state or local government as a result of enforcing or administering the rule. Dr. Waddill 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 not be applicable, as the public is relatively unaffected by this particular section. There will be no effect on small businesses. There are no anticipated economic costs to persons who are required to comply with the rule as proposed. Comments on the proposed amendment may be submitted to Louise Waddill, PhD, RN, executive director, Board of Nurse Examiners, Box 140466; Austin, Texas 78714, (512) 835-8650. The amendment is 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. Texas Civil Statutes, Article 4526(b) is affected by this proposed amendment. sec.217.8. Inactive Status. (a) A registered nurse who elects to change from active licensure status to inactive status must submit a written request to the board prior to the expiration of his/her license
                                                      [during the 60 day licensure renewal period]. (b)-(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 July 27, 1994. TRD-9445726 Louise Waddill, Ph.D., R.N. Executive Director Board of Nurse Examiners Proposed date of adoption: September 13, 1994 For further information, please call: (512) 835-8675 TITLE 25. HEALTH SERVICES Part II. Texas Department of Mental Health and Mental Retardation Chapter 401. System Administration Subchapter A. Advisory Committees 25 TAC sec.401.26 (Editor's Note: The Texas Department of Mental Health and Mental Retardation proposes for permanent adoption the new section it adopts on an emergency basis in this issue. The text of the new section is in the Emergency Rules section of this issue.) The Texas Department of Mental Health and Mental Retardation (TDMHMR) proposes new sec.401.26, concerning advisory committees. The new section is proposed contemporaneously with its emergency adoption in this issue of the Texas Register . In keeping with provisions of Senate Bill 383 (73rd Legislature), the proposed new section recognizes a newly created advisory committee established to assist the Texas Mental Health and Mental Retardation Board in its search for a new TXMHMR commissioner. The new section outlines the purpose, tasks, and duration of the committee, which is subject to all other requirements of Chapter 401, Subchapter A, concerning advisory committees. Leilani Rose, director, Office of Financial Services, has determined that there will be no significant fiscal implications for state or local government as a result of administering the section as proposed. Local economic impact is anticipated to be insignificant. Dennis Jones, commissioner, has determined that for the first five-year period the rule as proposed is in effect the anticipated public benefit of enforcing or administering the rule will be the creation of an advisory committee which will assist the TXMHMR Board in its search for a new TXMHMR commissioner who will best guide the agency in the effective and efficient provision of services to persons with mental illness and mental retardation. There will be no effect on small businesses. There is no anticipated cost to persons required to comply with the proposed new section. 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 section is proposed under Texas Health and Safety Code, sec.532.015, which provides the Texas Board of Mental Health and Mental Retardation with rulemaking powers. The rule affects Texas Civil Statutes, Article 6252-33. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on July 28, 1994. TRD-9445844 Ann Utley Chairman, Texas MHMR Board Texas Department of Mental Health and Mental Retardation Earliest possible date of adoption: September 5, 1994 For further information, please call: (512) 206-4516 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part XII. Texas Board of Occupational Therapy Examiners Chapter 366. Application for License 40 TAC sec.366.1 The Texas Board of Occupational Therapy Examiners proposes new sec.366.1, concerning Application for License. Sherry Lee, executive director, Executive Council of Physical Therapy and Occupational Therapy Examiners, 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 the rule. Ms. Lee also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be the increase of consumer protection and the clarification of licensing requirements. There will be no effect on small businesses. There are no anticipated economic costs to persons who are required to comply with the rule as proposed. Comments on the proposed rule may be submitted to Josephine Sanchez, OT Coordinator, Texas Board of Occupational Therapy Examiners, 3001 South Lamar Boulevard, Suite 101, Austin, Texas 78704. The new section is proposed under the Occupational Therapy Practice Act, Texas Civil Statutes Annotated, Article 8851, which provide the Texas Board of Occupational Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering the Act. The rule affects Texas Civil Statute, Article 8851. sec.366.1. Application for License. (a) Individuals wishing to obtain an application for licensure can phone or write the board. A request for application must indicate which type of license is being requested (refer to sec.365.1 of this title (relating to Types of Licenses)). (b) Upon receipt of a request for application, the applicant will be sent a complete application packet containing an instruction sheet, application forms, a copy of the Act and rules, and any other information required by the board. (c) An individual who makes application to the board in excess of 12 months after passing the AOTCB certification examination may need to meet additional continuing education requirements during the first year of licensure. (d) A license may be issued upon receipt of a complete application (refer to sec.362.1 of this title, (relating to Definitions)) and payment of the prescribed fee (refer to s368.1 of this title, (relating to Fees)) and upon meeting applicable requirements (refer to sec.364.1 of this title, (relating to Requirements for Licensure)). (e) Licensees are responsible for knowledge of Texas Civil Statutes, Article 8851, the Occupational Therapy Practice Act, and the Texas Board of Occupational Therapy Examiners' rules. 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 July 29, 1994. TRD-9445869 Sherry Lee Executive Director Texas Board of Occupational Therapy Examiners Earliest possible date of adoption: September 5, 1994. For further information, please call: (512) 443-8202 Chapter 370. License Renewal 40 TAC sec.370.1 The Texas Board of Occupational Therapy Examiners proposes new sec.370.1, setting requirements for annual renewal of licenses and prohibiting renewal for failure to repay Texas Guaranteed Student Loan. Sherry Lee, executive director, Executive Council of Physical Therapy and Occupational Therapy Examiners, 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 the rule. Ms. Lee also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be the increase of consumer protection and the clarification of licensing requirements. There will be no effect on small businesses. There are no anticipated economic costs to persons who are required to comply with the rule as proposed. Comments on the proposed rule may be submitted to Josephine Sanchez, OT Coordinator, Texas Board of Occupational Therapy Examiners, 3001 S. Lamar Boulevard, Suite 101, Austin, Texas 78704. The new section is proposed under the Occupational Therapy Practice Act, Texas Civil Statutes, Article 8851, which provide Texas Board of Occupational Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act. The rule affects Texas Civil Statutes, Article 8851. sec.370.1. License Renewal. (a) Renewal of an unexpired license shall be in accordance with the Act, sec.24, and renewal of an expired license shall be in accordance with the Act, sec.25. (b) Each licensee is responsible for license renewal before the expiration date and shall not be exempt from paying applicable late fees. Failure to receive a renewal notice from the board prior to the expiration date of a license will not exempt a licensee from renewing his or her license on time. (c) The board considers a Complete Renewal (refer to sec.362.1 of this title (relating to Definitions)) on-time if it is postmarked not later than the expiration date of the license. (d) A licensee who fails to renew his or her license by the expiration date and continues to work as an OTR or a COTA may be subject to disciplinary action. (e) A license shall not be renewed if a licensee has defaulted on a Guaranteed Student Loan from the Texas Guaranteed Student Loan Corporation (TGSLC). Upon notice from TGSLC that a repayment agreement has been established, the license shall be renewed. 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 July 29, 1994. TRD-9445871 Sherry Lee Executive Director Texas Board of Occupational Therapy Examiners Earliest possible date of adoption: September 5, 1994 For further information, please call: (512) 443-8202 Chapter 372. Referral 40 TAC sec.372.1 The Texas Board of Occupational Therapy Examiners proposes new sec.372.1, requiring a referral from a physician before commencement of direct treatment; and other conditions of referral. Sherry Lee, executive director, Executive Council of Physical Therapy and Occupational Therapy Examiners, 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 the rule. Ms. Lee also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be the increase of consumer protection and the clarification of licensing requirements. There will be no effect on small businesses. There are no anticipated economic costs to persons who are required to comply with the rule as proposed. Comments on the proposed rule may be submitted to Josephine Sanchez, OT Coordinator, Texas Board of Occupational Therapy Examiners, 3001 South Lamar Boulevard, Suite 101, Austin, Texas 78704. The new section is proposed under the Occupational Therapy Practice Act, Texas Civil Statutes, Article 8851, which provide the Texas Board of Occupational Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering the Act. The rule affects Texas Civil Statutes, Article 8851. sec.372.1. Referral. (a) Consultation, monitored services, and evaluation for need of services may be provided without a referral from a physician. (b) Occupational therapy for non-medical conditions ((refer to sec.362.1 of this title (relating to Definitions))] does not require a physician referral. However, a physician referral must be requested at any time during the evaluation or treatment process when necessary to insure the safety and welfare of the consumer. (c) The provision of direct treatment by an occupational therapist for medical conditions requires a referral from a physician licensed by the Texas State Board of Medical Examiners to practice in the state of Texas. A referral may be an oral or written order to initiate services. If an oral referral is received, it must be followed in a timely manner by a written order signed by the physician requesting the services. 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 July 29, 1994. TRD-9445870 Sherry Lee Executive Director Texas Board of Occupational Therapy Examiners Earliest possible date of adoption: September 5, 1994 For further information, please call: (512) 443-8202 Chapter 374. Disciplinary Actions 40 TAC sec.374.1, sec.374.2 The Texas Board of Occupational Therapy Examiners proposes new sec.374.1 and sec.374.2, providing the types of disciplinary actions that may be imposed by the board; defining some examples of practicing occupational therapy in a manner detrimental to the public health and welfare and setting levels of disciplinary action for licensees; and setting procedures for processing of complaints concerning the practice of occupational therapy by a licensee. Sherry Lee, executive director, Executive Council of Physical Therapy and Occupational Therapy Examiners, 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 the rule. Ms. Lee also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be the increase of consumer protection and the clarification of licensing requirements. There will be no effect on small businesses. There are no anticipated economic costs to persons who are required to comply with the rule as proposed. Comments on the proposed rule may be submitted to Josephine Sanchez, OT Coordinator, Texas Board of Occupational Therapy Examiners, 3001 South Lamar Boulevard, Suite 101, Austin, Texas 78704. The new section is proposed under the Occupational Therapy Practice Act, Texas Civil Statutes, Article 8851 which provide Texas Board of Occupational Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act. The rule affects Texas Civil Statutes, Article 8851. sec.374.1. Disciplinary Actions. (a) The board, in accordance with the Administrative Procedure Act, may deny, revoke, suspend, or refuse to renew a license, or may reprimand or impose probationary conditions, if the licensee or applicant for licensure has been found in violation of the rules or the Act. The board will adhere to procedures for such action as stated in the Act, sec.30 and sec.31. (b) the Act, sec.30(b)(6), states "practiced occupational therapy in a manner detrimental to the public health and welfare;" which is defined but not limited to the following: (1) impersonating another person holding an occupational therapy license or allowing another person to use his or her license; (2) using occupational therapy techniques or modalities for purposes not consistent with the development of occupational therapy as a profession, as a science, or as a means for promoting the public health and welfare; (3) failing to report or otherwise concealing information related to violations of the Act, or rules and regulations pursuant to the Act, which could therefore result in harm to the public health and welfare or damage the reputation of the profession; (4) intentionally making or filing a false or misleading report, or failing to file a report when it is required by law or third person, or intentionally obstructing or attempting to obstruct another person from filing such a report; (5) intentionally harassing, abusing, or intimidating a patient either physically or verbally; (6) appearing to refer or referring a patient to a third person for the purpose of receiving a fee or other consideration from the third person; (7) recommending or prescribing therapeutic devices or modalities sold by a third person for the purpose or with the result of receiving a fee or other consideration from the third person; (8) breaching the confidentiality of the patient/therapist relationship; (9) failing to obtain informed consent prior to engaging in scientific research involving patients, or otherwise violating ethical principles of research as defined by the AOTA Principles of Occupational Therapy Ethics, sec.VIII or other occupational therapy standards; (10) practicing occupational therapy after the expiration of a temporary, provisional, or regular license; (11) violation of sec.373.1 of this title (relating to Supervision); (12) advertising in a manner which is false, misleading, or deceptive; (13) failing to register an occupational therapy facility which is not exempt or failing to renew the registration of an occupational therapy facility which is not exempt; or (14) practicing in an unregistered occupational therapy facility which is not exempt. (c) The board recognizes four levels of disciplinary action for its licensees: (1) Level I: Letter of Reprimand or Other Appropriate Disciplinary Action (including but not limited to community service hours)-The first step in the disciplinary action process. (2) Level II: Probation-The licensee may continue to practice while on probation. The board orders the probationary status which may include but is not limited to restrictions on practice and continued monitoring by the board during the specified time period. (3) Level III: Suspension-A specified period of time that the licensee may not practice as an occupational therapist or occupational therapy assistant. Upon the successful completion of the suspension period, the license is automatically reinstated. (4) Level IV: Revocation-A specified period of time that the licensee may not practice as an occupational therapist or occupational therapy assistant. Upon successful completion of the revocation period, the licensee may petition the board for reinstatement (forms provided by the board). Submitting to re- examination by the AOTCB may be required. (d) Licensees and facilities which provide occupational therapy services are responsible for knowledge of Texas Civil Statutes, Article 8851 (the Occupational Therapy Practice Act), and the Texas Board of Occupational Therapy Examiners' rules. (e) Final disciplinary actions taken by the board will be routinely published as to the names and offenses of the licensees or facilities. sec.374.2. Complaints. (a) The Act, sec.5(d), authorizes the board to investigate complaints. (b) Any individual wishing to file a complaint as to any matter covered by these rules may do so by writing or contacting the Executive Council (a complaint form is available upon request). (c) The Executive Director and the Investigation Committee will take appropriate action to investigate the complaint or take other appropriate action. (d) The Investigation Committee, at its discretion, may call an informal conference to review the matter. (e) The board shall keep an information file about each complaint that is filed with the board relating to a licensee or an entity regulated by the board. If a written complaint is filed with the board relating to a licensee or entity regulated by the board, the board shall notify the parties to the complaint of the status of the complaint unless the notice would jeopardize an investigation. The board shall notify the parties to the complaint at least as frequently as quarterly until the final disposition of the complaint in accordance with the Act, sec.5B. (f) The board follows the Administrative Procedure Act (APA), Texas Government Code, sec.2001. et seq for resolution of complaints as a contested case. A copy of the APA procedures may be obtained from the board. (g) Contested case hearings are subject to procedures established by the State Office of Administrative Hearings. 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 July 29, 1994. TRD-9445868 Sherry Lee Executive Director Texas Board of Occupational Therapy Examiners Earliest possible date of adoption: September 5, 1994. For further information, please call: (512) 443-8202