ADOPTED RULES An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 16. ECONOMIC REGULATION Part I. Railroad Commission of Texas Chapter 5. Transportation Division Subchapter AA. Rail Safety 16 TAC sec.5.613 The Railroad Commission of Texas adopts an amendment to sec.5.613, concerning railroad safety requirements, without changes to the proposed text as published in the June 21, 1994, issue of the Texas Register (19 TexReg 4800). The amendment updates references to Title 49 of the Code of Federal Regulations and applicable state law so that the appropriate, current federal and state safety regulations will become the minimum railroad safety requirements of the Railroad Commission of Texas governing all railroads operating within the State of Texas. No comments were received regarding adoption of the amendment. The amendment is adopted pursuant to Texas Civil Statutes, Article 6448a, which authorizes the commission to adopt regulations to ensure railroad safety. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on August 3, 1994. TRD-9446083 Mary Ross McDonald Assistant Director, Legal Division, Gas Utilities/LP Gas Railroad Commission of Texas Effective date: August 24, 1994 Proposal publication date: June 21, 1994 For further information, please call: (512) 463-7095 16 TAC sec.5.619 The Railroad Commission of Texas adopts the repeal of sec.5.619, concerning walkways requirements, without changes to the proposed text as published in the June 21, 1994, issue of the Texas Register (19 TexReg 4801). The section is repealed pursuant to Missouri Pacific Railroad Company vs. Railroad Commission of Texas, 948 F2d 179 (5th Cir. 1991), which held that state regulation of walkways is preempted by federal law. No comments were received regarding adoption of the repeal. The section is repealed pursuant to Texas Civil Statutes, Article 6448a, which authorizes the commission to adopt regulations to ensure railroad safety. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on August 3, 1994. TRD-9446085 Mary Ross McDonald Assistant Director, Legal Division, Gas Utilities/LP Gas Railroad Commission of Texas Effective date: August 24, 1994 Proposal publication date: June 21, 1994 For further information, please call: (512) 463-7095 16 TAC sec.5.622 The Railroad Commission of Texas adopts the repeal of sec.5.622, concerning requirement of cabooses on trains operating in Texas, without changes to the proposed text published in the June 21, 1994, issue of the Texas Register (19 TexReg 4801). The section is repealed pursuant to Missouri Pacific Railroad Company vs. Railroad Commission of Texas, 850 F2d 264 (5th Cir. 1988), which held that the state is preempted from requiring cabooses on trains in Texas. No comments were received regarding adoption of the repeal. The section is repealed pursuant to Texas Civil Statutes, Article 6448a, which authorizes the commission to adopt regulations to ensure railroad safety. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on August 3, 1994. TRD-9446086 Mary Ross McDonald Assistant Director, Legal Division, Gas Utilities/LP Gas Railroad Commission of Texas Effective date: August 24, 1994 Proposal publication date: June 21, 1994 For further information, please call: (512) 463-7095 16 TAC sec.5.623 The Railroad Commission of Texas adopts the repeal of sec.5.623, concerning hazardous materials regulations adopted by reference, without changes to the proposed text as published in the June 21, 1994, issue of the Texas Register (19 TexReg 4801). The section is repealed because the federal regulations are being adopted by reference in an amendment to sec.5.613, relating to railroad safety requirements. No comments were received regarding adoption of the repeal. The section is repealed pursuant to Texas Civil Statutes, Article 6448a, which authorizes the commission to adopt regulations to ensure railroad safety. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on August 3, 1994. TRD-9446087 Mary Ross McDonald Assistant Director, Legal Division, Gas Utilities/LP Gas Railroad Commission of Texas Effective date: August 24, 1994 Proposal publication date: June 21, 1994 For further information, please call: (512) 463-7095 TITLE 30. ENVIRONMENTAL QUALITY Part I. Texas Natural Resource Conservation Commission Chapter 114. Control of Air Pollution From Motor Vehicles 30 TAC sec.114.23 The Texas Natural Resource Conservation Commission (TNRCC) adopts an amendment to sec.114.23, concerning Transportation Control Measures (TCMs), without changes to the proposed text as published in the June 17, 1994, issue of the Texas Register (19 TexReg 4727). The new section is adopted as a revision to the State Implementation Plan (SIP) for the control of ozone in the Houston/Galveston, Dallas/Fort Worth, Beaumont/Port Arthur, and El Paso nonattainment areas. This adoption is necessary under the 1990 Federal Clean Air Act Amendments to ensure the effective and complete implementation of TCMs included in SIP revisions. The rule language as it appeared in the November 23, 1993, issue of the Texas Register (18 TexReg 8700) inadvertently omitted two subsections. This amendment was proposed to correct the oversight. The subsections that are being replaced are subsections (f) and (g). The two subsections that were inadvertently omitted concern the enforcement of the TCMs. The rule amendment addresses language that recognizes "good faith effort" in the implementation of TCMs and provides some flexibility to MPOs to address deficiencies. The TNRCC would only seek a financial penalty for an egregious or knowing violation concerning the implementation of the TCM. A public hearing was held on June 28, 1994, in Austin. The comment period closed June 28, 1994. There was no oral or written testimony given regarding the adoption of the amendment. The new rule is adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), sec.382.017, which provides the TNRCC with the authority to adopt rules consistent with the policy and purposes of the TCAA. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas on July 27, 1994. TRD-9446202 Mary Ruth Holder Director, Legal Division Texas Natural Resource Conservation Commission Effective date: August 26, 1994 Proposal publication date: June 17, 1994 For further information, please call: (512) 239-1966 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part III. Texas Youth Commission Chapter 91. Discipline and Control Control 37 TAC sec.91.73 The Texas Youth Commission (TYC) adopts an amendment to sec.91.73, concerning resocialization program, with changes to the proposed text as published in the May 27, 1994, issue of the Texas Register (19 TxReg 4162). The changes to the proposed text consist of clarifying the who have been moved from their assigned institutional placement to the resocialization unit at Giddings State School are returned to their original placement. The justification for amending the section is to allow for youth in any TYC- operated high-restriction facilities who engage in activities which incite and cause major disruption and endangerment of staff and youth to be better served by placement in a highly structured treatment program. The amendment will allow for qualified youth in high restriction facilities to be moved to the resocialization unit at Giddings State School to allow staff to gain control and youth to receive intensive treatment. No comments were received regarding the adoption of the amendment. The amendment is adopted under the Human Resources Code, sec.61.075, which provides the Texas Youth Commission with the authority to order confinement under conditions is believes best designed for the child's welfare and the interests of the public. The proposed rule implements the Human Resources Code, sec.61.034. sec.91.73. Resocialization Program. (a) Policy. The Texas Youth Commission (TYC) operates an intensive resocialization treatment program at the Giddings State School (GSS). The program is highly restrictive and is operated on the Giddings State School campus in a unit separate from other units and campus activities. (b) Rules. (1) Admissions Criteria. (A) Youth eligible for the intensive resocialization program are: (i) Giddings State School youth classified as sentenced offenders or violent offenders who have intentionally exhibited aggressive, destructive, and assaultive behavior and have not responded to the treatment program; and whose immediate behavior meets one of the following: (I) assault of TYC staff; (II) serious assault of a TYC student which results in bodily injury; (III) willful destruction of property; or (IV) escape with exacerbating circumstances, e.g., aggravated assault, arson or possession of a weapon. (ii) Youth in any other TYC institution who, while in that placement, assaulted TYC staff causing serious bodily injury. (B) The admission decision is based on the following considerations: (i) severity of the incident; (ii) previous behavior indicating a continuing course of conduct; (iii) previous interventions attempted; (iv) sufficiency of other less restrictive interventions at this time; (v) probability of success of the Giddings Resocialization Program (GRP); and (vi) amenability to treatment. (2) Admission Procedure. (A) The fact finding portion of the appropriate hearing, a level I hearing for non-GSS youth or a level II hearing for GSS youth, is held to determine the facts of the youth's behavior. (B) The Special Services Committee of the sending facility recommends that the youth be referred to the GRP, and the referral is approved or denied by the sending superintendent. (C) The GRP admission review staff submits a recommendation regarding admission to the superintendent or director of institutions as appropriate (see below). (D) Except as provided in subparagraph (E) of this paragraph, admission approval by the GSS superintendent or assistant superintendent is required. (E) Youth in institutions other than GSS may be admitted with the approval of the director of institutions. (3) Release. (A) Each youth remains in program for a minimum of 30 days and must successfully complete specific objectives. Reintegration is individual and graduated. (B) The resocialization program treatment team reviews progress weekly and determines when objectives have been met sufficiently to progress through levels and when release from the program has been earned. The team approves return to regular program or sending institution. Youth in the program from other facilities are returned to the security unit of the sending facility for completion of reintegration phases. (C) Progress reviews and reintegration of a youth back to the sending institution are coordinated by GRP staff and sending Special Services Committee and monitored by the directors of psychology. (4) Program Requirements. Privileges afforded in the regular program may be restricted in the following areas: (A) Types of clothing worn may be controlled. Wearing of outdoor shoes may be limited to outdoor activity. (B) Visitation may be restricted to adult family members and attorneys. (C) Incoming calls may be restricted to those of parents or guardians and attorneys. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on August 4, 1994. TRD-9446112 Steve Robinson Executive Director Texas Youth Commission Effective date: August 25, 1994 Proposal publication date: May 27, 1994 For further information, please call: (512) 483-5244 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part VI. Texas Department of Criminal Justice Chapter 157. State Jail Felony Facilities Subchapter A. Admissions and Allocations 37 TAC sec.sec.157.1, 157.3, 157.4, 157.5, 157.7 The Texas Department of Criminal Justice adopts new sec. sec.157.1, 157.3, 157. 5, and 157.7, and amendments to sec.157.4; these sections concern admissions into, and allocation of, state jail felony facility beds. The Board also adopts amendments to sec.sec.157.29, 157.31, and 157.53, concerning the uses of, and the procedures for release from, such facilities. Section 157.7 is adopted with changes to the proposed text as published in the May 31, 1994 issue of the Texas Register (19 TexReg 4248). Sections 157.1, 157.3, 157.4, 157. 5, 157.29, 157.31, and 157.53, are adopted without changes and will not be republished. The sections will clarify policies on state jail felony facilities for: orderly admissions, with a preference for admission into the facility designated to serve the county of residence of the offender; priority of use of such facilities for state jail felons as opposed to transfer inmates; and procedures for notice to judges of progress by offenders sentenced to the facilities. The amendments also update the regional allocation with new data. The sections are part of a continuing policymaking effort to define the implementation of state jails, and will govern access to these facilities consistent with the enabling legislation, Senate Bill 532 (1993). Rick Zinsmeyer, Williamson County CSCD Director, Robert Sherill, 21st and 335th Judicial Districts CSCD Director, and J.W. Hutcherson, 24th Judicial District CSCD Director, all wrote to comment that sec.157.7, requiring intra-regional allocation policies by July 1, 1994, is premature. The agency agrees with the comments and has amended the proposed rule accordingly. The new sections are adopted under the Government Code, sec.492.013(a) which gives the Board the authority to adopt rules. Cross Reference to Statute: Government Code, Chapter 507. sec.157.7. Intra-Regional Allocation Policy. (a) After consideration of the factors used to determine the regions, and any other factors deemed relevant by the board, the board allocates state jail capacity to a community supervision and corrections department within a region based on their proportionate share of the beds allocated to the region in sec.157.5 this title (relating to Regional Allocation Policy) using the fixed percentage established by the allocation formula for admissions to the institutional division as adopted by the board in sec.152.3(f) of this title for the county or counties served by the community supervision and corrections department, multiplied by the available capacity for the region as established in sec.157.5 of this title. (b) The intra-regional allocation policy as it applies to a particular region will be in effect only if the community supervision and corrections departments in that region are unable by their own agreement to establish the allocation of beds in the region. The board must receive written notice on or before January 1, 1995, of the intra-regional allocation policy for a region if one is established by the community supervision and corrections departments by their own agreement. The agreement must be documented in a form to be prescribed by the director of the community justice assistance division. (c) The TDCJ Admissions Coordinator shall, to the extent practicable, provide for admissions into a state jail serving a region in a fashion that reinforces the intra-regional allocation policy, including notification to sentencing judges when their intra-regional allocation has been consumed. Judges shall be specifically encouraged to exercise their discretion to control releases from state jails in order to provide capacity for new admissions. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on August 8, 1994. TRD-9446266 Carl Reynolds General Counsel Texas Department of Criminal Justice Effective date: August 29, 1994 Proposal publication date: May 31, 1994 For further information, please call: (512) 463-9693 Subchapter B. State Jail Standards 37 TAC sec.sec.157.29, 157.31, 157.53 Statutory authority; interpretation of how provisions authorize or require the sections. The amendments and new sections are adopted under the Government Code, sec.492.013(a), which gives the Board the authority to adopt rules. Cross Reference to Statute: Government Code, Chapter 507. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on August 8, 1994. TRD-9446267 Carl Reynolds General Counsel Texas Department of Criminal Justice Effective date: August 29, 1994 Proposal publication date: May 31, 1994 For further information, please call: (512) 463-9693