ADOPTED RULES An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 1. ADMINISTRATION Part III. Office of the Attorney General Chapter 61. Crime Victims Compensation 1 TAC sec.sec.61.2, 61.25, 61.32 (Editor's Note: The following rules were adopted and published in the August 16, 1994, issue of the Texas Register (19 TexReg 6419). The effective date published for these rules was August 26, 1994. The agency has requested that these rules take effect on September 1, 1994. Also, these rules were adopted with changes as stated in the preamble. However, the text was not printed. The following is the language to those rules previously adopted in the August 16, 1994, issue of the Texas Register.) sec.61.2. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Accomplice-A person who is criminally responsible as a party to an offense under the Texas Penal Code, Chapter 7, as amended or as may hereafter be amended. Chief-The administrative head of the Crime Victims Compensation Division. Interested person -The term as used in the Act, Article 56.40, does not include the accused criminal offender or non-claimant creditors. Another person -The term as used in the Act, Article 56. 45 does not include persons related to the claimant within the third degree of affinity or consanguinity; nor does it include purely donative contributors, such as community, civic, or religious organizations. Pecuniary loss -Includes eyeglasses, corrective lenses, dental devices, and prosthetic devices. It does not include lost, damaged or stolen property. Physical therapy -Health care that prevents, identifies, corrects, and alleviates acute or prolonged movement dysfunction or pain of anatomical or physiological orgin. Physical therapy includes the testing and measurement of the function of the musculoskeletal, neurological, pulmonary, and cardiovascular systems and rehabilitative treatment concerned with the restoration of function and prevention of disability caused by injury from criminally injurious conduct. Physical therapy also includes treatment, consultative, educational, and advisory services for the purpose of reducing the incidence and severity of disability and pain to enable, train, or retrain an individual to perform the independent skills and activities of the victims's daily living which the victim experienced immediately before the criminally injurious conduct. Psychiatric care or counseling-Psychiatric care or counseling performed by psychiatrists (M.D. or D.O.), psychologists (Ph.D.), clinical nurse specialists (C.N.S. in psychiatric care), licensed professional counselors (LPC), licensed marriage and family therapists (LMFT) and licensed masters in social work- advanced clinical practitioners (LMSW-ACP). Reports-The term as used in the Act, Article 56.46, includes both written and oral reports. Resident-The term as used in the Act, Article 56.32, includes a person who is in Texas with the intent to established a permanent presence within the state. A person who is in Texas in pursuit of temporary business, recreational activities or whose presence in Texas is of a transient nature is not a "resident of this state" for purposes of the Act. State-A state of the United States of America, the District of Columbia, the Commonwealth of Puerto Rico, or any possession or territory of the United States. sec.61.25. Closing Claims. A claim for an award is closed when any of the following conditions occurs: (1) the statutory maximum allowed under the Act, Article 56.42 has been awarded; (2) the 60-day time period for appealing the decision of the chief to award or deny a claim has passed without a request from the claimant for a hearing; (3) the 20-day time period for appealing the decision of the hearing examiner in a final ruling has passed and the claimant has not filed a notice of dissatisfaction with the Attorney General as required under the Act, Article 56.48(a). sec.61.32. Inpatient Psychiatric Care. Inpatient psychiatric hospitalization care is limited to $400 per day with a maximum 30-day stay and shall include room, board, medications and therapeutic modalities. Inpatient psychiatric care includes care at a residential treatment center. Only admissions made at the direction of a licensed medical doctor will be payable. Under unusual facts and circumstances, additional hospitalization exceeding 30 days may be allowed, but limited to those which are pre-authorized and approved in accordance with general standards of utilization review. Psychiatric hospitals and residential treatment centers must be licensed by the proper state licensing authority. 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 5, 1994. TRD-9446214 Jerry Benedict Assistant Attorney General Office of the Attorney General Effective date: September 1, 1994 Proposal publication date: March 15, 1994 For further information, please call: (512) 475-4292 TITLE 13. CULTURAL RESOURCES Part IV. Texas Antiquities Committee Chapter 41. Practice and Procedure 13 TAC sec.41.20 The Texas Antiquities Committee (committee) adopts an amendment to sec.41. 20, concerning Archeological Permit Categories, without changes to the proposed text as published in the May 17, 1994, issue of the Texas Register (19 TexReg 3819). The amendment is needed to add other permit categories that allow for greater flexibility in designing mitigation alternatives for archeological investigations under antiquities permits issued by the Committee. The current permit categories allow data recovery as the only mitigation option. Experience by the committee staff has demonstrated that other mitigation options, such as site monitoring or historical documentation, are warranted in certain instances to insure that the type of mitigation is appropriate. No comments were received regarding the adoption of the amendment during the comment period and no testimony was given at the Committee's June 17, 1994 public meeting. The amendment is adopted under the Natural Resources Code, Title 9, Chapter 191 (revised by Senate Bill 231, 68th Legislature, 1983, and by House Bill 2056, 70th Legislature, 1987), sec.191.02, which provides the Texas Antiquities Committee with authority to promulgate rules and require contract or permit conditions to reasonably effect the purposes of Chapter 191. 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 26, 1994. TRD-9447171 Mark H. Denton Staff Archeologist Texas Antiquities Committee Effective date: September 16, 1994 Proposal publication date: May 17, 1994 For further information, please call: (512) 463-6096 TITLE 16. ECONOMIC REGULATION Part III. Texas Alcoholic Beverage Commission Chapter 55. Bingo Regulations and Tax (Editor's Note: House Bill 2771, 73rd Legislature, Regular Session, provided for the transfer of Bingo Enabling Act from the Texas Alcoholic Beverage Commission to the Texas Lottery Commission effective April 1, 1994. The Texas Register is administratively transferring the rules listed in the table published in this issue in the Tables and Graphic Section. The rules are being transferred from Title 16, Part III. Texas Alcoholic Beverage Commission to Part IX. Texas Lottery Commission. The table lists the old rule number and the new rule number that corresponds.) Figure: 16 TAC sec.402.541 Part IX. Texas Lottery Commission Chapter 402. Bingo Regulations and Tax (Editor's Note: House Bill 2771, 73rd Legislature, Regular Session, provided for the transfer of Bingo Enabling Act from the Texas Alcoholic Beverage Commission to the Texas Lottery Commission effective April 1, 1994. The Texas Register is administratively transferring the rules listed in the table published in this issue in the Tables and Graphic Section. The rules are being transferred from Title 16, Part III. Texas Alcoholic Beverage Commission to Part IX. Texas Lottery Commission. The table lists the old rule number and the new rule number that corresponds.) Figure: 16 TAC sec.402.541 TITLE 22. EXAMINING BOARDS Part XXIII. Texas Real Estate Commission Chapter 533. Practice and Procedure 22 TAC sec.533.29 The Texas Real Estate Commission adopts an amendment to sec.533.29, concerning motions for rehearing, modification of order, or probation, with changes to the proposed text as published in the July 1, 1994, issue of the Texas Register (19 TexReg 5081). The amendment provides procedural guidelines for parties appearing before either a staff hearings officer or the members of the Texas Real Estate Commission in contested cases. A number of changes were made on final adoption of the amendment. The section was modified to clarify that, in addition to a motion for rehearing, a party may file a motion for modification of the order, a motion for probation of the prior order, or both. The section was generally rearranged to address the three kinds of motions in the same way. The time for filing motions for modification or probation will be the same as for filing motions for rehearing. Language was added to indicate that motions before the staff hearings officer will be conducted in the same manner as those before the members of the commission except where the context of the section clearly requires a different procedure to be followed. Another change was made to permit a party opposing a motion to file affidavits or documentary evidence in response. A party requesting a modification of a prior order or probation would be required to specify the nature of the modification or the terms and conditions of the probation, and the other party would be permitted to request other modifications or terms and conditions in response. A definition of the term "good cause" was deleted as unnecessary. Adoption of the amendment is necessary to ensure an orderly process for consideration of motions in contested cases. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 6573a, sec.5(h), which provide the Texas Real Estate Commission with the authority to make and enforce all rules and regulations necessary for the performance of its duties. sec.533.29. Contested Case: Prerequisite to Judicial Review; Motions for Rehearing, Modification of Order, or Probation. (a) Except in the case of an emergency decision or order, a motion for rehearing is a prerequisite to judicial review. In addition to any motion for rehearing, a party may file a motion to modify the prior order or a motion for probation of the prior order, or both. The filing and consideration of motions shall be governed by the provisions of this section. (b) A motion for rehearing, modification of order, or probation must set forth the particular finding of fact, conclusion of law, ruling, or other action which the complaining party asserts was error, such as a violation of a constitutional or statutory provision, lack of authority, unlawful procedure, lack of substantial evidence, abuse of discretion or other error of law, or other good cause specifically described in the motion. In the absence of specific grounds in the motion, the presiding officer, or the members of the commission, as the case may be, shall presume that the motion should be overruled. (c) If the party filing the motion desires the motion to be considered by, and any rehearing to be before, the members of the commission, the party shall include in the motion a request for consideration by, and any rehearing to be before, the members of the commission. A party shall submit the motion to either the presiding officer or to the members of the commission, as the case may be, for consideration and appropriate action. A motion which requests action by the presiding officer, and in the alternative, action by the members of the commission, shall be deemed a motion for consideration of the presiding officer and treated accordingly. A motion that does not include an express request for consideration by the members of the commission shall be deemed to be a request for consideration by a presiding officer, and if the party has filed a timely motion for rehearing to be considered by either the presiding officer or the members of the commission, the party need not file any additional motions for rehearing as a prerequisite for judicial review. (d) A motion for rehearing, modification of order, or probation must be filed within 20 days after the date the party or his attorney of record is notified of the final decision or order. Replies to the motion must be filed with the agency within 30 days after the party or his attorney of record is notified of the final decision or order. The presiding officer or the commission itself, as appropriate, must act on the motion within 45 days after the party or his attorney of record is notified of the final decision or order. The presiding officer or the members of the commission, as appropriate, may, by written order, extend the time for filing, replying to, and taking action on a motion, not to exceed 90 days after the date the party or his attorney of record is notified of the final decision or order. In the event of an extension of time, a motion is overruled by operation of law on the date fixed by the written order of extension, or in the absence of a fixed date, 90 days after the party or his attorney of record is notified of the final decision or order. The presiding officer or the members of the commission, as appropriate, may modify this schedule with the consent of the parties. (e) Motions for rehearing, modification of order, or probation before the members of the commission shall be heard in accordance with this section. Except where the context clearly contemplates a different procedure to be followed before the members of the commission, any hearings before the presiding officer to consider motions shall be conducted in the manner required by this section. (1) The chairman or the member appointed by the chairman to preside ("the presiding member") shall announce the case. The members shall consider a motion for rehearing prior to considering or acting upon a motion for modification of order or probation. The members shall consider a motion for modification of order prior to considering or acting upon a motion for probation. Upon the request of any party, the presiding member shall conduct a prehearing conference with the parties and their attorneys of record. The presiding member shall announce reasonable time limits for any oral arguments to be presented by the parties. The hearing on the motion shall be limited to a consideration of the grounds set forth in the motion. Testimony by affidavit or documentary evidence such as excerpts of the record before the presiding officer may be offered in support of, or in opposition to, the motion; provided, however, a party offering affidavit testimony or documentary evidence must provide the other party with copies of the affidavits or documents at the time the motion or reply is filed. (2) In presenting oral arguments, the party filing the motion shall have the burden of proof and persuasion and shall open and close. The party responding to the motion may offer rebuttal arguments. Parties may request an opportunity for additional rebuttal subject to the discretion of the presiding member. (3) After being recognized by the presiding member, the members of the commission may ask questions of the parties. If a party is represented by counsel, the questions shall be directed to the party's attorney. Questions shall be limited to the grounds asserted for the motion to be granted and to the arguments made by the parties. (4) Upon the conclusion of oral arguments, questions by the members of the commission, and any discussion by the members of the commission, the presiding member shall call for a vote on the motion. It shall not be in order for a member of the commission to make a separate motion or to second a motion filed by a party. The presiding member may vote on the motion. A motion may be granted only if a majority of the members present and voting vote in favor of the motion. In the event of a tie vote, the presiding member shall announce that the motion is overruled. The granting of a motion for rehearing vacates any prior order in the contested case. (f) A party filing a motion for modification of order or probation shall specify in the motion the modification or such terms and conditions of probation as are desired by the party. A party replying to a motion may also specify a modification or terms and conditions for probation. In addition to the terms and conditions for probation which are set forth in the Real Estate License Act, Article 6573a, Texas Civil Statutes, (the Act) sec.15B(d), the members of the commission or a commission employee acting as presiding officer may require a licensee: (1) to comply with the provisions of the Act and the rules of the Texas Real Estate Commission; (2) to cooperate with the Enforcement Division of the Texas Real Estate Commission in the investigation of any complaints filed during the probation; (3) to complete courses of education relevant to the matter which is the basis of the probation; (4) to repay money belonging to another person or to the State of Texas; or (5) to comply with such other reasonable terms and conditions as the members of the commission or commission employee acting as presiding officer may impose. 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 24, 1994. TRD-9447149 Mark A. Moseley General Counsel Texas Real Estate Commission Effective date: September 15, 1994 Proposal publication date: July 1, 1994 For further information, please call: (512) 465-3900 Chapter 535. Provisions of the Real Estate License Act Licensed Real Estate Inspectors 22 TAC sec.sec.535.205, 535.208, 535.212-535.216, 535.218, 535. 226 The Texas Real Estate Commission adopts sec.sec.535.205, 535.208, 535.212-535. 216, 535.218, and 535.226, concerning licensed real estate inspectors. Sections 535.205, 535.208, 535.212, and 535.216 are adopted with changes to the proposed text as published in the July 5, 1994, issue of the Texas Register (19 TexReg 5144). The amendments to sec. sec.535.214, 535.218, and 535. 226, new sec.535.213 and new sec.535.215 are adopted without changes and will not be republished. The amendment to sec.535.205 deleted obsolete provisions of that section relating to the prior law; a nonsubstantive change on final adoption added a citation to The Real Estate License Act. Section 535.205 and sec.535.208 also adopted by reference different inspection logs which applicants would complete to receive experience credits for licensing or the authority to sponsor other inspectors; the commission determined that a single inspection log, revised and renumbered as REI 1-2, would simplify the reporting process and reduce the number of forms applicants would be required to use. Section 535.208 was revised on final adoption to eliminate the inspection logs previously adopted by reference in that section. The amendment to sec.535.208 adopts by reference a series of revised application forms used to obtain inspector licenses. Nonsubstantive changes were also made in the final adoptions of sec.535.212 and sec.535.216 to reflect that inactive licensees were on, rather than in, inactive status. Section 535.212 was amended to provide additional guidelines in the measuring and acceptance of education and experience required for an inspector license. New sec.535.213 establishes an accreditation process for real estate inspection schools and sets minimum requirements for instructors. Section 535. 214 was amended to clarify that licensing examinations for inspectors will be conducted in the same manner as those conducted by the commission for real estate broker or salesman applicants, except that the commission will schedule inspector examinees to sit for their examinations. New sec.535.215 establishes an inactive status for inspectors similar to that presently in place for real estate brokers and salesmen; the inactive licensees may not practice and must notify the commission to be placed again on active status. The amendment to sec.535.216 clarifies the license renewal process for inactive inspectors. The amendment to sec.535.218 permits the acceptance of code-related courses for continuing education and clarifies that inactive licensees are not subject to continuing education requirements. The amendment to sec.535.226 clarifies that inactive apprentices or real estate inspectors returning to active status under the sponsorship of a professional inspector must comply with the notice requirements under sec.535.215 (relating to Inactive Inspector Status). No comments were received regarding the amendments and new sections. The amendments and new sections are adopted under Texas Civil Statutes, Article 6573a, sec.5(h), which authorize the Texas Real Estate Commission to make and enforce all rules and regulations necessary for the performance of its duties. sec.535.205. Inspectors Licensed Under Prior Law. (a) The commission adopts by reference Inspection Log REI 1-2 approved by the commission in 1994. This form is published by and available from the Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188. (b) A person licensed as an inspector on the effective date of Texas Civil Statutes, Article 6573a, sec.23, (the Act) may not sponsor an apprentice inspector or a real estate inspector until the person has certified to the commission that the person has performed at least 200 real estate inspections. (c) Inspections required to obtain a license or to sponsor apprentices or real estate inspectors shall be measured in accordance with the provisions of sec.535.212 of this title (relating to Education and Experience Requirements for a License). sec.535.208. Application for a License. (a) A person desiring to be licensed shall file an application using forms prescribed by the commission. The commission may not accept an application for filing if the application is materially incomplete or the application is not accompanied by the appropriate fee. The commission may not issue a license unless the applicant: (1) (No change.) (2) satisfies any experience or education requirements established by the Real Estate License Act (the Act), sec.23, or by these sections, providing written proof from the course provider that successful completion of a final course examination or other form of final evaluation was required for course credit; (3)-(4) (No change.) (b) The Texas Real Estate Commission adopts by reference the following forms approved by the commission in 1991 or 1994. These forms are published by and available from the Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188: (1) Application for a License as an Apprentice Inspector, Form REI 2-2; (2) Application for a License as a Real Estate Inspector, Form REI 4-2; and (3) Application for a License as a Professional Inspector, Form REI 6-2. (c)-(e) (No change. ) sec.535.212. Education and Experience Requirements for a License. (a) (No change.) (b) The commission may approve courses to be submitted by applicants for a real estate inspector or a professional inspector license upon a determination by the commission that: (1) the course was devoted to a subject or subjects named in the Real Estate License Act (the Act), sec.23(a)(3); provided however, that no more than 30 cumulative classroom hours in course credit may be accepted by the commission for inspection-related business, legal, report writing or ethics courses submitted by an applicant for a professional inspector license or for a real estate inspector license; and (2) the course was offered by an accredited college or university, by a school accredited by the commission or by a real estate or inspector regulatory agency of another state, by a unit of federal, state or local government, by a nationally recognized building, electrical, plumbing, mechanical or fire code organization or the course was approved and regulated by an agency of this state. (c) A course must also meet the following requirements: (1) the applicant must have received in a classroom presentation the hours of instruction for which credit was given, unless the course was offered by correspondence in accordance with the provisions of this section; (2) the applicant must have successfully completed a final examination for course credit; (3) daily course segments must be at least two hours long but no longer than ten hours; (4) the applicant must have attended the entire course; and (5) if the course was offered by a trade association, the course must have been approved and regulated by an agency of this state. (d)-(h) (No change.) (i) Provided documentation is provided by the applicant as the commission finds reasonably necessary to support the experience claimed, the commission may accept the following in satisfaction of no more than 50% of the number of inspections required to obtain a professional inspector license. (1) One year of experience as a builder, licensed architect or engineer, electrician, plumber, or in another licensed or registered occupation involving the installation, service, repair or maintenance of the equipment or systems found in improvements to real property may count as 25 inspections. (2) One year of such other experience, such as teaching, which the commission determines is substantially similar to that described in paragraph (1) may be substituted for the equivalent number of inspections permitted under the provisions of this section. (j) For the purpose of measuring the number of inspections required to receive a license or to sponsor apprentice inspectors or real estate inspectors, the commission shall consider an improvement to real property to be any unit which is capable of being separately rented, leased or sold. Applicants who claim experience for oral inspection reports must be able to verify that an inspection was performed by file memoranda or other documentation. Subject to the following restrictions, an inspection of an improvement to real property which includes the structural and equipment/systems of the unit shall constitute a single inspection. (1) -(4) (No change.) (5) The commission may not give experience credit to the same applicant or professional inspector for more than three complete or six partial inspections per day. No more than three applicants may receive credit for the inspection of the same unit within a 30-day period, and no more than three apprentice inspectors may receive credit for an inspection of the same unit on the same day. (6) For the purpose of satisfying any requirement that a license be held for a period of time prior to an applicant's being eligible for a license as a real estate inspector or professional inspector, the commission may not give credit for periods in which a license was on inactive status. An applicant for a real estate inspector license must have been licensed on active status for a total of at least three months within the 12-month period prior to the filing of the application. An applicant for a professional license must have been licensed on active status for a total of at least 12 months within the 24-month period prior to the filing of the application. sec.535.216. Renewal of License. (a) (No change.) (b) The commission shall mail the prescribed renewal application form to the last known business address of the licensee at least 90 days prior to the expiration of the license. If the license is on inactive status, the form will be mailed to the licensee's last known residence address. The commission shall have no obligation to mail a form to a licensee on inactive status who fails to furnish the commission with a residence address. An apprentice inspector or a real estate inspector must be sponsored by a licensed professional inspector in order to renew a license on an active status. It is the responsibility of the licensee to apply for renewal, and failure to receive a renewal application form does not relieve the licensee of the responsibility of applying for renewal. (c)-(d) (No change.) (e) An inspector licensed on active status who timely files a renewal application together with the applicable fee and evidence of completion of any required continuing education courses may continue to practice prior to receiving a new license certificate from the commission. If the license has expired and the licensee files an application to renew the license, the licensee may not practice until the new certificate is received. 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 25, 1994. TRD-9447148 Mark A. Moseley General Counsel Texas Real Estate Commission Effective date: September 15, 1994 Proposal publication date: July 5, 1994 For further information, please call: (512) 465-3900 Chapter 539. Provisions of the Residential Service Company Act Subchapter M. Examinations 22 TAC sec.539.121 The Texas Real Estate Commission adopts new sec.539.121, concerning financial examinations of licensed residential service companies, without changes to the proposed text as published in the July 1, 1994, issue of the Texas Register (19 TexReg 5082). The new section obligates the commission to examine the affairs of each licensed residential service company as the commission deems necessary but no less than once every three years. The new section clarifies that a failure to provide access to the company's books and records is a violation of Texas Civil Statutes, Article 6573a, sec.13(b). No comments were received regarding adoption of the new section. The new section is adopted under Texas Civil Statutes, Article 6573b, sec.5, which authorize the Texas Real Estate Commission to adopt, promulgate, and enforce rules and regulations necessary to effectuate the intent and provisions of the Residential Service Company Act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on August 24, 1994. TRD-9447150 Mark A. Moseley General Counsel Texas Real Estate Commission Effective date: September 15, 1994 Proposal publication date: July 1, 1994 For further information, please call: (512) 465-3900 Title 34. PUBLIC FINANCE Part I. Comptroller of Public Accounts Chapter 1. Central Administration Subchapter B. Public Information 34 TAC sec.1.200 The Comptroller of Public Accounts adopts new sec.1.200, concerning charges for public information, without changes to the proposed text as published in the July 19, 1994, issue of the Texas Register (19 TexReg 5615). The new rule specifies the charges the agency will make for copies of and access to public information. These rules are proposed to comply with Chapter 428, Acts, 73rd Legislature, 1993, which requires agencies to adopt rules setting forth the charges they will make for copies of public information. As allowed by Chapter 428 and in accordance with 1 TAC sec.111.61(b) of the rules of the General Services Commission, except as otherwise set forth in these proposed rules, the Comptroller of Public Accounts proposes to adopt the charges and definitions set out in 1 TAC sec. sec.111.62-111.70 of the General Services Commission rules, concerning charges for public records. No comments were received regarding adoption of the new section. The new section is adopted under Chapter 428, Acts, 73rd Legislature, 1993, which requires agencies to adopt rules setting forth the charges they will make for copies of public information. The new section implements Chapter 428, Acts, 73rd Legislature, 1993. 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 25, 1994. TRD-9447168 Martin Cherry Chief, General Law Comptroller of Public Accounts Effective date: September 15, 1994 Proposal publication date: July 19, 1994 For further information, please call: (512) 463-4028 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 69. Contracted Services The Texas Department of Human Services (DHS) adopts the repeal of sec.sec.69. 201-69.207, 69.209-69.263, 69.265, 69.267-69.274, 69.280, 69.282, 69.284, 69. 286, 69.288, and 69.290; new sec. sec.69.201-69.211; and the repeal of sec.sec.69. 301-69.305, concerning Contract Services. The repeal of sec.sec.69.201-69.207, 69. 209-69.263, 69.265, 69.267-69.274, 69.280, 69.282, 69.284, 69.286, 69.288, 69. 290, and 69.301-69.305 are adopted without changes, new sec.sec.69.201, 69.203, 69. 205-69.207, and 69.209-69.211 are adopted without changes. New sec.sec.69.202, 69. 204, and 69.208 are adopted with changes to the proposed text as published in the July 5, 1994, issue of the Texas Register (19 TexReg 5158). The justification for the repeal and new sections is to clarify the contract services rule base. The sections will function by deleting program-specific rules which are no longer of general applicability. Some of the repealed rules may be reproposed as rules of the affected program. The department received comments from Nutri-Care, Inc.; Child, Inc.; Wee Care Nutritions; The Child Care Group; Northside Nutritional Food Program; Care Network; Association of Children's Nutritional Growth; Texas child and Adult Care Food Program sponsors Association; Youngcare, Inc.; Parent/Child Incorporated; and The Edinburg child Care, Inc. A summary of the comments and the department's responses follows. Although most of the commenters recognize that the sampling procedure is an acceptable audit methodology, they believe that "...Should these policies be approved and implemented, a good number of agencies having 'questioned costs' and having to repay TDHS monies, will have to close shop since most agencies do not generate funds for profit and will not be able to repay the 'questioned costs' funds as proposed in these policies." In addition, some commenters expressed concern that DHS would not select a statistically valid sample on which to extrapolate the findings or that the sampling methods employed by DHS are often not statistically significant enough to justify extrapolation. In response to requests from two commenters, a public hearing on the rules was held on August 18, 1994, at which one person testified. The proposed rules that were commented on have been department policy since the fall of 1988. The only change that is proposed is the renumbering of the sections as a result of the reorganization of the department's contract services rule base. The department initiated the following changes to sec. sec.69.202(b)(1), 69.204, and 69.208(b). In sec.69.202(b)(1) language was added to clarify when noncompetitive procurement methods may be used. The change to sec.69.204 specifies when the non-governmental contractors certification is to be completed, as provided for in sec.sec.79.1801-79.1806 of this title (relating to contracting ethics). Section 69.208(b) was changed to clarify that the sample will be statistically valid. Subchapter L. Contract Administration 40 TAC sec.sec.69.201-69.207, 69.209-69.263, 69.265, 69.267-69. 274, 69.280, 69.282, 69.284, 69.286, 69.288, 69.290 The repeals are adopted under the Human Resources Code, Title 2, Chapter 22, which authorizes the department to administer public assistance programs. The repeals implement sec.sec.22.001-22.024 of the Human Resources Code. 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 25, 1994. TRD-9447202 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: October 1, 1994 Proposal publication date: July 5, 1994 For further information, please call: (512) 450-3765 40 TAC sec.sec.69.201-69.211 The new sections are adopted under the Human Resources Code, Title 2, Chapter 22, which authorizes the department to administer public assistance programs. The new sections implement sec.sec.22.001-22.024 of the Human Resources Code. sec.69.202. Procurement. (a) Extent of Competition. (1) Procurements are conducted so that they provide maximum open and free competition. The Texas Department of Human Services (DHS) develops enrollment and procurement packages based on clear and accurate descriptions of the services to be purchased. The package includes all requirements the offeror(s) must fulfill for proposals and/or enrollments to be evaluated. (2) Service requirements should not unduly restrict competition by eliminating or limiting potential contractors' participation. DHS acts affirmatively to ensure that small and historically underutilized businesses (HUBs) have an equal opportunity to compete for and/or to be selected for the award of contracts and subcontracts. (b) Exemptions to Competition. (1) Noncompetitive procurement methods may be used if authorized by law, rule, or regulations and if: (A) all qualified providers are allowed to enroll if they accept the established unit rate(s) for services; or (B) no acceptable offers using a competitive method are received; or (C) services are available from only one source; or (D) in an emergency, it is necessary to provide uninterrupted services to clients. (2) DHS has the right to reject all offers submitted in response to a solicitation. sec.69.204. Required Disclosure of Current or Previous Employment at the Texas Department of Human Services (DHS). A person who offers to perform a service for DHS and who is or has been employed by DHS any time during the two preceding years must disclose the information listed on the Nongovernmental Contractor's Certification at contract initiation and at each renewal. sec.69.208. Methods for Auditing Contracts. (a) All services for which the Texas Department of Human Services (DHS) is charged are subject to review and audit. During a review or audit, the contractor must give DHS or its authorized representative information about his claims for payment. The contractor is responsible for proving he is entitled to payments. The contractor must make restitution if a review or audit reveals that improper payments were made or that the contractor's records do not support the payments according to federal, state, and local laws and rules, DHS procedures, and the contract provisions. (b) DHS procedures for contract reviews or audits may include the use of sampling and extrapolation. In this procedure, DHS selects a statistically valid sample of the cases or claims for which the contractor received payment for the time under review and examines records for those cases or claims. All improper payments or units of service in the sample are then totaled and extrapolated to all of the cases or claims for which the contractor has been paid during the audit period. After being notified and given the opportunity for a hearing according to the hearing requirements, the contractor is required to pay DHS 93% of the total extrapolated amount of the improper payments. 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 25, 1994. TRD-9447204 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: October 1, 1994 Proposal publication date: July 5, 1949 For further information, please call: (512) 450-3765 Subchapter M. Auditing 40 TAC sec.sec.69.301-69.305 The repeals are adopted under the Human Resources Code, Title 2, Chapter 22, which authorizes the department to administer public assistance programs. The repeals implement sec.sec.22.001-22.024 of the Human Resources Code. 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 25, 1994. TRD-9447203 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: October 1, 1994 Proposal publication date: July 5, 1994 For further information, please call: (512) 450-3765 TITLE 43. TRANSPORTATION Part I. Texas Department of Transportation Chapter 1. Administration Access to Official Records 43 TAC sec.sec.1.500-1.503 The Texas Department of Transportation adopts new sec. sec.1.500-1.503, concerning Access to Official Records, without changes to the proposed text as published in the July 15, 1994, issue of the Texas Register (19 TexReg 5465). The adoption of these sections is necessary to comply with House Bill 1009, 73rd Legislature, 1993, which requires each agency by rule to specify the charges the agency will make for copies of open records. Section 1.500 describes the purpose and scope of the proposed sections. sec.1.501 defines words and terms used in the proposed sections. Section 1.502 describes how a person may request, be provided, and examine official records, and designates department officials as the executive director's authorized representatives for the purpose of certifying official records. Section 1.503 lists the standard charges for copies and related services, provides for a personnel charge of $15 per hour plus an overhead charge of 20% for the copying of more than 50 pages of records, authorizes the department to waive charges for records relating to a grievance proceeding, and authorizes the executive director or designee to waive or reduce charges if waiver would be in the public interest. On July 26, 1994, the department conducted a public hearing on the proposed new sec.sec.1.500-1.503. No written or oral comments were received concerning the proposed new sections. The new sections are adopted under Texas Civil Statutes, Articles 6666, which provide the Texas Transportation Commission with the authority to promulgate rules for the conduct of the work of the Texas Department of Transportation, and Government Code, Chapter 552, which provides for access to public information. 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 26, 1994. TRD-9447216 Diane L. Northam Legal Executive Assistant Texas Department of Transportation Effective date: September 29, 1994 Proposal publication date: July 15, 1994 For further information, please call: (512) 463-8630 Chapter 4. Employment Practices Subchapter C. Employment and Education Programs 43 TAC sec.sec.4.20-4.24 The Texas Department of Transportation adopts new Subchapter C, sec.sec.4. 20- 4.24 concerning Employment and Education Programs, without changes to the proposed text as published in the July 15, 1994, issue of the Texas Register (19 TexReg 5467). It is the policy of the department to: encourage education by establishing programs to integrate academic studies with supervised work experience, to increase a student's employment potential by offering employment experience; bring new educational methods into the workplace; enrich secondary institutions' and universities' curricula; help educational institutions retain students; and provide the department with a recruiting source for professional, ethnic and workforce diversity for long-range staffing goals by building an understanding of the department's career opportunities; and In furtherance of this policy and to comply with Texas Civil Statutes, Article 6669a, which mandates that the department create a college cooperative education program, the Texas Transportation Commission deems it necessary and desirable to adopt new sec. sec.4.20-4.24 to: establish a college cooperative program; rename the previously established high school vocational education program to be known as the high school cooperative education program (HSCEP); and establish a college intern program. New sec.4.20 and sec.4.21 describe the purpose and scope of the programs to integrate academic studies with supervised work experience and to provide the department with a recruiting source, and furnish definitions. New sec.4.22: creates the college cooperative education program which combines collegiate classroom education with full-time practical employment experience through alternating periods of work and study; specifies eligibility criteria for the institution; specifies that a student must be the required age, meet the required legal status, be enrolled in a cooperative education program at an eligible institution, be enrolled for the required length of time in an eligible academic program, and meet the required grade point average to be eligible; establishes application procedures; specifies that the student may be selected based upon current enrollment and participation in a field of study related to the assigned work, the student's skill, knowledge and ability, grade point average, previous work experience, and availability to work; specifies criteria for employment if selected; describes the institution's role in the program; describes the student's role in applying for employment, working with the department, complying with the program's rules and maintaining academic status; stipulates the duration of employment; and establishes an evaluation procedure; and New sec.4.23: creates a high school cooperative education program which combines high school classroom education with part-time practical employment experience in an office environment; specifies eligibility criteria for the high school; specifies that a student must be the required age, enrolled in a cooperative program at an eligible high school, and working towards employment in an office environment; establishes application procedures; specifies that the student may be selected based upon current enrollment and participation in a field of study related to the assigned work, the student's skill, knowledge and ability, previous work experience, and grade point average; specifies criteria for employment if selected; describes the high school's role in the program; describes the student's role in applying for employment, working with the department, complying with the program's rules, and maintaining academic status; stipulates the duration of employment; and establishes an evaluation procedure; and New sec.4.24: creates an intern program which furnishes a college student with full-time practical employment; specifies eligibility criteria for the institution; specifies that a student must be the required age, meet the required legal status; be enrolled for the required length of time in an eligible academic program; and meet the required grade point average to be eligible; establishes application procedures; specifies that selection may be based upon the student's enrollment and participation in a field of study related to the assigned work, the student's skill, knowledge and ability, grade point average and previous work experience; specifies criteria for employment if selected; describes the institution's role in the program; describes the student's role in applying for employment, working with the department, complying with the program's rules, and maintaining academic status; stipulates the duration of employment; and establishes an evaluation procedure. On July 25, 1994, the department conducted a public hearing on the proposed new sec.sec.4.20-4.24. No written or oral comments were received concerning the proposed new sections. The new sections are adopted under Texas Civil Statutes, Article 6666 and Article 6669a, which provide the Texas Transportation Commission with the authority to promulgate rules for the conduct of the work of the Texas Department of Transportation, and specifically mandate that the department create a cooperative education program with colleges. 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 26, 1994. TRD-9447213 Diane L. Northam Legal Executive Assistant Texas Department of Transportation Effective date: September 16, 1994 Proposal publication date: July 15, 1994 For further information, please call: (512) 463-8630 Chapter 21. Right of Way Division Manuals and Subscription Services 43 TAC sec.21.91 The Texas Department of Transportation adopts the repeal of sec.21.91, concerning Sales of Division Manuals and Subscription Services, without changes to the proposed text as published in the July 15, 1994, issue of the Texas Register (19 TexReg 5471). Section 21.91 requires the department to make division manuals and subscription services available to the public for a fee. This section is no longer necessary due to the concurrent adoption of new sec.sec.1.500-1.503, concerning Access to Official Records, which are comprehensive rules governing public access to official records. On July 26, 1994, the department conducted a public hearing on the proposed repeal of sec.21.91. No written or oral comments were received concerning the proposed new sections. The repeal is adopted under Texas Civil Statutes, Articles 6666, which provide the Texas Transportation Commission with the authority to promulgate rules for the conduct of the work of the Texas Department of Transportation, and Government Code, Chapter 552 which provides for access to public information. 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 26, 1994. TRD-9447214 Diane L. Northam Legal Executive Assistant Texas Department of Transportation Effective date: September 29, 1994 Proposal publication date: July 15, 1994 For further information, please call: (512) 463-8630 Chapter 27. Automation Division 43 TAC sec.27.1 The Texas Department of Transportation adopts the repeal of sec.27.1, concerning Noncertified Photographic Reproductions, without changes to the proposed text as published in the July 15, 1994, issue of the Texas Register (19 TexReg 5471). Section 27.1 requires the department to make noncertified photographic reproductions available to the public for a fee. This section is no longer necessary due to the concurrent adoption of new sec.sec.1.500-1.503, concerning Access to Official Records, which are comprehensive rules governing public access to official records. On July 26, 1994, the department conducted a public hearing on the proposed repeal of sec.21.91. No written or oral comments were received concerning the proposed new sections. The repeal is adopted under Texas Civil Statutes, Articles 6666, which provide the Texas Transportation Commission with the authority to promulgate rules for the conduct of the work of the Texas Department of Transportation, and Government Code, Chapter 552, which provides for access to public information. 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 26, 1994. TRD-9447215 Diane L. Northam Legal Executive Assistant Texas Department of Transportation Effective date: September 29, 1994 Proposal publication date: July 15, 1994 For further information, please call: (512) 463-8630