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 IV. Office of the Secretary of State Chapter 71. Office of the Secretary of State Practice and Procedure 1 TAC sec.71.8 The Office of the Secretary of State adopts an amendment to sec.71.8, concerning fees for copies of open records, without changes to the proposed text as published in the November 1, 1994, issue of the Texas Register (19 TexReg 8661). The amendment clarifies that the Office of the Secretary of State will charge full cost for paper copies in excess of 50 pages in accordance with the provisions of the Texas Government Code, sec.552.261. The amendment is necessary to administer the provisions of House Bill 1009, Chapter 428, Acts, 73rd Legislature, Regular Session (1993), regarding the cost of providing public records and the charges that state agencies may set to recover the full costs of providing copies of or access to, public records. No comments were received regarding adoption of the amendment. The amendment is adopted under the authority of Texas Government Code, sec.552.261 (Vernon Supplement 1994), which provides the Office of the Secretary of State with the authority to adopt rules which specify the charges for copies of public records and to establish charges equal to the full cost of providing the copy. 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 December 15, 1994. TRD-9452469 Machree Garrett Gibson Assistant Secretary of State Office of the Secretary of State Effective date: January 5, 1995 Proposal publication date: November 1, 1994 For further information, please call: (512) 463-5586 Part VII. State Office of Administrative Hearings Chapter 159. Rules of Procedure for Administrative License Suspension Hearings 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, 159.39, 159.41 The State Office of Administrative Hearings (SOAH) adopts new sec.sec.159.3, 159.7, 159.9, 159.11, 159.13, 159.15, 159.17, 159.19, 159.21, 159.23, 159.25, 159.29, 159.33, 159.37 and 159.41, are adopted with changes to the proposed text as published in the August 5, 1994, issue of the Texas Register (19 TexReg 6073). Sections 159.1, 159.5, 159.27, 159.31, 159.35 and 159.39 are adopted without changes and will not be republished. This new chapter is necessary to set out procedures to be used in conducting administrative drivers' license suspension hearings. The objective of this new section is to construct just and impartial forums and procedures that will permit both parties a fair opportunity to present their respective positions and to enable impartial decision makers to promptly issue decisions based on the evidence presented. The adopted sections will expedite the hearing of Administrative License Revocation (ALR) cases, yet protect the procedural and substantive rights of defendants, consistent with statutory provisions. In addition, the sections provide clear and specific procedures for parties and other participants to follow in ALR proceedings; give appropriate notice of required filings; and provide notice of certain statutory interpretations made by the SOAH. By providing uniform procedures, this section also ensures that ALR cases are conducted in a consistent, efficient and economical manner throughout the state. This adoption includes several changes to the proposed text as published. In sec.159.3, the adopted section added several new definitions and clarified others in response to suggestions, e.g. licensee was deleted and defendant, which had been omitted inadvertently was added; "intoxicated," and "peace officer" were defined according to existing statutory definitions. In sec.159.7, the adopted section corrected a misprint that occurred in subsection (c) of the proposal. In sec.159.9, the adopted section slightly changed the language of subsection (b) to more consistently track the statutory language relating to where hearings will be held. In addition, a new subsection (f) was added to indicate that once a hearing is scheduled before the Office, all requests from the parties are to be in written form, with a copy sent to the opposing party. This change was made to clarify the parties' responsibilities to each other and to prevent ex parte communications. In sec.159.13, the adopted section explicitly sets out the scope of prehearing discovery allowed a defendant in ALR cases. Clarification on this issue was requested by almost all commenters. As adopted, the section provides for some prehearing discovery by defendants, but not for all types of discovery allowed under the Government Code, sec.2001. The section also changed "maintenance records" to include repair records as well in response to concerns raised by commenters who believed the original term was too limited. However, a limitation on the volume of the records to be provided was included in answer to those commenters who argued that allowing unlimited access to the intoxilyzer's records would create an unnecessary and unduly expensive burden on the department. SOAH agrees with the commenters who suggested that a 60 day window into the history of a particular intoxilyzer is generally sufficient. If defendant believes further records are required, he may establish good cause and request a subpoena duces tecum for the additional records. In sec.159.15, changes were made to conform the section language to the language of the statute, as urged by some commenters. Subsection (c), relating to the non-admissibility of an affidavit, was corrected to state the affidavit would not be admitted if the witness does not appear at a scheduled hearing "without a showing of good cause." In sec.159.17, changes were made to more closely track the requirement of the Texas APA relating to requests for subpoenas: the requirement that a requestor show good cause for the issuance of a subpoena was inserted in subsection (a)(7) and "if any" was added to the end of subsection (a)(5). In sec.159.19 and sec.159.21, the language relating to the Judge's order at the conclusion of the hearing was changed to be more consistent with the language of the statute dealing with the department's authority to actually suspend the drivers' licenses, and indicates the Judge would grant the department's petition and authorize the department to suspend the driver's license, or deny the petition and order that the department shall not be authorized to suspend or deny the license. In sec.159.19(b)(4), a language change was made to more strictly track the language of the statute. In sec.159.23, a change was made to identify the department's program for testing breath alcohol consistently with the department's rules found at 37 TAC Chapter 19 as the "breath alcohol testing program" and not the breathalyzer program. In subsections (a) and (d) several grammatical and typographical corrections were made. In sec.159.25, changes were made to more specifically define the rights and responsibilities that apply in telephone hearings. In sec.159.27, a change was made to more accurately state what type of action the department would be prohibited from taking against a defendant who prevailed in an administrative license suspension hearing. In sec.159.33(c), a change was made to make the suspension order effective when the Judge signs the default order. This change was made in answer to comments criticizing the proposed five day grace period given to defaulting defendants as opposed to those who appeared and received an adverse ruling. In sec.159.37(a), a change were made to include Article 6687b-2 sec.27(f) pursuant to one commenter's suggestion. In subsection (f), a change was made for correction purposes, i.e. upon payment of the necessary fees, the office would transmit a certified copy of the record, not simply the transcript, to the court and parties. In subsection (h) language was changed to clarify when an appellate court could remand a case to an Administrative Law Judge (ALJ) for taking of additional evidence. In subsection (i), the modifier "A" was placed at the beginning of the sentence and "with the reviewing court" was added at the end to make it consistent with the Government Code, sec.2001.175(c) . The new sections as adopted establish rules of practice and procedure for ALR hearings to be held state-wide before the State Office of Administrative Hearings, pursuant to Articles 6687b-1, 6701l-5 and 6687b-2. Section 159.1 establishes the scope of the chapter. Section 159.3 provides definitions of terms used in the section. Section 159.5 and sec.159.7 set out how ALR cases originate and how the department of Public Safety will receive requests for hearings and thereafter set the hearings. Section 159.9 provides where, when and how the hearings will be conducted as well as how parties are to file pleadings with the office. Section 159.11 provides how continuances may be sought and when they may be granted. Section 159.13 provides the scope of prehearing discovery that is available to defendants in ALR proceedings. Section 159.15 and sec.159.17 specify how defendants may request or subpoena certain witnesses to appear at hearings. Section 159.19 and sec.159.21 provide the specific issues that must be proved in the hearings, depending on the specific statutory violations alleged. Section 159.23 provides how the hearings will be conducted by the Judge, how evidence will be taken and in what form certain evidence may be admissible. It also provides that the Judge will maintain a record of the proceedings. Section 159.25 provides how and when hearings may be conducted by telephone conference. Section 159.27 indicates when defaults may be entered. Section 159.29 provides the possible outcomes or decisions in ALR hearings. Section 159.31 specifies that an ALJ's decision is final and appealable when entered without a requirement for a motion for rehearing. Section 159.33 provides the effective dates of suspensions in cases when no hearing was requested and in cases where hearings were held and orders were issued by a Judge. Section 159.35 provides that generally ALR hearings are open to the public. Section 159.37 sets out the procedures for appealing an ALR decision. Section 159.39 indicates when and how a suspension resulting from an adverse ALR decision may be stayed. Section 159.41 indicates additional SOAH rules of practice that apply in ALR proceedings. Written comments were received by SOAH through September 23, 1994. Written or oral comments were received from the Sunset Valley Police department, the department of Public Safety, the Texas Criminal Defense Lawyers Association, the Texas Safety Association, the National Highway Traffic Safety Administration, Texas Mothers Against Drunk Driving, the Bexar County Breath Testing Program, the Texas District & County Attorneys Association, The Honorable Senator Zaffirini, the Texas Police Association and from Stuart Kinard an attorney in private practice. Following is a summary of the substantive comments. All parties agreed that SOAH's proposed rules setting out the procedures to be used in conducting administrative license suspension hearings were necessary and appropriate. Most commenters generally agreed with the rules as proposed; however, there were several that generated a great deal of commentary; they will be detailed below: COMMENTS RELATING TO sec.159.7: One commenter opposed the section, stating it is unnecessary as the statute gives the department responsibility of receiving hearing requests and scheduling hearings. SOAH disagrees that it should not generally and accurately cover how defendants may request hearings; thus, the section was retained to serve as a context to the remaining sections. COMMENTS RELATING TO sec.159.9: One commenter opposed this provision because it allows hearings to be scheduled at a site other than within 75 miles of the county seat of arrest with agreement of the parties, arguing there is no statutory authority for alternative sites. It also urged that the section explicitly state that conducting the hearing within 40 days of the date the notice of suspension was served is a goal, and not a mandate. SOAH disagrees with the former comment and retained the provision allowing parties to agree upon a site that does not meet the 75 mile restriction, on the basis that parties can waive such a venue requirement. Additionally, the section as adopted indicates the hearing will be scheduled within the allotted 40 day period, but may not be heard within 40 days if continuances are requested and granted. One commenter proposed adding a provision to require the department to coordinate and cooperate with defense attorneys in scheduling hearings. SOAH disagrees with adding such a provision as SOAH has no authority to direct the department's scheduling activities. COMMENTS RELATING TO sec.159.11: One commenter opposed the provision that requires the department to request continuances in writing at least 48 hours prior to a hearing if one or more of its witnesses is not available, arguing the statute gives the department authority to reschedule a hearing if such a situation arises. Further, it argued that if the department is required to seek continuances from SOAH in those instances, it should not have to do so in writing, prior to the hearing; it argued that it should be allowed to seek continuances orally at the hearings. It also suggested that "one or more" be inserted to accurately describe the witnesses whose unavailability could require a continuance. SOAH agrees with the latter suggestion and amended the section accordingly; however, SOAH disagrees with the position relating to the lack of necessity for continuances to be requested in writing. Once a case is before SOAH, all procedural matters requiring exercise of discretion must be presented to the ALJ for decision. Requiring the department to file written requests for continuances simply puts it on a par with what is required of defendants. A provision covering unavoidable circumstances when a written request cannot be filed was included in sec.159.9(f). One commenter urged that not only should the department be required to submit written requests for continuances to SOAH prior to the hearing, but it should also be required to send defendant a copy of request, and should be allowed an opportunity to respond prior to SOAH's ruling on the request. It argued that SOAH rightfully has the duty to decide whether there is good cause to continue a hearing. SOAH agrees with the comment for the most part; however, often neither party may get an opportunity to respond to a request for continuance prior to a ruling because of the short time frames involved in ALR cases; thus SOAH did not include that suggestion. One commenter opposed continuing hearings and allowing defendants a license to drive while hearings are continued. However, this is provided for in the statute. COMMENTS RELATING TO sec.159.13: Several commenters urged adding a statement in this section that depositions are not allowed in order to maintain the expedited nature of ALR adjudications. Commenters argued that if liberal prehearing discovery is allowed, peace officers and criminal prosecutors will forego filing ALR complaints and the program will be thwarted; they argued that information in peace officers' files relating to the criminal prosecutions not be discoverable prior to the ALR hearing. SOAH generally agrees with this comment and the prehearing discovery section does not allow depositions or requests for production by third parties in ALR cases. One commenter also sought clarification about its interpretation that the department was required to open its file for inspection by defendant immediately prior to the hearing. SOAH clarifies the provision to state that the department must furnish discoverable records to defendant within five days of receipt of a written request. The section specifically allows defendant to seek production of documents or records in possession of the department if defendant sends a written request with an amount to cover copying charges. The department is required to send copies of the records to the defendant within five days of receipt of defendant's request. The section also allows defendant to request a subpoena duces tecum for records or items that are necessary and that are in the custody of third parties and by following the same steps outlined in sec.159.17. These changes were urged by commenters who indicated that clarification was needed in order that defense attorneys and the department would know exactly what was required and when, to obtain or furnish information in ALR cases. Some commenters urged SOAH to order third parties in possession of relevant information to produce it to defendant prior to the hearing: SOAH did not follow this suggestion, as it does not believe it has authority to issue such an order. It does, however, have authority to issue subpoenas and it provided a mechanism for defendants to obtain needed evidence in that manner. The same commenters also argued that all prehearing discovery allowed under the Texas Administrative Procedure Act, TAPA, should also be permitted, albeit on an expedited time frame. SOAH disagrees and deviated in this instance from the TAPA, by specifically disallowing depositions and requests for production by third parties in these hearings. If SOAH allowed all the discovery tools provided in TAPA, the result would inevitably be the protraction of ALR proceedings. The legislature has clearly indicated ALR hearings should be conducted as quickly as possible, i.e., ordinarily, within 40 days of the date of arrest. Relating to the requirement in subsection (b) that intoxilyzer records be made available to a defendant who requests them at least three days prior to hearing, one commenter argued that (1) technical supervisors cannot produce the records on such short notice; and (2) all supervisors are not employed by the department and thus it cannot assure that they will produce the records as required or that they will appear at the hearings upon such short notice. That commenter and others also urged that intoxilyzer records for only 30 days prior to the relevant test date and 30 days after the test date should be provided to the defendant. SOAH agrees with the latter point and amended the provision to state that intoxilyzer maintenance and repair records be provided defendant for that 60 day time period. However, SOAH disagrees with the other comments about the problems involved in producing such records prior to the hearing, especially since the section provides that the department is required to respond to defendants' requests within five days of receiving the requests. Furthermore, since the technical supervisors are the department's witnesses, the requirement of ensuring their attendance with necessary records, if appropriate, does not appear to be overly burdensome or unworkable. One commenter also urged that subsection (b) be amended to exclude blood or urine testing equipment, as the laboratories responsible for performing those tests are private and are not regulated by the department. SOAH agrees and limited the records to be furnished by the department to those of instruments used to analyze breath specimens only. Several commenters opposed the prehearing discovery section as proposed, arguing that: (a) the full range of discovery allowed under the TAPA should be available to defendants; (b) severely limiting prehearing discovery would constitute denial of due process; and (c) defendant should be allowed prehearing discovery to learn whether to call certain witnesses or not. SOAH disagrees that all discovery allowed by the TAPA should be available. Article 6687b-1 sec.7(p) provides that SOAH may adopt procedures inconsistent with the TAPA if necessary to expedite the hearings process within the time limits required in the statute. Although the scope of prehearing discovery is limited, the section nevertheless allows defendants sufficient discovery to properly defend against the department's allegations. One commenter inquired into two specific areas involving prehearing discovery. First, relating to subsection a, when would the department be required to open its file to defendant? It suggested the department be required to furnish copies of documents in its file at least five days prior to hearing. SOAH agrees the department should disclose information in its file prior to the hearing date, and has specified the time within which the information should be supplied. Second, relating to subsection (b), as to documents or evidence not in the department's possession, may an ALJ order third parties to produce documents or evidence that are relevant to the ALR proceeding? The commenter argued the section should explicitly cover this situation as it is very likely that third parties, e.g., a local police agency may have evidence that defendant would need to properly defend in the ALR case. SOAH agrees in part with the latter comment and included a provision covering defendants' right to subpoena third parties who have relevant evidence to produce it at the hearing, upon a showing of good cause. SOAH disagrees with the suggestion that discovery orders to third parties to produce evidence prior to the hearing should be issued, as SOAH may have no authority over those third parties. With regard to the penalty for the department's failure to produce documents or records to the defendant upon request, one commenter suggested that barring the department from introducing such information into evidence was not a sufficient deterrent and recommends harsher penalties, e.g., case dismissal in egregious circumstances. SOAH disagrees that the penalty is inadequate and did not follow the commenter's recommendation. ALR proceedings are not criminal in nature and the penalty provided, exclusion of such evidence, is suitable in an administrative action. Several commenters also argued that discoverable information relating to the intoxilyzer should be broadened from "maintenance records" to include other important information, such as a summary of all maintenance performed on the instrument since its installation and forward and a summary of all breath tests performed by the instrument since its installation that did not produce a result considered valid and a summary of all operator errors recorded by the instrument since its installation, etc. In sum, the commenters urged that defendant be allowed to discover any evidence relating to a particular intoxilyzer. SOAH disagrees with the suggested broadening of scope in this instance. While SOAH agrees that maintenance and repair records of the intoxilyzers should be available for defendant's use, it also believes that they need not be for an unlimited period. SOAH believes that records covering a period of 60 days as previously stated would adequately indicate the instrument's accuracy and reliability or lack thereof. Allowing the comprehensive records as requested would unduly burden the department, and would very likely enlarge the prehearing discovery period and the 40 day period allowed for the conduct of hearings. One commenter also urged uniformity in the language relating to deadlines, either "working days" or simply "days." SOAH agrees and amended the section to delete the modifier "working" before "days" in all discovery filing deadlines set by SOAH. One commenter argued that discovery and continuances would lead to postponement of suspensions, thus circumventing the intent of the ALR law, which is to expedite suspensions. SOAH disagrees: the statute allows for certain discovery and continuances, and the section is consistent with the statutory provisions. Several commenters indicated that information concerning the reliability of the intoxilyzer would be relevant and should be admissible but limited in terms of the time frame covered by the records. They also stated that the arresting officer would be a necessary witness, if the issue of probable cause were raised. One commenter indicated that in his jurisdiction, police officers are not served personally with subpoenas, but rather subpoenas are received on behalf of police officers by a designated officer who ensures the subpoenas are delivered to the appropriate parties. It was his belief that most large police organizations have such a system in place to receive subpoenas. SOAH agrees with these comments and included provisions that are generally consistent with the points made. COMMENTS RELATING TO sec.159.15: Several commenters urged that the provision relating to inadmissibility of a witness affidavit be corrected to state the affidavit will be inadmissible if a witness failed to appear without a showing of good cause as indicated in the statute. SOAH agrees and incorporated the change. Another commenter argued that peace officers, breath test technician or technical supervisors should not have to appear at ALR hearings unless defendant's subpoena them. The commenter further urged that whoever requests and gets a subpoena issued should pay the witness fees, but that if a defendant wins, the State should pay the fees. SOAH disagrees with commenter's former recommendation because it is inconsistent with the statute. SOAH agrees with the later suggestions that are consistent with TAPA and incorporated them, but disagrees with those that are not, e.g., that if defendant wins, the State should pay witness fees, as there is no authority for such provision in the law. COMMENTS RELATING TO sec.159.17: A number of commenters urged that subpoenas should be personally served on peace officers because if not, officers would probably not learn of a hearing until after the hearing date. Other commenters argued that it would be impractical to effect personal service on police officers because their addresses are protected from public disclosure and that they spend much of their time in patrol cars performing their duties. In addition, they argued that metropolitan police departments had liaison officials who routinely received subpoenas on behalf of police officers on the force. Those arguing for personal service stated that police officers could be personally served at their places of employment before their shifts or at the end of their shifts. They also argued that the Rules of Civil Procedure made no allowance for other than personal service when requiring a witness to appear at a trial or hearing and argued that SOAH should act consistently with those rules. SOAH agrees that the Rules of Civil Procedure require personal service of subpoenas to compel the attendance of witnesses, and although defendants may encounter difficulties in effecting personal service on police officers, SOAH does not believe it should deviate in this instance from the established rules of procedure set out by the State. However, SOAH believes that if established and accepted procedures for serving police officers exist in particular jurisdictions, and the parties agree to abide by them, that subpoenas in those localities may be served according to those procedures. One commenter urged the mileage rate be increased to reflect the current State mileage rate (28 cents per mile) as ten cents is too low; he argued that a requestor should be required to pay for the actual cost of travel. SOAH disagrees with the suggestion to increase the mileage rate and did not incorporate it as the rate in the section is in accordance with the TAPA. The requirement that a requestor show good cause for the issuance of a subpoena was inserted in subsection a(7) in order to be consistent with the TAPA, and "if any" was added to the end of subsection a(5). Some commenters suggested that defendants should not have to disclose why a witness is needed because such disclosure (1) is a violation of the attorney work-product privilege; and (2) violates due process because it forces defendant to disclose his theory of the case. The commenters suggested that issuance of a subpoena should be a ministerial task and that a Judge should only exercise his discretion when deciding a motion to quash. SOAH disagrees. The TAPA provides the procedures for obtaining a subpoena, and those procedures are generally followed in this section. In sec.159.19 and sec.159.21, one commenter argued that the language relating to the Judge's order at the conclusion of the hearing should be changed to be more consistent with the language of the statute dealing with the department's authority to suspend the drivers' licenses. SOAH agrees and incorporated language to indicate that the Judge's order would authorize the department to suspend or deny the drivers' licenses, etc. In addition, sec.159.19(b)(4) was changed to more strictly track the language of the statute. Changes were also made to sec.159.21 relating to issues involved in Commercial Drivers License (CDL) cases in response to several commenters who indicated the section as written could have an unintended adverse effect on the State's eligibility for federal funds. To avoid the confusion, subsection (a) was deleted. Subsections (b) and (c) were relabeled accordingly. New subsection (a) was amended to include that a urine test could also be offered to a defendant in a CDL case. The department will proceed under sec.159.19(a) in those instances when it wishes to suspend a defendant's CDL who had a BAC of .10 or greater. As a result of the change made in sec.159.21, a change was also made in the definition of "intoxicated" in sec.159.3, that is, the reference to the .04 breath alcohol concentration (BAC) provided for in the CDL statute was deleted. If a defendant is to be disqualified from operating a commercial motor vehicle for driving with a .04 BAC, the action will be instituted only under the new sec.159.21(a). COMMENTS RELATING TO sec.159.23: One commenter requested a change be made to accurately identify the department's program for testing breath alcohol with the department's rules found at 37 TAC, Chapter 19, as the "breath alcohol testing program" and not the breathalyzer program. SOAH agrees and made the requested amendment. One commenter argued that an affidavit from a defense expert should be admissible without any qualifications or conditions pursuant to subsection (7) (m) of statute. SOAH disagrees with this interpretation of the statute and declines to incorporate the suggested change. In section 159.23(a), a typographical correction was made. In subsection (c) (3), reference to breathalyzer program was corrected to the "breath alcohol testing program" as mentioned previously. In addition, subsection (c)(6) was changed to include additional language which better describes the meaning of the sworn report to be filed by the arresting officer, and deleted the term, "probable cause affidavit," as that term was not previously defined. In subsection (d), several grammatical corrections were made. COMMENTS RELATING TO sec.159.25: A change was made to more accurately define the rights to which a defendant is entitled during telephone hearing as requested by one commenter. Additionally, several logistical details were also added. COMMENTS RELATING TO sec.159.27: Two commenters suggested a change be made to more accurately state what type of action the department would be prohibited from taking against a defendant who prevailed in an administrative license suspension hearing, i.e., the department shall not be authorized to suspend or deny defendant's license for the conduct at issue. SOAH agrees with the suggested language. COMMENTS RELATING TO sec.159.33(c): A change was made to make the suspension order effective when the Judge signs the default order. This change was made to answer a number of comments criticizing the proposed five day grace period given to defaulting defendants as opposed to those who attended a hearing and received an adverse ruling. SOAH agrees with the comments and incorporated the suggested change. One commenter suggested language indicating that a defendant should be allowed to keep his license if he shows the Judge that he intends to file an appeal of the administrative decision. SOAH disagrees with this suggestion as it does not believe the ALR statute contemplated such action. COMMENTS RELATING TO sec.159.37(a): A change was made to incorporate Article 6687b-2 sec.27(f), related to CDL cases, into the appeal section, as suggested by one commenter. In subsection 159.37(f), a change was made for correction purposes, i.e. upon payment of the necessary fees, the office would transmit a certified copy of the record to the court and parties, not simply of the transcript. In subsection (h), language was changed to clarify when an appellate court could remand a case to an ALJ for taking of additional evidence, as urged by one commenter. In subsection (i), the modifier "A" was placed at the beginning of the sentence, and "WITH THE REVIEWING COURT" was added at the end of the subsection to make it consistent with the Government Code, sec.2001.175(c). COMMENTS RELATING TO sec.159.41: A change was made to incorporate a reference to a newly adopted office rule, sec.161 relating to cost of copies, into subsection (a) of the section. The new chapter is adopted pursuant to Texas Civil Statutes, Article 6687b-1, sec.9 and Article 6701l-5, sec.4A, which authorize SOAH to adopt rules necessary to administer the ALR statute. The following statutes are affected by this adopted chapter: Texas Civil Statutes, Articles 6701l-5, 6687b, 6687b-2, the Texas Government Code, Chapters 2001 and 2003 and Penal Code Chapter 49. sec.159.3. Definitions. (a) In this chapter, the following terms have the meaning indicated: (1) Administrative Law Judge or Judge-Means 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-Ppursuant to Texas Civil Statutes, Article 6687b-1 means 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 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 C.F.R. 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.27. (10) Defendant-One who holds a license as defined in paragraph (17) 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. (11) Denial-As provided in Texas Civil Statutes, Article 6687b, sec.4, means the non-issuance of a license or permit, and loss of the privilege to obtain a license or permit. (12) Department-The Department of Public Safety. (13) Disqualification-As defined in Texas Civil Statutes, Article 6687b-2, sec.3(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. (14) Driver-A person who drives or is in actual physical control of a motor vehicle. (15) 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.27 to issue final decisions in drivers' license suspension cases. (16) 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, or the level as may be specified in the Texas Penal Code Chapter 49.01. (17) 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. (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 person elected, employed, officer under Article 2.12, Code of Criminal Procedure, or other law. 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; or (C) one or more specimens of a person's urine 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 sec.155.3 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.159.7. 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 fifteen 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 no more than 75 miles from the county seat of the county of arrest. However, if the arrest was in a county with a population of 300,000 or more, the hearing will be held in 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. Generally, 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) In most instances, the hearing will be held within the 40 day period, unless a continuance is requested and granted as provided in the following section. (f) After a hearing has been scheduled to be heard by the Office, any party making a request that requires an interim order, e.g., continuance, subpoena, etc., must do so in writing to the Judge hearing the case, with a copy to opposing party. Such written requests must be filed at least five days prior to the scheduled hearing date, unless another time limit is specified in these rules or unavoidable circumstances prevent compliance with such time limits. A party claiming unavoidable circumstances, must set them out in the written request. sec.159.11. Continuances. (a) A continuance granted pursuant to this section 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 one or more witnesses indicated in sec.159.15(a) or sec.159.17(c) are not available; or (2) after a continuance as indicated in subsection (d)(1), 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 one or more witnesses indicated in sec.159.15(a) or sec.159.17(c) 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 expedite the hearings whenever possible. sec.159.13. Pre-Hearing Discovery. The scope of pre-hearing discovery in these proceedings is as follows: (1) A defendant shall be allowed to review, inspect and obtain copies of any non-privileged documents or records contained in the department's file or possession at any time prior to the hearing. If defendant submits a written request accompanied by an amount sufficient to pay for copying charges, (the department shall promptly notify defendant of the copying charges due), the department shall furnish copies of such documents or records to the defendant within five days of receipt of the request. 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 introduced into evidence by the department. (2) If a request for maintenance and/or repair records for the instrument used to test the defendant's specimen is made by the defendant, the department shall supply such records to the defendant within five days of receipt of the request, provided however that the records to be provided shall be for the period covering 30 days prior to the test date and 30 days following the test date. (3) Depositions shall not be permitted in ALR proceedings. (4) Notwithstanding paragraph 1, if a party believes evidence from a third party is relevant and probative to the case, the party may request issuance of a subpoena duces tecum pursuant to sec.159.17 to have the evidence produced at the hearing. Should introduction of such evidence require special equipment, the party seeking admission of the evidence shall be required to supply such equipment. sec.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 operator who administered the test and obtained the defendant's specimen to determine the level of alcohol concentration in the defendant'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, without a showing of good cause, an affidavit of such witness shall not be admissible as provided in sec.159.23(c)(2). 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 indicating good cause why the expected testimony or evidence to be obtained through the witness and/or documents is relevant and necessary to the issues involved in the hearing; 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 Rule 178 of the Texas Rules Civil Procedure, except that a subpoena to a peace officer may be served in accordance with accepted alternative procedures, if any, that may be established by particular law enforcement agencies relating to service of subpoenas on law enforcement officers within those agencies. (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) good cause has not been shown that the witness or documents 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: (1) If the hearing is under Texas Civil Statutes, Article 6687b-1, sec.7, (test failed): (A) did reasonable suspicion to stop and/or probable cause to arrest the person exist; and (B) did the person have an alcohol concentration of 0.10 or greater as specified in Penal Code sec.49.01(2), while driving or in actual physical control of a motor vehicle in a public place? (2) If the hearing is under Texas Civil Statutes, Article 6701l-5, sec.2, (test refused): (A) did reasonable suspicion to stop and/or probable cause to arrest the person exist; and (B) 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 (C) was the person placed under arrest and offered an opportunity to give a specimen under Texas Civil Statutes, Article 6701l-5; and (D) did the person refuse to give a specimen on proper request of the officer? (3) If the Judge finds the department proved each of the required elements by a preponderance of the evidence, the Judge will grant the department's petition and authorize the department to suspend or deny the license. 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. sec.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: (1) If the hearing is under Texas Civil Statutes, Article 6687b-2, sec.27, (test failed or refused): (A) 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 (B) was the person offered an opportunity to give a breath, blood, or urine specimen under the provisions of Texas Civil Statutes, Article 6687b-2, sec.27; and (C) 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? (2) If the Judge finds the department proved each required element by a preponderance of the evidence, the Judge will grant the petition and authorize the department to disqualify the defendant 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 disqualify a defendant from driving a commercial motor vehicle. sec.159.23. Hearing. (a) Procedures (1) Hearings shall be conducted in accordance with 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 provisions of this chapter and Texas Civil Statutes, Articles 6687b- 1, 6701 l-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 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 Breath Alcohol Testing program. (4) Notwithstanding subsection (2) of this section, 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 subsection (2) of this section, an affidavit of an expert witness contesting the reliability of the instrument or the results shall also be admissible. (6) A peace officer's sworn affidavit concerning probable cause to arrest 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. 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, to properly safeguard the right to cross examination and to record the testimony in its entirety. (d) Record of hearing (1) The Judge shall maintain an accurate and complete tape-recording of the oral proceedings of the hearing; and (2) The Judge shall maintain a case file which shall include all 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 and if the office has been notified of a telephone hearing request at least 14 days prior to the hearing date, 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) Procedural Rights and Duties. All rights available to a defendant at an in-person hearing under the ALR program apply to telephone hearings, subject only to the limitations of the physical arrangement. The department shall notify the parties of the scheduled phone hearing and the parties shall contact their respective witnesses to ensure their availability for the hearing. (c) Documentary evidence. To be offered in a telephone hearing, tangible/documentary evidence must be marked and filed with the office and all parties at least five days prior to the scheduled hearing, but in no event 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.159.29. Hearing Disposition. (a) If the Judge finds that the department proved the requisite facts as specified in sec.159.19 or sec.159. 21 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 suspend or deny defendant's license for the conduct at issue. (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.159.33. Effective Date of Suspensions. (a) If a hearing is not timely requested, the effective date of the suspension is the 40th 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. Upon entry of the order, the department's representative shall be entitled to request surrender of the license by defendant. (c) If a default order is issued against the defendant, the department's right to suspend or deny defendant's driving privilege is effective immediately. (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.159.37. Appeal of Judge's Decision. (a) Pursuant to Texas Civil Statutes, Article 6687b-1, sec.7(g), Article 6701l-5, sec.4, or Article 6687b-2 sec.27(f), 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, 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 record. (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 remand the case with instructions that the additional evidence be taken before a Judge on conditions determined by the court. (i) A Judge may modify a prior determination as to whether the person had an alcohol concentration of a level specified in Penal Code sec.49.01(2), by reason of the additional evidence. The Judge shall file the evidence and any modifications with the court. (j) A remand under this section does not stay the suspension of a driver's license. sec.159.41. Other Office Rules of Procedure The following Office rules of procedure found at 1 TAC sec.155, sec.157 and sec.161 shall apply in contested cases under this chapter: (1) sec.155.17-Refusal 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; and (6) sec.157.1-Temporary Administrative Law Judge; (7) sec.161.1-Charges for copies of public records 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 December 9, 1994. TRD-9452170 Shelia A. Bailey Deputy Chief Administrative Law Judge State Office of Administrative Hearings Effective date: December 30, 1994 Proposal publication date: August 5, 1994 For further information, please call: (512) 475-4993 TITLE 7. BANKING AND SECURITIES Part II. Texas Department of Banking Chapter 25. Prepaid Funeral Contracts Subchapter A. Applications for License 7 TAC sec.25.1, sec.25.2 The Banking Department of Texas (the "Department") adopts the repeal of sec.25.1 and sec.25.2, concerning the application for license, without changes to the proposed text as published in the September 13, 1994, issue of the Texas Register (19 TexReg 7169). New sec.sec.25.1-25.6 are proposed for adoption in this issue of the Texas Register and will promote uniformity and clarity in contract terms consistent with Texas Civil Statutes, Article 548b, as amended. No comments were received regarding adoption of the repeals. The repealed sections were rendered obsolete by legislative amendments to Texas Civil Statutes, Article 548b, effective September 1, 1993, and are repealed pursuant to the Department's rulemaking authority under Texas Civil Statutes, Article 548b, sec.2, authorizing the Department to write rules concerning "matters incidental to the enforcement and orderly administration" of Texas Civil Statutes, Article 548b. 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 December 14, 1994. TRD-9452450 Everette D. Jobe General Counsel Texas Department of Banking Effective date: January 4, 1995 Proposal publication date: September 13, 1994 For further information, please call: (512) 475-1300 7 TAC sec.sec.25.1-25.6 The Banking Department of Texas (the "Department") adopts new sec.sec.25.1-25. 6, concerning requirements for approval of prepaid funeral benefits contracts. Sections 25.1, 25.2, 25.4, 25.5, and 25.6 are adopted with changes to the proposed text published in the September 13, 1994, issue of the Texas Register (19 TexReg 7169). Section 25.3 has been adopted without changes and will not be republished. The Department has adopted new sec.sec.25.1-25.6 to bring existing rule requirements into conformity with legislative amendments to Texas Civil Statutes, Article 548b, effective September 1, 1993, and to promote clarity and consistency in contract terms. Changes made to the text on adoption merely enhance the organization and clarify the meaning or intent of the sections and are not substantive in nature. These changes make it clear that decreasing term life insurance is excluded from the price at which the provider agrees to furnish benefits; that the entire prepaid funeral benefits agreement may consist of a single document; that the entire agreement includes any separate agreement for the irrevocable assignment of life insurance or annuity benefits; that certain disclosures are not required; that finance charges and charges for credit or decreasing term life insurance are excluded from funds collected from the purchaser which must be deposited, from the amount of permissible retainage and from the amount of payments returned to a purchaser who cancels the contract during the first year; that the contract must state the address and toll-free telephone number of the Texas Department of Insurance; and that the insurance- funded contract furnished to the purchaser at the time of purchase will not have been executed by the insurer. In addition, the adopted rules clarify definitions of certain terms used in the contract as well as provisions regarding the Texas Department of Insurance's policy approval process. Five speakers commented on various provisions of the proposed new sections at a public hearing held on October 17, 1994. In addition, the Department received seven sets of written comments. Numerous comments were made with respect to the highly technical content of the prepaid funeral contract. However, no comment expressly stated that its author was for or against the rule as a whole. The following comments resulted in changes to the adopted sections: 1. An individual commenting on behalf of Simplicity Plan of Texas, Inc. ("Simplicity") objected to including various successors in the definitions in sec.25.1(b) and (c); an individual commenting on behalf of South Texas Bankers Life Insurance Company and South Texas Bankers Life Insurance Agency ("South Texas") requested that the meaning of sec.25.4(6) be clarified to avoid conflict with other provisions relating to successors; and an individual commenting on behalf of the Office of the Public Insurance Counsel ("OPIC") objected to the definitions of "seller or provider" and "purchaser" in sec.25.1 as unclear. After the Department examined these comments carefully, references to successors were omitted from the definitions in sec.25.1 and the meaning of sec.25.4(6) was clarified. 2. At the request of Simplicity, the definition of "entire agreement" in sec.25.2(a)(13) was clarified to show that such agreement may consist of a single document and that it includes a separate agreement, if any, for the irrevocable assignment of life insurance or annuity benefits. 3. South Texas and Simplicity requested that sec.25.2(a)(16), providing for tax disclosure in the contract, should be deleted; South Texas alternatively proposed that any type of tax disclosure in the contract should be amended to prescribe disclosure language. The tax disclosure provision was deleted. 4. At the request Simplicity, the requirements of sec.25.2(a)(17) pertaining to the furnishing of price lists and the publication of the Texas Funeral Service Commission to a purchaser were stricken. 5. OPIC asked that the contract contain the address and toll-free consumer telephone number of the Texas Department of Insurance. This requirement is now imposed in sec.25.2(a)(18) of the adopted sections. 6. Simplicity requested that decreasing term life insurance be excluded from the price described in sec.25.2(a)(9) and, further, that sec.25.4 provide for the exclusion of finance charges and charges for credit or decreasing term life insurance from the amount of funds collected from the purchaser which must be deposited, from the amount of permissible retainage, and from the amount to be paid to the purchaser in the event of cancellation during the first year of the contract. These exclusions were made according to the requests. 7. An individual commenting on behalf of Directors Investment Group, Inc., Funeral Directors Life Insurance Company, Texas Directors Life Insurance Company, Funeral Agency, Inc., and Directors Succession Planning, Inc.; an individual commenting on behalf of Sneed, Vine, Wilkerson, Selman & Perry, P.C. ; an individual commenting on behalf of Funeral Directors Life Insurance Company; and South Texas each requested the deletion from sec.25.5(b) of the provision relating to the Texas Department of Insurance's approval of policies for sale "in conjunction with" the sale of contracts and requested that a phrase such as "or is exempt from review" be added to the end of that subsection. These changes were made according to the requests. 8. At the request of South Texas, sec.25.6(a)(1) was amended to clarify that the insurer will not have executed the insurance-funded contract furnished to the purchaser under that paragraph. The proposed sections also received certain comments which, after through examination, the agency rejected without making the requested changes to the proposed sections. 1. A representative of Forethought Life Insurance Company commented in writing that sec.25.3(2) should be amended to permit the partial cancellation of the insurance policy funding the contract as well as loans against the policy and should require disclosures as to the consequences of these actions. The Department disagrees with this analysis: Texas Civil Statutes, Article 548b, sec.5(b)(1) prohibits both partial cancellations of contracts and withdrawals from contract funding. A partial cancellation of or loan against the policy would result, in effect, in partial cancellation of the contract or a "withdrawal" of contract funding, respectively, and therefore is also prohibited. 2. The Department also rejected a comment from Simplicity requesting the deletion of sec.25.4(4), which requires the contract to note whether it is funded with 100% (Plan I) or 90% (Plan II) of the purchaser's payments under the contract. Simplicity objected to this requirement as redundant since sec.25. 4 also requires the contract to state this same information in greater detail. However, a notation on the contract will expedite the Department's handling of certain consumer inquiries and complaints and therefore will assist the Department in its administration of the Act, which is an appropriate use of the Department's rulemaking powers. 3. Simplicity also requested the Department to delete sec.25.4(6) which provides that use of a successor provider is a cancellation of the original contract by the purchaser unless the seller/provider agrees otherwise. Simplicity argued that, since sec.25.2(a)(13) makes the contract binding upon the "successors" of the parties, sec.25.4(6) is in direct conflict with sec.25. 2(a)(13). Although the Department has modified sec.25.4(6) for clarification, it rejects Simplicity's argument: with the agreement of all parties (the successor/provider and the purchaser) to the purchaser's selection and use of a different provider, the contract can be modified under the terms of sec.25. 2(a)(13). 4. Finally, Simplicity commented that sec.25.5(e) should be deleted. Section 25.5(e) states that, in approving contract forms, the Department does not represent that the forms comply with Federal Trade Commission requirements. Simplicity argued that, since the Department has no authority over matters within the jurisdiction of the Federal Trade Commission, this disclaimer is meaningless. The Department disagrees and, by this provision, puts industry on notice that it bears full responsibility for ascertaining whether or not contract forms approved by the Department comply with Federal Trade Commission requirements. The adoption of new sec.sec.25.1-25.6 is pursuant to the Department's rulemaking authority under Texas Civil Statutes, Article 548b, sec.2, which authorizes the Department to write rules concerning "matters incidental to the enforcement and orderly administration" of Texas Civil Statutes, Article 548b, and rules concerning "fees to defray the cost of administering" Texas Civil Statutes, Article 548b. sec.25.1. Definitions. (a) "Prepaid funeral benefits contract" means any written contract or agreement, whether funded by insurance policies or annuity contracts, referred to in this section as "policies" or "insurance policies," or by trust deposits, which has for its purpose the furnishing or delivery of prepaid funeral benefits in connection with the final disposition of a human corpse at a time determinable by the death of such person. (b) "Seller" or "Provider," as used in this rule, refer to the seller or to the provider of an insurance-funded contract, respectively, or to the seller/provider of a trust-funded contract. (c) "Purchaser," as used in this rule, refers to the purchaser of the prepaid funeral contract. sec.25.2. All Prepaid Funeral Contracts. (a) Content Requirements. Each contract submitted to the Department of Banking (the "Department") for approval as required by Texas Civil Statutes, Article 548b, sec.2, must contain the following: (1) Contract Number-a place for the contract number; (2) Seller's Name, Address and Signature-a place for the seller's name and address and for the signature of the seller's authorized representative; (3) Permit Number-a place for the seller's permit number; (4) Purchaser's Name, Address and Signature-a place for the purchaser's name, address and signature; (5) Provider's Name, Address and Signature-a place for the provider's name and address and for the signature of the provider's authorized representative, if the provider is different from the seller. If the provider and seller are the same entity, acknowledgement of dual identity, e.g., through reference to the "seller/provider," eliminates the need for duplication of information, signatures and contractual provisions in the separate capacities of provider and seller; (6) Funeral Merchandise-a place that sets out the particulars of the funeral merchandise offered for sale under the contract which shall include a description of the casket and specifications of the material used in the construction of the casket as well as the specifications of the grave vault used; (7) Professional Services-a place to set forth the particulars of the professional services to be performed and the funeral home facilities to be provided; (8) Terms of Payment-a place to set out the terms of payment; (9) Provider's Agreement-a statement that the provider agrees to furnish the described prepaid funeral benefits specified in the contract, or their equivalent in quality, for a price not to exceed the contract price for funeral merchandise and professional services, excluding any finance charges and charges for credit or decreasing term life insurance, at an undetermined future date dependent on the death of the person designated by the purchaser to receive the prepaid funeral benefits; (10) Default or Cancellation-provisions setting out rights and obligations of the parties, including the benefits to which the purchaser is entitled, if the purchaser fails to make payments in accordance with the terms of the contract or if any party cancels the contract; (11) Outstanding Payments at Time of Death-a description of the purchaser's financial obligations, if any, and the terms thereof if the contract price is not paid in full on the death of the person designated by the purchaser to receive the prepaid funeral benefits; such provision shall include a statement of rights of the parties if the contract is funded by an insurance policy featuring a limited death benefit period which has not matured at the time of death; (12) Change of Address-a statement that each party to the contract will notify the other parties to the contract of any change in that party's address; (13) Acceptance/Modification of Contract; Entire Agreement -statements that the contract and any separate agreements to irrevocably waive the right to cancel the contract, to irrevocably assign life insurance or annuity benefits, and to pay finance charges constitute the entire agreement; that, the contract is binding when accepted by a duly authorized representative of the seller; that, except as specifically provided otherwise therein, the contract can be modified only by written supplement signed by the seller, provider and purchaser; and that the contract shall be binding upon the successors, assigns, beneficiaries, heirs, and legal representatives of all the parties; (14) Distribution of Copies-a statement or notation indicating that the seller will receive the original of the executed contract with a copy to the purchaser, the provider, and, if the contract is funded by an insurance policy, the insurance company writing the policy; (15) Finance Charge-a reference to any provision for the purchaser's payment of a finance charge on any amount due and owing on the contract to the seller and a statement of the terms of such provision. A contract that establishes a finance charge must be made in accordance with Texas Civil Statutes, Article 5069-6.01 et seq, and adhere to requirements for retail installment contracts established therein and in rules, if any, of the Office of Consumer Credit Commissioner that now exist or may hereafter be adopted; (16) Purchaser's Receipt of Contract-a statement that the purchaser has received a copy of the contract at the conclusion of the discussion of arrangements, if prepaid funeral merchandise or services are purchased; (17) Approved Contract Form-a statement that the contract form has been approved by the Department; (18) Agency Addresses-the complete mailing address and telephone number of the Texas Funeral Service Commission, the Texas Department of Banking and, if the contract is funded by an insurance policy or annuity, the Texas Department of Insurance. The telephone number of the Texas Department of Insurance shall be its toll-free consumer number; and (19) Other Required Statements-any other statements or disclosures required by law. (b) Prohibitions. No contract submitted to the Department for approval shall designate more than one person to receive funeral benefits under that contract; however, a purchaser may change this designation in a trust-funded contract at any time during his or her lifetime and may change it in an insurance-funded contract as the insurance contract or insurer may permit. sec.25.4. Trust Funded Contracts. In addition to the contents specified in sec.25.2 of this chapter, each prepaid funeral contract submitted for approval by the Department that is funded by a trust as provided in Texas Civil Statutes, Article 548b, sec.1(a), must contain the following: (1) Deposit of Purchaser's Payments-a statement that, within thirty days of collection, the seller/provider will deposit the funds collected from the purchaser, less any retainage, finance charges, and charges for credit or decreasing term life insurance, in a depository within this state that has been approved by the Department; and (2) Seller/Provider's Retention of Monies Received -a statement that the seller/provider plans to retain one-half of the funds collected (excluding any finance charges and charges for credit or decreasing term life insurance) not exceeding ten percent of the total amount of the contract, if the seller/provider intends to retain such funds; and that the purchaser who cancels the contract during the first year at a time when contract payments are current will receive 90% of the amounts paid in by the purchaser (excluding any finance charges and charges for credit or decreasing term life insurance) or the amounts deposited in trust under the contract, whichever is greater, if the seller/provider intends to retain the balance of such funds; (3) Irrevocable Waiver of Cancellation-a notice that the purchaser may irrevocably waive and renounce the right to cancel the contract by executing a written waiver; (4) Plan I or II-a notation that the trust is funded with 100% (Plan I) or 90% (Plan II) of the purchaser's payments under the contract; (5) No Partial Cancellations of Contract-an acknowledgement that neither the purchaser nor the seller/provider may make partial cancellations of the contract; and (6) Use of Different Provider-a disclosure that, unless the seller/provider agrees otherwise, the purchaser's use of a provider that is not named in the original contract is a cancellation of the original contract by the purchaser. sec.25.5. Filings and Review. (a) All Proposed Contracts. To request approval of any prepaid funeral contract, the seller must submit a copy of the proposed contract to the Department and request its approval. All proposed contracts, together with the irrevocable waiver of cancellation and separate finance charge agreement, if any, must be submitted to the Department for approval prior to use. (b) Insurance-Funded Contracts. If a contract will be funded by insurance, the seller must furnish a copy of the proposed contract and the seller's request for approval together with written evidence from the Texas Department of Insurance that the policy which will fund such contract has been approved or is exempt from approval. (c) Standardized Forms; Review Costs. The Department will provide copies of preapproved contract forms to sellers on request. If the Department's review of a form submitted for approval exceeds one hour, the Department will bill the seller at the rate of $50 per hour to defray the cost of review. (d) Disclaimer. In approving a contract as to form, including the Department's standardized contract, the Department makes no representation that the form complies with Federal Trade Commission requirements. sec.25.6. Distribution of Contract Copies. (a) By All Sellers. (1) To Purchasers. At the conclusion of a discussion about funeral arrangements, the seller of a trust-funded or insurance-funded contract must furnish the purchaser of the prepaid funeral contract a copy of the contract, if prepaid funeral merchandise or services are purchased. The insurer will not have executed the insurance-funded contract furnished to the purchaser of such contract at this time. (2) To Third-Parties. On or before the 30th day after contract execution, the seller must furnish a copy of the prepaid funeral contract to a third-party funeral provider or administrator. (b) By Sellers of Insurance-Funded Contracts. (1) To Purchasers. On or before the 30th day after a seller's execution of the contract, the seller of an insurance-funded contract must provide a purchaser with a copy of the executed prepaid funeral contract. (2) To Insurers. On or before the 30th day after a seller's execution of the contract, the seller of an insurance-funded contract must furnish a copy of the executed prepaid funeral contract to the insurance company issuing the policy that funds the contract. 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 December 14, 1994. TRD-9452451 Everette D. Jobe General Counsel Texas Department of Banking Effective date: January 4, 1995 Proposal publication date: September 13, 1994 For further information, please call: (512) 475-1300 Part VII. State Securities Board Chapter 115. Dealers and Salesmen 7 TAC sec.115.3 The State Securities Board adopts an amendment to sec.115.3, concerning partial waiver of dealer examination requirements for certain certified financial planners. The rule is adopted without changes to the proposed text as published in the August 30, 1994, issue of the Texas Register (19 TexReg 6813). The amendment reflects the change in the name of the International Board of Standards and Practice for Certified Financial Planners, Inc. to the Certified Financial Planner Board of Standards, Inc. The terminology used in the rule will be accurate. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 581, sec.28-1. Section 28-1 provides the Board with the authority to adopt rules and regulations necessary to carry out and implement the provisions of the Securities Act, including rules and regulations governing registration statements and applications; defining terms; classifying securities, persons, and matters within its jurisdiction; and prescribing different requirements for different classes. 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 December 16, 1994. TRD-9452545 Denise Voigt Crawford Securities Commissioner State Securities Board Effective date: January 6, 1995 Proposal publication date: August 30, 1994 For further information, please call: (512) 305-8300. TITLE 22. EXAMINING BOARDS Part IV. Texas Cosmetology Commission Chapter 83. Sanitary Rulings 22 TAC sec.sec.83.3, 83.5, 83.14, 83.17, 83.18, 83.23, 83.26 The Texas Cosmetology Commission adopts amendments to sec.83.3, concerning proper quarters; sec.83.5, concerning waste and refuse; sec.83.14, concerning definition of wet, disinfectant soaking container; sec.83.17, concerning instruments and supplies; sec.83.18, concerning sanitation requirements for independent contractors; sec.83.23, concerning personal hygiene; sec.83.26, concerning hairgoods and related equipment, without changes to the proposed text as published in the October 21, 1994, issue of the Texas Register (19 TexReg 8340). These rules are being amended to clear up confusing terminology and clearly establish the intent of the rules. These rules define procedures for sanitation. No comments were received regarding adoption of the amendments. The amendments are adopted under Texas Civil Statutes, Article 8451a, sec.4(e), which provides the Texas Cosmetology Commission with the authority to establish sanitation rules designed to prevent the spread of infectious or contagious diseases. 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 December 16, 1994. TRD-9452536 Dick G. Strader Executive Director Texas Cosmetology Commission Effective date: January 6, 1995 Proposal publication date: October 21, 1994 For further information, please call: (512) 454-4674 22 TAC sec.sec.83.13, 83.15, 83.16, 83.22, 83.25 The Texas Cosmetology Commission adopts amendments to sec.83.13, concerning implements, combs, brushes, and rollers; sec.83.15, concerning disinfecting facial implements; sec.83.16, concerning disinfecting manicure instruments while in use on client; sec.83.22, concerning infectious disease; and, sec.83.25, concerning arresting bleeding, with changes to the proposed text as published in the October 21, 1994, issue of the Texas Register (19 TexReg 8340). The rules are being amended to clear up confusing terminology and clearly establish the intent of the rules. These rules define the procedures for sanitation. No comments were received regarding adoption of the amendments. The amendments are adopted under Texas Civil Statutes, Article 8451a, sec.4(e) which provides the Texas Cosmetology Commission with the authority to establish sanitation rules designed to prevent the spread of infectious or contagious diseases. sec.83.13. Implements, Combs, Brushes, and Rollers. (a) Each cosmetologist is required to have implements and tools that have been cleaned and disinfected with a hospital grade EPA registered disinfectant solution before servicing each client. (b)-(d) (No change.) (e) Scissors, razors, clipper blades, razor combs and tweezers, or other related equipment and supplies, must be disinfected with a hospital grade EPA registered disinfectant solution, must be clean to sight and touch, and stored in a closed container. Curling irons must be clean to sight and touch. (f) All types of brushes and combs, all types of rollers, clips, and other hair accessories which have become soiled in any manner shall be placed in a properly labeled receptacle provided for that purpose. (g) No other items are allowed in drawers or covered containers with clean, disinfected combs and brushes. Drawers and containers must be kept closed at all times. sec.83.15. Disinfecting Facial Implements. (a) Each facial specialist/esthetician must have a wet disinfecting soaking container. Tweezers must be disinfected with a hospital grade EPA registered disinfectant solution prior to each service. Brushes, sponges, chamois, spatulas, and galvanic electrodes must be pre-washed in soap and water and disinfected in a hospital grade EPA registered disinfectant solution and stored in a dry storage container that has been pre-cleaned with said disinfectant solution. Metal implements must be disinfected in said solution and stored in a dry storage container. (b) Each facial specialist/esthetician must have a wet disinfecting soaking container and a dry storage container. (c)-(g) (No change.) (h) Headrests of chairs shall be cleaned with a hospital grade EPA registered disinfectant solution prior to each service and covered with a clean towel or paper sheet for each client. (i) (No change.) sec.83.16. Disinfecting Manicure Instruments While In Use On Client. (a) Each manicurist must have a wet disinfectant soaking container and dry storage container at their station. (b) Nail brushes, nippers, finger bowls, washable files, washable buffers, and other metal instruments must be pre-washed and then completely immersed in a hospital grade EPA registered disinfectant solution and placed in a dry storage container. (c) After disinfecting, implements must be stored in a dry storage container with the lid closed when not in use. (d) Emery boards and lotion warming cups must be disposed of after each use. (e) Clean towels must be used with each client. (f) Manicurists shall be able to pedicure the feet, and must follow the same sanitary and disinfectant procedures as established for manicuring. (g) Ventilation must be maintained while performing nail services. (h) Under no condition will a manicurist, or manicuring salon, use the product Methyl methacrylate monomer in doing sculptured nails. (i) Table tops must be disinfected with a hospital grade EPA registered disinfectant solution before servicing each client. sec.83.22. Infectious Disease. (a)-(b) (No change.) (c) No school or establishment shall require or permit a student or person licensed by the Texas Cosmetology Commission knowingly to work upon a person infected with an infectious disease or an infection of animal parasites. (d) These rules apply in all situations except to the extent pre-empted by federal law. sec.83.25. Arresting Bleeding. (a)-(b) (No change.) (c) All salons, schools, and independent contractors shall have on the premises and utilize a hospital grade EPA registered tuberculocidal disinfectant solution in situations involving blood spills. All salons, schools, and independent contractors must be in compliance with OSHA rules on blood-borne pathogens, to include blood and body fluids. The school, salon personnel, and independent contractor shall follow disinfecting procedures by complete immersion for ten minutes of tools or implements, that have come in contact with blood or other fluids. 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 December 16, 1994. TRD-9452544 Dick G. Strader Executive Director Texas Cosmetology Commission Effective date: January 6, 1995 Proposal publication date: October 21, 1994 For further information, please call: (512) 454-4674 22 TAC sec.83.21 The Texas Cosmetology Commission adopts the repeal of sec.83.21, concerning bottles and containers, without changes to the proposed text as published in the October 21, 1994, issue of the Texas Register (19 TexReg 8342). This repeal is being adopted to eliminate unnecessary language. The rule defined the requirements for bottles and containers. No comments were received regarding the adoption of the repeal. The repeal is proposed under Texas Civil Statutes, Article 8451a, sec.4(e), which provides the Texas Cosmetology Commission with the authority to establish sanitation rules designed to prevent the spread of infectious or contagious diseases. 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 December 16, 1994. TRD-9452537 Dick G. Strader Executive Director Texas Cosmetology Commission Effective date: January 6, 1995 Proposal publication date: October 21, 1994 For further information, please call: (512) 454-4674 Chapter 89. General Rules and Regulations 22 TAC sec.89.73 The Texas Cosmetology Commission adopts amendments to sec.89.73, concerning fashion photography salon requirements, without changes to the proposed text as published in the November 1, 1994, issue of the Texas Register (19 TexReg 8663). In recognition of the increasing number of businesses engaging in fashion photography, and because some of the services offered in such businesses constitute the practice of cosmetology, the Commission adopted Rule sec.89.73 effective January 1, 1994. This rule sets out requirements for licensure with the Commission of any person engaging in the fashion photography business; that employees performing cosmetology services in such businesses must be licensed cosmetologists; and, the required equipment, etc. The adopted amendment adds a new section (c) which defines the fashion photography business, a new subsection (d) which addresses the "for compensation" element of practicing cosmetology as defined in Texas Civil Statutes, Article 8451a sec.1(3), and corrects typographical errors in the redesignated sec.subsections (f) and (g). In adopting both the original Rule sec.89.73 and these amendments, the Commission acted pursuant to complaints received about unlicensed fashion photography businesses which the complainants felt were practicing cosmetology without a license, complaints about licensed cosmetologists working in an unlicensed facility, and the Commission's statutory responsibilities to protect the health, safety and welfare of the public and to license and regulate all persons or entities practicing cosmetology as defined in Texas Civil Statutes, Article 8451a. No comments were received regarding the adoption of the amendments. The adopted amendments add a definition of fashion photography, address the "for compensation" element of cosmetology and correct prior typographical errors. The factual basis for the amendments is the technical expertise and experience of the Commission staff, and an Attorney General's Opinion addressing the "for compensation" element of cosmetology as defined in the Act. In addition, the Commission staff relied on material and information previously submitted by representatives of the fashion photography industry to define "fashion photography". Such material establishes that fashion photography is a fairly new business development combining elements of traditional photography with a cosmetic "makeover" (including the application of cosmetics and hair styling or arranging). Typically, the customer or client receives the "makeover" prior to the photographic sitting so as to increase or improve the dramatic attractiveness of the final photograph. Sometimes the "makeover" is included in a set price; sometimes it is optional or even free. After the photographs are taken, the client or customer has the opportunity to purchase the photographs. The Commission finds that the styling, arranging, or beautifying of the hair for compensation is an act of cosmetology as defined in the Act (sec.1(3)(a)), and therefore finds that those persons or businesses practicing cosmetology must be licensed by the Commission in accordance with the Act (sec.9(a) and 9(b)). The precise statutory provisions under which the amendments were adopted are sec.(4)(a) Powers and Duties of the Commission which authorizes the Commission to issue rules consistent with the Act; sec.1(3) which defines Cosmetology; sec.9(a) and (b) which states in sec.9(a) "a person may not perform or attempt to perform any practice of cosmetology without first obtaining a license..."; in sec.9(b) "a person may not conduct or operate ... or any other place of business in which the practice of cosmetology is taught or practiced without first obtaining a license"; and, sec.4(e) concerning the authority of the Commission to establish sanitation rules to prevent the spread of infectious or contagious diseases. All sections cited are to Texas Civil Statutes, Article 8451a. The Commission interprets these sections as authorizing the Rule to license and regulate those persons or businesses practicing cosmetology and to establish sanitation rules. Without Rule sec.89. 73, the fashion photography industry would be able to practice cosmetology without licensure and in violation of the regulatory and statutory oversight of the Commission. Such operation could result in loss of revenue to the state generated by licensure fees and pose a risk to the health, safety or welfare of the public. 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 December 16, 1994. TRD-9452535 Dick G. Strader Executive Director Texas Cosmetology Commission Effective date: January 6, 1995 Proposal publication date: November 1, 1994 For further information, please call: (512) 454-4674 TITLE 25. HEALTH SERVICES Part I. Texas Department of Health Chapter 229. Food and Drug Licensing of Wholesale Distributors of Drugs-Including Good Manufacturing Practices 25 TAC sec.sec.229.251-229.253 The Texas Department of Health (department) adopts amendments to sec.sec.229.251-229.253, concerning licensure of wholesale distributors of drugs including good manufacturing practices, with changes to the proposed text as published in the September 13, 1994, issue of the Texas Register (19 TexReg 7171). The amendments adopt all applicable sections of 21 Code of Federal Regulations (CFR) concerning human and veterinary over-the-counter and prescription drugs, biologics, and cosmetics. The rules also increase licensure fees for distributors and manufacturers of drugs. The sections more clearly define the department's regulatory authority to assure the safety and effectiveness of drugs and biologics and the safety of cosmetics, and provide for the implementation of user fees which will offset the costs of monitoring and inspecting wholesale drug distributors. No comments were received during the comment period on the proposed amendments; however the department clarified standard adoption by reference language to include the term "and will enforce" to more strongly emphasize enforcement provisions. The amendments are adopted under the Texas Health and Safety Code, sec.431. 241, which provides the department with the authority to adopt necessary regulations pursuant to the enforcement of Chapter 431; and sec.12.001, which provides the Texas Board of Health with the authority to adopt rules for the performance of every duty imposed by law on the Texas Board of Health, the Texas Department of Health, and the Commissioner of Health. sec.229.251. Definitions. The following words and terms, when used in these sections, shall have the following meanings, unless the context clearly indicates otherwise. Place of business -Each location at which drugs are distributed at wholesale as defined in the Health and Safety Code, Chapter 431. Wholesale distribution -Distribution to a person other than a consumer or patient, including, but not limited to distribution to any person by a manufacturer, repacker, own label distributor, jobber, or wholesaler. sec.229.252. Licensing Fee and Procedures. (a) License fee. All wholesale distributors of drugs who sell drugs in Texas shall obtain a license annually on or before September 1 with the Texas Department of Health (department) and shall pay a licensing fee for each wholesale distribution place of business operated as follows: (1) $250 per distributor engaged in distribution only of compressed medical gases (no transfilling operations) having a gross annual volume of $0-$20,000; (2) $400 per wholesale distributor having a gross annual volume of $0- 199,999.99 (includes medical gas transfillers); (3) $650 per wholesale distributor having a gross annual volume of $200, 000- $19,999,999.99; (4) $850 per wholesale distributor having a gross annual volume greater than or equal to $20,000,000; and (5) (No change.) (b)-(h) (No change.) sec.229.253. Minimum Standards for Licensure. (a) (No change.) (b) Current good manufacturing practices in manufacturing, processing, packing, or holding of drugs. (1) The department adopts by reference Title 21, Code of Federal Regulations, Part 210, sec.sec.210.1-210.3, 1994, titled "Current Good Manufacturing Practices in Manufacturing, Processing, Packing, or Holding of Drugs"; and Part 211, sec. sec.211.1-211.208, 1994, titled "Current Good Manufacturing Practice for Finished Pharmaceuticals". (2) Copies are indexed and filed in the office of the Division of Food and Drugs, Texas Department of Health, 1100 West 49th Street, Austin, Texas, 78756 and are available for inspection during normal working hours. (c) Guidelines for licensing of wholesale prescription drug distributors. (1) The department adopts by reference and will enforce Title 21, Code of Federal Regulations, Part 205, sec.sec.205.1-205.50, 1994, titled "Guidelines for State Licensing of Wholesale Prescription Drug Distributors". (2) Copies are indexed and filed in the office of the Division of Food and Drugs, Texas Department of Health, 1100 West 49th Street, Austin, Texas, 78756 and are available for inspection during normal working hours. (3) To the extent these sections conflict with Title 21, Code of Federal Regulations, Part 205, this section shall prevail. (4) Prescription drug means any drug, human, or veterinary, required by Federal law or regulation to be dispensed only by a prescription, including finished dosage forms and active ingredients subject to the Federal Food, Drug, and Cosmetic Act, sec.503(b). (d) Buildings and facilities. All manufacturing, processing, packing or holding of drugs shall take place in buildings and facilities described in Title 21, Code of Federal Regulations, Part 211, Subpart C, 1994. No manufacturing, processing, packing or holding of drugs shall be conducted in any personal residence. (e) Drug labeling. (1) If a person, firm or corporation labels a drug, the label shall meet the requirements of the Texas Health and Safety Code, Chapter 431. (2) The department adopts by reference and will enforce Title 21, Code of Federal Regulations, Part 201, sec.sec.201.1-201.317 , 1994, titled "Labeling". (3) Copies are indexed and filed in the office of the Division of Food and Drugs, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756 and are available for inspection during normal working hours. (f) Drugs general, drug advertising, specific requirements for special drugs, official names and established names, and labeling and packaging requirements for controlled substances. (1) The department adopts by reference and will enforce Title 21, Code of Federal Regulations: (A) Part 200, sec.sec.200.5-200.200, 1994, titled "General"; (B) Part 202, sec.202.1, 1994, titled "Prescription Drug Advertising"; (C) Part 250, sec.sec.250.10-250.250, 1994, titled "Special Requirements For Specific Human Drugs"; (D) Part 299, sec.sec.299.3-299.5 1994, titled "Drugs; Official Names and Established Names"; and (E) Part 1302, sec.sec.1302.01-1302.08, 1994, titled "Labeling and Packaging Requirements For Controlled Substances". (2) Copies are indexed and filed in the office of the Division of Food and Drugs, Texas Department of Health, 1100 West 49th, Austin, Texas, 78756 and are available for inspection during normal working hours. (g) Current good manufacturing practices in manufacturing, processing, packing, or holding of blood and blood components. (1) The department adopts by reference and will enforce Title 21, Code of Federal Regulations, Part 606, sec.sec.606.3-606.170, 1994, titled "Current Good Manufacturing Practice For Blood and Blood Components". (2) Copies are indexed and filed in the office of the Division of Food and Drugs, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756 and are available for inspection during normal working hours. (h) General biological products standards, standards for bacterial products, standards for viral vaccines, standards for human blood and blood products, standards for diagnostic substances for dermal test, standards for diagnostic substances for laboratory test, and standards for miscellaneous biological products. (1) The department adopts by reference Title 21 Code of Federal Regulations: (A) Part 600, sec.sec.600.3-600.15, 1994, titled "Biological Products: General"; (B) Part 610, sec.sec.610.1-610.65, 1994, titled "General Biological Products Standards"; (C) Part 620, sec.sec.620.1-620.48, 1994, titled "Additional Standards For Bacterial Products"; (D) Part 630, sec.sec.630.1-630.75, 1994, titled Additional Standards For Viral Vaccines"; (E) Part 640, sec.sec.640.1-640.114, 1994, titled "Additional Standards for Human Blood and Blood Products"; (F) Part 650, sec.sec.650.1-650.15, 1994, titled "Additional Standards for Diagnostic Substances for Dermal Test"; (G) Part 660, sec.sec.660.1-660.105, 1994, titled "Additional Standards for Diagnostic Substances for Laboratory test"; and (H) Part 680, sec.sec.680.1-680.26, 1994, titled "Additional Standards for Miscellaneous Products". (2) Copies are indexed and filed in the office of the Division of Food and Drugs, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756 and are available for inspection during normal business hours. (i) Labeling and standard requirements for the manufacturing or processing of animal biological products. (1) The department adopts by reference and will enforce Title 9, Code of Federal Regulations, Part sec.sec.113.1-113.455, 1994, titled Standard Requirements". (2) Copies are indexed and filed in the office of the Division of Food and Drugs, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756 and are available for inspection during normal business hours. (j) Cosmetic labeling for a person, firm or corporation that labels a cosmetic. (1) The department adopts by reference and will enforce Title 21, Code of Federal Regulations, Part 701, sec.sec.701.1-701.30, 1994, titled "Cosmetic Labeling". (2) Copies are indexed and filed in the office of the Division of Food and Drug, Texas Department of Health, 1100 West 49th Street, Austin, Texas, 78756 and are available for inspection during normal working hours. (k) Cosmetics general and cosmetic product warning statement. (1) The department adopts by reference and will enforce Title 21, Code of Federal Regulations, Part 700, sec.sec.700.3-700.25, 1994, titled "General"; and Part 740, sec.sec.740.1-740.18, 1994, titled "Cosmetic product Warning Statements". (2) Copies are indexed and filed in the office of the Division of Food and Drugs, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756 and are available for inspection during normal working hours. (l) Current good manufacturing practices in manufacturing, processing, packing or holding of medicated feeds and Type A medicated articles. (1) The department adopts by reference and will enforce Title 21, Code of Federal Regulation: (A) Part 225, sec.225.1-sec.225.202, 1994, titled "Current Good Manufacturing Practice For Medicated Feeds"; and (B) Part 226, sec.sec.226.1-226.115, 1994, titled "Current Good Manufacturing Practices For Type A medicated articles". (2) Copies are indexed and filed in the office of the Division of Food and Drugs, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756 and are available for inspection during normal working hours. (m) Over-the-counter (OTC) for human use. (1) The department adopts by reference and will enforce Title 21, Code of Federal Regulations: (A) Part 300, 1994, titled "General"; (B) Part 310, 1994, titled "New Drugs"; (C) Part 312, 1994, titled "Investigational New Drug Application"; (D) Part 314, 1994, titled "Applications for FDA Approval to Market a New Drug or an Antibiotic Drug"; (E) Part 316, 1994, titled "Orphan Drugs"; (F) Part 320, 1994, titled "Bioavailability and Bioequivalence Requirements"; (G) Part 329, 1994, titled "Habit-forming Drugs"; (H) Part 330, 1994, titled "Over-the-Counter (OTC) Human Drugs Which are Generally Recognized as Safe and Effective and Not Misbranded"; (I) Part 331, 1994, titled "Antacid Products for Over-the-Counter (OTC) Human Use"; (J) Part 332, 1994, titled "Antiflatulent Products for Over-the-Counter (OTC) Human Use"; (K) Part 333, 1994, titled "Topical Antimicrobial Drug Products for Over-the- Counter (OTC) Human Use"; (L) Part 336, 1994, titled "Antiemetic Drug Products for Over-the-Counter (OTC) Human Use"; (M) Part 338, 1994, titled "Nighttime Sleep-aid Drug Products for Over-the- Counter (OTC) Human Use"; (N) Part 340, 1994, titled "Stimulant Drug Products for Over-the-Counter (OTC) Human Use"; (O) Part 341, 1994, titled "Cold, Cough, Allergy, Bronchodilator, and Anti- asthmatic Drug Products for Over-the-Counter (OTC) Human Use"; (P) Part 344, 1994, titled "Topical OTIC Drug Products for Over-the- Counter (OTC) Human Use"; (Q) Part 346, 1994, titled "Anorectal Drug Products for Over-the- Counter (OTC) Human Use"; (R) Part 348, 1994, titled "External Analgestic Drug Products for Over-the- Counter (OTC) Human Use"; (S) Part 349, 1994, titled "Ophthalmic Drug Products for Over-the-Counter (OTC) Human Use"; (T) Part 357, 1994, titled "Miscellaneous Internal Drug Products for Over-the- Counter (OTC) Human Use"; (U) Part 358, 1994, titled "Miscellaneous External Drug Products for Over-the- Counter (OTC) Human Use"; (V) Part 361, 1994, titled "Prescription Drugs for Human Use Generally Recognized as Safe and Effective and Not Misbranded: Drugs Used In Research"; and (W) Part 369, 1994, titled "Interpretative Statements Re: Warnings on Drugs and Devices for Over-the-Counter Sales". (2) A manufacturer, repacker, own label distributor, jobber or wholesaler or any person distributing over-the-counter drugs shall not market, promote or advertise the drugs in a manner inconsistent with or broader than that permitted by the over-the-counter tentative final monographs or final monographs in Title 21, Code of Federal Regulations, Parts 300-369. (3) Copies are indexed and filed in the office of the Division of Food and Drugs, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756 and are available for inspection during normal working hours. (n) Packaging, labeling, tests and methods of assays for human antibiotic drugs. (1) The department adopts by reference and will enforce Title 21, Code of Federal Regulations: (A) Part 429, 1994, titled "Drugs Composed Wholly or Partly of Insulin"; (B) Part 430, 1994, titled "Antibiotic Drugs; General"; (C) Part 431, 1994, titled "Certification of Antibiotic Drugs"; (D) Part 432, 1994, titled "Packaging and Labeling of Antibiotic Drugs"; (E) Part 433, 1994, titled "Exemptions from Antibiotic Certification and Labeling Requirements"; (F) Part 436, 1994, titled "Tests and Methods of Assay of Antibiotic and Antibiotic-containing Drugs"; (G) Part 440, 1994, titled "Penicillin Antibiotic Drugs"; (H) Part 441, 1994, titled "Penem Antibiotic Drugs"; (I) Part 442, 1994, titled "Cepha Antibiotic Drugs"; (J) Part 444, 1994, titled "Oligosaccharide Antibiotic Drugs"' (K) Part 446, 1994, titled "Tetracycline Antibiotic Drugs"; (L) Part 448, 1994, titled "Peptide Antibiotic Drugs"; (M) Part 449, 1994, titled "Antifungal Antibiotic Drugs"; (N) Part 450, 1994, titled "Antitumor Antibiotic Drugs"' (O) Part 452, 1994, titled "Macrolide Antibiotic Drugs"; (P) Part 453, 1994, titled "Lincomycin Antibiotic Drugs"; (Q) Part 455, 1994, titled "Certain Other Antibiotic Drugs"; and (R) Part 460, 1994, titled "Antibiotic Drugs Intended for Use in Laboratory Diagnosis of Disease". (2) Copies are indexed and filed in the office of the Division of Food and Drugs, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756 and are available for inspection during normal working hours. 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 December 14, 1994. TRD-9452445 Susan K. Steeg General Counsel Texas Department of Health Effective date: January 4, 1995 Proposal publication date: September 13, 1994 For further information, please call: (512) 719-0200 TITLE 28. INSURANCE Part I. Texas Department of Insurance Chapter 1. General Administration Subchapter A. Rules Practice and Procedure 28 TAC sec.1.90 The Texas Department of Insurance adopts amendments to sec.1.90 concerning the rules of practice and procedure for contested cases before the State Office of Administrative Hearings (SOAH) and the Texas Department of Insurance (TDI). Changes to the Joint Memorandum of Understanding (MOU) are necessary to amend the manner in which filings are made, the process by which official custody of the record is maintained, and the procedures by which entry of appearance is made. These amendments are designed to eliminate the unnecessary duplication of filings, to clarify custody of the record in contested cases, and to conform appearance requirements with 28 TAC sec.1.88. This section is adopted with changes to the proposed text as published in the October 21, 1994, issue of the Texas Register (19 TexReg 8347). None of the changes results in the introduction of new subject matter or enlarges the class of persons subject to the proposal as originally published. During the period for public comment two comments were received, concerning clarification of official record transfer and grammatical usage. The amendments are necessary to streamline and clarify procedures between the Texas Department of Insurance and the State Office of Administrative Hearings by eliminating the duplication of filings, clarifying the custodian of the record at different stages in the hearings process, and conforming appearance requirements with other portions of the Administrative Code. Adopted amendments to sec.1.90 provide rules for the filing of pleadings, and designation of the custodian of the record in a contested case, and conform appearance requirements with other portions of the Administrative Code. Adopted subsection (e)(1) eliminates duplicative filing requirements for contested case pleadings and directs parties to file all original documents with the SOAH. Prior filing of documents with the TDI is eliminated. Adopted subsection (e)(2) requires parties to file all motions with the SOAH. Adopted subsection (e)(3) requires parties to file with the TDI motions for interim relief from the Commissioner, with copies to be filed with the SOAH. Adopted subsection (e)(4) requires notification to the TDI of orders and rulings concerning delays and continuances. Adopted subsection (f)(5) requires parties to enter an appearance in accordance with sec.1.88 of this title (relating to entry of Appearance; Continuance). Adopted subsection (f)(6) provides that the parties shall file notice of informal dispositions of contested cases, relieving the TDI docket clerk of this responsibility. Adopted subsection (i) (1) directs the SOAH to maintain the official records in a contested case from the time the TDI refers the case to SOAH until the ALJ has withdrawn or dismissed a case or by the close of the tenth day following the expiration of the deadline for filing replies to exceptions to the ALJ's proposal for decision. Adopted subsection (i)(2) directs parties to direct requests for copies of any portion or all of the record to the SOAH during that time period. Adopted subsection (i)(3) provides that following the close of the tenth day following the expiration of the deadline for filing replies to exceptions to the ALJ's proposal for decision, the record will be transferred to the TDI, and requests for copies of any portion or all of the record shall then be directed to TDI. Adopted subsection (i)(3) further provides that in the case of remand by the Commissioner to the SOAH, the record will be transferred back to SOAH and then returned to the TDI in accordance with subsection (i)(3). Comments on provisions in the amended MOU were received from the Texas Workers Compensation Insurance Facility and from staff of the SOAH. One commenter suggests that there be no reference to "original" notices of hearing, staff memoranda, and pleadings (including discovery), motions and other filings, in subsection (e)(1) so that the parties will not be confused, and that the rule be amended to read "to be filed." The Department disagrees that the use of the word "original" is confusing and believes that the subsection is clear in its direction to parties that the filing of pleadings occur at the SOAH. One commenter suggests that subsection (i)(3) make clear that, upon remand, custody of the record will be delivered back to SOAH for the use of the administrative law judge and the parties and will be returned to TDI at the time the second proposal for decision is rendered by the administrative law judge. The Department agrees with this comment and has added the clarifying language. The amendment is adopted pursuant to the Insurance Code, Articles 1.33B and 1.03A, and the Government Code, sec.sec.2001.001-2001.38. Article 1.33B provides that the commissioner for the department and the chief administrative law judge of SOAH to adopt by rule a joint MOU governing hearings held by SOAH under the Insurance Code and other insurance laws of this state. Article 1.03A authorizes the commissioner to promulgate and adopt rules and regulations for the conduct and execution of the duties and functions by the department. The Government Code, sec.sec.2001.001-2001.038 authorize and require each state agency to adopt rules of practice setting forth the nature and requirements of available procedures, and prescribe the procedure for adoption of rules by a state administrative agency. The adopted amendment affects regulation pursuant to the following statutes: The Insurance Code, Article 1.33B. sec.1.90. Joint Memorandum of Understanding (MOU) Between Texas Department of Insurance (TDI) and State Office of Administrative Hearings (SOAH) Concerning Procedures for Contested Cases before SOAH and Responsibilities of Each Agency. (a)-(d) (No change.) (e) Filing requirements. Filing of documents shall be made in accordance with the following: (1) Any party filing notices of hearing, staff memoranda, and pleadings (including discovery), motions and such other filings except motions for reconsideration, motions for review of summary procedures, motions for rehearing and appeals of interim orders, shall file the original with SOAH. (2) All motions, except motions for rehearing, motions for reconsideration, motions for review of summary procedures and appeals of interim orders, shall be addressed to SOAH. (3) All motions for rehearing, motions for review of summary procedures, motions for reconsideration, and appeal of interim orders seeking action to be taken by the commissioner of insurance shall be addressed to the commissioner and shall be filed with the TDI docket clerk. A true and correct copy of all motions for rehearing and appeals of interim orders shall be filed with SOAH on the same date and by the same method as filed with TDI. (4) Any ruling or prehearing order concerning a delay, continuance, of future filing shall be forwarded to the TDI docket clerk on the same date and by the same method as forwarded to other parties. (f) Hearings. (1)-(4) (No change.) (5) The respondent in any non-rate promulgation or non-rate approval proceeding shall enter an appearance with the ALJ in accordance with sec.1.88 of this title (relating to Entry of Appearance: Continuance) and the SOAH rules of procedure. (6) If the commissioner or the commissioner's designee informally disposes of a contested case by stipulation, agreed settlement, consent order, agreed order or default as provided in the Insurance Code, Article 1.10(7)(d) and the Government Code, sec.2001.056, the appropriate party or parties shall file a request to withdraw the case from the SOAH docket and include a copy of the order. SOAH shall then issue an order withdrawing the case from the SOAH docket. (7)-(8) (No change.) (g)-(h) (No change.) (i) Custody of the hearing record. (1) SOAH shall maintain the official record in a contested case from the time TDI refers the case to SOAH until the occurrence of the events in either Subparagraph (A) or (B), as follows: (A) the entry of an order by an ALJ to withdraw or dismiss a case from the SOAH docket either by the granting of a party's motion or on the ALJ's own motion; or (B) the close of the tenth day following the expiration of the deadline for filing replies to exceptions to the ALJ's proposal for decision. (2) Prior to the occurrence of the event in either Subparagraph (A) or (B) of Paragraph 1 of this subsection, any request for a copy of any portion or all of the record shall be directed to SOAH. Requests for official copies shall be directed to SOAH as the official custodian authorized to certify as to the completeness of the record before the conclusion of the administrative hearing process. No charge will be made for any certifications of the record or for audio copies of the hearing record when the blank tape cassettes are provided by the requester. (3) After the occurrence of the events in either Subparagraph (A) or (B) of Paragraph 1 of this subsection, the duty of official custodian of the record shall be transferred to TDI. SOAH shall deliver the official record to TDI along with a certified statement that the documents delivered constitute the complete record in the case. Any request for a copy of any portion or all of the record shall then be directed to TDI, as the official custodian authorized to certify as to the completeness of the record. No charge will be made for any certifications of the record or for audio copies of the hearing record when the blank tape cassettes are provided by the requester. In the event a contested case is remanded by the Commissioner to the ALJ, the record shall be transferred back to SOAH with the Commissioner's order remanding the case. The record shall then be maintained and subsequently transferred under the terms of this subsection, as if it were a case of original referral to the SOAH. 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 December 16, 1994. TRD-9452564 D. J. Powers Chief Clerk and General Counsel Texas Department of Insurance Effective date: January 6, 1995 Proposal publication date: October 21, 1994 For further information, please call: (512) 463-6327 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part IX. Texas Department on Aging Chapter 260. Area Agency on Aging Administrative Requirements 40 TAC sec.260.17 The Texas Department on Aging adopts new sec.260.17, concerning policies and procedures for approval of direct services applications by area agencies on aging, with changes to the proposed text as published in the October 25, 1994, issue of the Texas Register (19 TexReg 8525). This rule is a revision to and relocation of a previous rule made necessary to continue the restructuring of Department rules. This rule will function to provide policies for area agencies to follow when it becomes necessary to obtain approval to perform direct services other than those authorized by the Older Americans Act. In sec.260.17(c)(3), a suggestion was made to add additional wording to provide a greater degree of specificity to submission of applications during an emergency. The Department agrees and has amended the language in this paragraph. This rule was commented on by the Texas Association for Home Care and by the Texas Association of Regional Councils. This rule is adopted under Human Resources Code, Chapter 101, which provides the Texas Department on Aging with the authority to promulgate rules governing the operation of the Department. sec.260.17. Approval of Direct Services Applications From Area Agencies on Aging. (a) Purpose. This chapter establishes policies when area agencies on aging (AAA) determines the need to provide a service(s) directly to the elderly. (b) Justification for Submission. The three conditions, as provided by the Older Americans Act, 307 (b)(10), as amended, when an area agency on aging may submit an application to provide a service directly are when: (1) there is a lack of an adequate supply of services; (2) services that are related to the area agency's administrative function other than those indicated in subparagraphs (A)-(F) of this paragraph: (A) outreach and advocacy; (B) information and referral; (C) information and assistance; (D) case management; (E) benefits counseling; and (F) transportation if provided by another division of the grantee agency; (3) the area agency is able to perform a comparable service more economically than by contractual arrangements. (c) When applications may be submitted. An application to provide a service by the area agency on aging may be submitted; (1) with the area plan or area plan amendment; (2) when it is necessary to comply with service requirements of the Older Americans Act; (3) when emergency situations warrant submission of an application to maintain service delivery. If an emergency exists which threatens the health and welfare of a significant segment of the elderly population, such as a breach of contract, unlawful activity, severe mismanagement or no other service provider, the AAA shall, after notifying the Department and receiving interim approval, move to immediately provide the services in question. (d) Documentation requirements. To permit the Department to render a factual decision on the direct service application, the AAA must submit adequate documentation to support their position for supplying the service(s) directly. Documentation will conform to the requirements established by the Department. (e) Action by the Department. The Department approves requests to provide a service(s). (1) In cases when an area agency on aging requests approval to provide services at the beginning of a new planning period, or at the beginning of a subsequent year of that planning period, the Department reviews all the documentation and prepares a letter to the requesting area agency on aging of approval or disapproval. All documentation will become a part of the area plan or area plan amendment. (2) In cases where an area agency on aging requests approval under this chapter to provide emergency services for 90 days or a negotiated period during a given fiscal year, the Department reviews all the documentation and prepares a letter to the requesting area agency on aging of approval or disapproval. All documentation will become a part of the area plan or area plan amendment. 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 December 14, 1994. TRD-9452432 Mary Sapp Executive Director Texas Department on Aging Effective date: January 4, 1995 Proposal publication date: October 25, 1994 For further information, please call: (512) 444-2727 Chapter 269. Health Standards Statutes and Regulations 40 TAC sec.sec.269.1, 269.3, 269.5, 269.7 The Texas Department on Aging adopts the repeal of sec. sec.269.1, 269.3, 269.5, and 269.7, without changes to the proposed text as published in the October 25, 1994, issue of the Texas Register (19 TexReg 8526). These rules are no longer applicable to the operation of the Department. Without adoption of these repeals, recodification of the rules of the Department cannot be accomplished. No comments were received regarding adoption of the repeals. The repeals are adopted under the Human Resources Code, Chapter 101, which provides the Texas Department on Aging with the authority to promulgate rules governing the operation of the Department. 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 December 14, 1994. TRD-9452433 Mary Sapp Executive Director Texas Department on Aging Effective date: January 4, 1995 Proposal publication date: October 25, 1994 For further information, please call: (512) 444-2727 Chapter 270. General Service Requirements 40 TAC sec.sec.270.7, 270.9, 270.11 The Texas Department on Aging adopts sec.sec.270.7, 270.9, and 270.11, concerning general service requirements for homemaker, personal assistance and health promotion services, with changes to the proposed text as published in the October 25, 1994, issue of the Texas Register (19 TexReg 8527). These rules are revisions to and relocations of previous rules necessary to continue the revision and restructuring of Department rules. These rules will function to provide policies for area agencies to follow in the provision of homemaker, health promotion, and personal assistance services. A number of comments were received regarding the content of these rules. In sec.270.7(e)(2), Homemaker Service Requirements, a commenter suggested the addition of clarifying language regarding standards for nutrition. The Department concurs and has amended the language in this paragraph. In subsection (f)(3), regarding escort, language was suggested to clarify responsibility of a homemaker transporting a client in a private vehicle. The Department concurs and has added additional language. In subsection (g)(2)(D), a suggestion to add "such as furnishing" was accepted as adding more specificity to this subparagraph. Subsection (g)(2)(F) was rewritten to incorporate language suggested by a commenter regarding liability requirements and proof of insurance. Per a suggestion, the reference to "tips" was removed from subsection (g)(2)(H). In subsection (h)(2)(B)(i), (C)(i), and (C)(iii), additional words were added relating to individual client's service plan, based on a commenter's suggestion. Subsection (h)(F) was amended to incorporate a suggestion regarding emergency contact persons for clients. In paragraph (l), additional language was added regarding monitoring of services provided under this rule. In sec.270.9, Personal Assistance Service Requirements, a suggestion to amend the language in subsection (i)(6) to incorporate references to proof of liability was accepted. In subsection (j), a paragraph (3) was added to include a reference to the Texas Department of Health and the Board of Nurse Examiners as recommended by a commenter and subsection (k) was amended to include words regarding monitoring of direct purchase of service procedures. In sec.270.11, some minor changes were made to the text by Department staff to improve readability. These rules were commented on by the Texas Association of Regional Councils, the Texas Association for Home Care, the Board, Advisory Council and the staff of the Texas Department on Aging. These rules are adopted under the Human Resources Code, Chapter 101, which provides the Texas Department on Aging with the authority to promulgate rules governing the operation of the Department. sec.270.7. Homemaker Service Requirements. (a) Purpose. This chapter establishes the rules to be followed when area agencies on aging contract for or purchase the delivery of homemaker services authorized by the Older Americans Act for the elderly in their planning and service area. (b) Scope. This rule applies only to Older Americans Act funded services. Homemaker services not provided with Older Americans Act funds are not subject to these rules. (c) Target group. The target group for this service is persons 60 years of age or older who are functionally impaired in their ability to perform regular activities of daily living, but do not need personal care assistance. (d) Access. Older persons may be referred by self, physician, hospital, case manager, family member, friend, or other service provider. Services will be provided in the client's place of residence. Services shall not be provided in a nursing home, personal care home or other setting where the provision of this service is included in the cost of their care. (e) Service outcomes. Service providers shall ensure that their services achieve the following outcomes: (1) Quality in-home services are provided at an affordable rate. (2) Staff are trained to be sensitive to clients' special needs, including nutrition as described in the Dietary Guidelines for Americans, in order to provide quality services. (3) Services are designed to lessen the burden of impairment for older adults. (4) Services are designed based on a care plan individualized for the client's needs. (f) Service activities. Activities of the homemaker program may include, but are not limited to the following: (1) housekeeping or home management: (A) housecleaning; (B) laundering; (C) ironing and mending clothes and linens; (D) washing dishes and utensils; (E) bagging garbage and putting it outside; (F) making beds and changing linens; (G) shopping for household essentials including assisting client with economical shopping consistent with their budgets; (H) assisting client in organizing household routines; and (I) performing necessary reading and writing tasks, if requested. (2) meal preparation: (A) assisting in planning menus that are appropriate for the older person's needs and are consistent with the Dietary Guidelines for Americans shopping for and storing food; (B) preparing and serving meals; and (C) utilizing sanitary practices for handling and preparing food. (3) escort. Accompanying a client on trips to obtain health care services and other necessary items and services. If homemaker staff drives the client, subsection (g)(2)(F) of this section, relating to transporting a client in their personal vehicle or the client's vehicle, must be observed. (g) Prohibited activities. (1) Homemakers shall not provide personal care activities prohibited in 25 TAC sec.sec.115.1-115.62, relating to home and community support services agencies. (2) Other activities which are prohibited include: (A) home repair; (B) pet grooming; (C) yard maintenance; (D) moving heavy objects such as furnishing; (E) performing services for members of the household other than the client; (F) transporting the client in homemaker's personal vehicle unless proof of liability insurance has been verified in writing by the homemaker agency to cover the instance. (G) performing tasks not assigned by the supervisor; (H) accepting gifts above minimal value; (I) bringing persons to the client's home that are not there in any homemaker service-related capacity; (J) taking personal items from the client's home; (K) assuming control of the financial or personal affairs of the client or of his or her estate, including power of attorney, guardianship or conservatorship; or (L) committing any act of abuse, neglect, or exploitation. (h) Delivery characteristics. Service providers will deliver services in the following manner. (1) Case managed services shall adhere to procedures established by the Department in accordance with this section, relating to case management services. (2) Annualized contracts shall adhere to the following. (A) In-home assessment. (i) An initial assessment shall be performed by the designated program staff and approved by the supervisor within five working days from the date of referral to determine the needs of the client. The assessment procedure shall be determined by the Department. (ii) The delivery of service shall be based on specific client needs as determined by the designated program staff during the in-home assessment. (B) Service plan. (i) The service plan shall begin being developed with the client and/or family during the in-home assessment visit and finalized prior to initiating services and shall include: (I) tasks to be performed; (II) frequency of visits and/or hours of service; (III) assignment of personnel; and (IV) estimated length of service. (ii) The service plan shall be revised as necessary, and reviewed and updated by staff members involved in serving the client at least every three months. (C) Service initiation. (i) The homemaker shall not provide services until the program staff has reviewed the assessment and an initial service plan has been developed. (ii) Services shall be initiated within ten working days from the date of referral, if the provider agency caseload permits acceptance of the case, and thereafter delivered on a regular basis in accordance with the established service plan. (iii) a contact shall be made by the provider agency within the first four weeks of service initiation to ensure client satisfaction. (D) Supervisory/monitoring visits. At least every six months a home visit will be made to each client by program staff to determine if the needs of the client are being met, to determine if the homemaker is performing tasks according to the service plan, and to remedy any areas of deficiency. (E) Reassessment. Each client shall be reassessed as needed, but at least every six months. (i) The reassessment shall be conducted either when the program staff's contact with the client indicates the client's needs have changed, or when a homemaker or other caregiver reports the client's needs have changed. (ii) The reassessment shall address changes in the cognitive, emotional, physical, functional, economic or physical/social environment in which the client lives. (F) Emergency contact. An emergency contact person must be identified by each client and maintained in the provider agency's client record. If no emergency contact person is able to be identified, the local law enforcement agency should be listed. The emergency contact person and phone number(s) shall be verified and updated at the time of reassessment. (i) Staffing qualification requirements. (1) Designated program supervisors must have successfully completed two years of full-time study in social or behavioral sciences at an accredited college or university, and have supervisory experience. Substitution of a year of full-time employment in a social or human service agency for each year of college is allowed for individuals with a high school diploma or General Equivalency Diploma (GED). In addition, supervisors should have experience in housekeeping or home management and meal preparation activities. (2) All homemakers shall meet the following requirements: (A) be at least 18 years of age or older; (B) have the ability to follow oral and written instructions and keep simple records; (C) have previous experience providing care to aged or disabled adults; and (D) have experience in or receive training in each service activity. (j) Training requirements. The provider agency shall provide services with personnel who meet the qualifications and competencies to perform requested and agreed upon services of the client or family. The provider agency is responsible for the following: (1) orientation of personnel to their job responsibilities including, but not limited to: the philosophy and values of community integration and consumer- driven care; report of abuse or neglect; and change in the client's health condition requiring emergency procedures or health services; (2) maintenance of documentation to demonstrate that an individual is able to perform the services for which he is responsible; and (3) the provider agency shall be responsible for determining the need for and requiring employees to participate in in-service training as appropriate. The provider agency may provide the training or assist employees in locating and attending the appropriate training. In-service training should better prepare the employee to meet the needs of the client, and in accordance with the Department's established procedures. (k) Administrative requirements. (1) Agencies providing homemaker services shall comply with the administrative and other requirements specified in sec.270.1 of this title (relating to General Service Requirements). (2) The provider agency shall have a written contingency plan in the event of dissolution for continuity of client care. Records shall be maintained in accordance with the Department's established procedures. (3) The provider agency shall maintain accurate administrative, fiscal, personnel, and client case records that shall be accessible and available to authorized representatives of the area agency on aging, the Texas Department on Aging, the Administration on Aging, the Department of Health and Human Services, and others as required by law. (4) The provider agency shall inform the client and/or the family in writing of the terms of their agreement for services. The information provided shall include, but not be limited to, the following: (A) services to be provided; (B) supervision by the agency of services provided; (C) agency charges for services rendered (if applicable), and if the charges will be paid in full or in part by the client or family; (D) the client's or family's opportunity to contribute voluntarily toward the cost of services; and (E) a copy of the agency's complaint procedures. (l) Monitoring and evaluation. The homemaker service program performance shall be monitored and evaluated in accordance with the Department's procedures described in sec.260.1(e) of this title (relating to Monitoring), or the procedures related to the direct purchase of services, whichever is appropriate. sec.270.9. Personal Assistance Service Requirements. (a) Purpose. This section establishes the rules to be followed when area agencies on aging contract for or purchase the delivery of personal assistance services authorized by the Older Americans Act for the elderly in their planning and service area. (b) Scope. This rule applies only to Older Americans Act funded services. Personal assistance services not provided with Older Americans Act funds are not subject to these rules. (c) Service objective. The purpose of this service is to provide personal care services to older adults who need assistance with activities of daily living. Due to the nature of this service, it shall be authorized by a case manager. (d) Service outcome. The individuals shall receive quality personal assistance services which will provide them the opportunity to prolong their independence for as long as possible. (e) Target group. The target group for this service is persons 60 years of age and older who are at least moderately impaired in their functioning regarding activities of daily living and/or vulnerable elderly persons who require assistance with service management. (f) Access. Older persons may be referred by self, physician, hospital, case manager, family member, friend, or other service provider. Services shall be provided in the client's place of residence. Services shall not be provided in a nursing home, personal care home or other setting where the provision of this service is included in the cost of their care. (g) Service provider eligibility. Area agencies shall contract with a home and community support services agency that has been licensed by the Texas Department of Health. (h) Service activities. Activities of the attendant may include, but are not limited to the following. (1) Personal care. Assistance with activities related to the care of the client's physical health include; (A) bathing; (B) dressing; (C) preparing meals; (D) feeding; (E) exercising; (F) grooming; (H) caring for routine hair and skin needs; (I) taking self administered medication; (J) toileting; (K) transferring/ambulating. (2) Home management. Assistance with housekeeping activities that support the client's health and safety include; (A) changing bed linens; (B) housecleaning; (C) laundering; (D) shopping; (E) storing purchased items; (F) washing dishes. (3) Escort. Accompanying the client on trips to medical appointments or to purchase medical supplies shall be allowed. (i) Prohibited activities. The following activities are prohibited: (1) home repair; (2) pet grooming; (3) moving heavy objects such as furnishing; (4) yard maintenance; (5) performing services for members of the household other than the client; (6) transporting the client in the attendant's personal vehicle or the client's vehicle unless proof of liability insurance has been verified in writing by the homemaker agency to cover the instance. (7) performing tasks not assigned by the supervisor; (8) accepting gifts above minimal value; (9) bringing persons to the client's home that are not there in any attendant- related capacity; (10) taking personal property from the client's home; (11) assuming control of the financial or personal affairs of the client or of his or her estate, including power of attorney, guardianship, or conservatorship; or (12) committing any act of abuse, neglect, or exploitation. (j) Delivery characteristics. (1) Service providers will deliver services in accordance with the Home and Community Support Services Act, 25 TAC sec.115.1, of the Health and Safety Code, Chapter 142. (2) Personal assistance services performed by service providers shall be authorized by a case manager in accordance with procedures established by the Department in sec.260.7 of this title (relating to Case Management). (3) Any agency which provides personal assistance services with Texas Department on Aging funds must abide by the memorandum of understanding between the Texas Department of Health and the Board of Nurse Examiners that defines personal assistance services to include health related tasks. (k) Monitoring and evaluation. The personal assistance service program performance shall be monitored and evaluated in accordance with the Department's procedures established for monitoring of direct purchase of services . sec.270.11. Health Promotion Requirements. (a) Purpose. This chapter establishes the rules to be followed when area agencies on aging contract for or purchase the delivery of health services authorized for the elderly by the Older Americans Act in their planning and service area. (b) Scope. This rule applies only to Older Americans Act funded services. Health promotion services not provided with Older Americans Act funds are not subject to these rules. (c) Objectives. (1) The overall objective of health promotion is to reduce disease and disability; to reduce the prevalence of risks to health or to increase behaviors known to reduce such risks; and, to increase comprehensiveness, accessibility, and/or quality of preventive services and preventative interventions. (2) The area agency on aging has a role to coordinate resources, and where none exists, to create a way to fill the gaps in services. Therefore, in an effort to prevent duplication of existing community resources, the area agency will make every effort to purchase services for which no other resource can be identified. (d) Health promotion outcome. The level of health and wellness of those persons aged 60 years and older is increased by the utilization of community based initiatives and the coordination with health care providers. (e) Service Activities. Any one or more of the following shall describe a health promotion program. (1) Health screening or monitoring shall identify people at risk and refer them to the appropriate follow-up services. These services may be provided in senior centers, nutrition sites, at health fairs, other community settings, or in individual's homes, in some circumstances. (A) Health screening shall include one or more of the following evaluations: (i) blood pressure, (ii) hearing, (iii) vision, (iv) dental, (v) podiatry, (vi) nutritional status, (vii) blood tests, (viii) urinalysis, (ix) medication management, (x) home injury control safety, and (xi) depression. (B) The provider shall ensure that individual participants are made aware of health services available to them in their communities for appropriate follow-up care. (2) Health Maintenance services are provided by a health professional and shall include one or more of the following: (A) medical treatment; (B) in-home health education; (C) home health services (nursing, physical therapy, speech or occupational therapy); or (D) the provision of medications, glasses, dentures, hearing aids, or other assistive devices. (3) The health counseling service category may also include specific counseling services. Some of the types of counseling are: (A) gerontological, (B) caregiver, (C) social service, (D) nutrition, (E) mental health, and (F) medication compliance. (4) Health education shall be provided to participants in the following manner: (A) Service providers shall consult health professionals specifically trained in appropriate health-related fields in the planning and implementation of health education services. The provider agency shall employ licensed and/or certified professionals who meet the appropriate laws for the service. (B) Service providers shall refer and/or coordinate activities with local public and/or private health centers, which may include, community health centers, federally qualified health centers, regional or local health departments, hospitals, voluntary health associations, registered nurse clinics, and primary physicians. (C) Health education services shall educate individuals or groups about lifestyles and daily activities. These may include one or more of the following: (i) art and dance-movement therapy; (ii) programs in prevention or reduction of effects of chronic disabling conditions; (iii) alcohol, and substance abuse reduction; (iv) smoking cessation; (v) weight loss and control; and (vi) stress management. (5) Mental health services shall be provided to individuals who have mental illnesses, emotional or social disabilities, or who may require support and treatment. Such support may include education, prevention, screening, referral and/or intervention. (f) Client Eligibility. (1) Health promotion programs shall be provided for persons 60 years of age or older with priority given to meeting the needs of persons with the greatest economic or social needs; and/or medically under served, or caretakers of the frail elderly. (2) Each participant shall sign a release form releasing both the instructor and the facility from any personal liability. (3) Where appropriate, each participant shall be informed of potential risk prior to participation in health-related activities. (g) Service Provider Eligibility. Health screening/promotion activities, and/or health maintenance shall be provided: (1) by an area agency on aging, in accordance with the provisions of sec.260.2(f)(7) of this title (relating to Contracting); (2) or by an agency with which the area agency subcontracts; or (3) by providers from whom the area agency purchases services directly. (h) Staffing. (1) The service provider shall utilize persons who are trained or are in training and/or supervised appropriately for the service they administer. Any results of screening will be interpreted by the appropriate health professional. Staffing may be paid or volunteer. (2) Staff training shall be performed in accordance with Department procedures; (3) Each fitness or exercise instructor shall have current Cardio-Pulmonary Resuscitation Certification (CPR). (i) Administrative requirements. Any agency providing health promotion programs shall comply with the administrative and other requirements specified in sec.270.1 of this title (relating to General Service Requirements). (j) Monitoring and Evaluation. The performance of agencies providing health promotion programs shall be monitored and evaluated in accordance with sec.260.1(e) of this section relating to monitoring. 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 December 14, 1994. TRD-9452434 Mary Sapp Executive Director Texas Department on Aging Effective date: January 4, 1995 Proposal publication date: October 25, 1994 For further information, please call: (512) 444-2727 Chapter 295. Registration of Board and Lodging Homes Statutes and Regulations 40 TAC sec.sec.295.1, 295.3, 295.5 The Texas Department on Aging adopts the repeal of sec. sec.295.1, 295.3, and 295.5, without changes to the proposed text as published in the October 25, 1994, issue of the Texas Register (19 TexReg 8530). This rule is no longer applicable to the operation of the Department. Without adoption of this repeal, recodification of the rules of the Department cannot be accomplished. No comments were received regarding adoption of these repeals. These repeals are adopted under the Human Resources Code, Chapter 101, which provides the Texas Department on Aging with the authority to promulgate rules governing the operation of the Department. 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 December 14, 1994. TRD-9452435 Mary Sapp Executive Director Texas Department on Aging Effective date: January 4, 1995 Proposal publication date: October 25, 1994 For further information, please call: (512) 444-2727 TITLE 43. TRANSPORTATION Part I. Texas Department of Transportation Chapter 1. Management Access to Official Records 43 TAC sec.1.503 The Texas Department of Transportation adopts an amendment to sec.1.503, concerning Cost of Copies of Official Records, with changes to the proposed text as published in the October 7, 1994, issue of the Texas Register (19 TexReg 8024). The amendment 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 1.503 lists charges for copies of official department records. The section is amended to add charges for: title histories and title and registration verifications; Texas Highways Magazine mailing lists; and copies of records available in various nonstandard sizes and media. These new charges are not significantly different than what the department currently charges the public. To accurately reflect the department's costs, the table of charges in sec.1. 503 has been revised to lower the charge for large size diazo prints. On October 18, 1994, the department conducted a public hearing to seek comments concerning proposed amendment to sec.1.503. No comments were received regarding adoption of the amendment. The amendment 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 records. sec.1.503. Cost of Copies of Official Records. (a) Standard costs. The following table lists charges for copies and related services. Figure 1: 43 TAC sec.1.503(a) (b)-(d) (No change.) 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 December 15, 1994. TRD-9452474 Diane L. Northam Legal Executive Assistant Texas Department of Transportation Effective date: January 5, 1995 Proposal publication date: October 7, 1994 For further information, please call: (512) 463-8630