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 I. Office of the Governor Chapter 5. Budget and Planning Office The Office of the Governor adopts the repeal sec.sec.5.301-5.303 and new sec.sec.5.301-5.303, concerning energy conservation design standards for new state buildings and for major renovations to state buildings (excepting historic buildings), without changes to the proposed text as published in the December 9, 1994, issue of the Texas Register (19 TexReg 9707). The new sections reflect the inter-agency transfer of duties and responsibilities that were formerly assigned to the Energy Management Center of the Governor's Office of Budget and Planning (and later, to the Governor's Energy Office) to the General Services Commission/State Energy Conservation Office and revise references to model design standards for state-owned commercial and residential buildings. New sec.sec.5.301-5.303 specifically adopt references to most recent commercial and residential design standards applicable to state buildings, i.e., the Council of American Building Officials (CABO) and the 1993 Texas Energy Conservation Design Standard for New (non-residential) State Buildings, respectively. The new sections are proposed to conform with the Texas Government Code, Chapters 447 and 2305, the interagency agreement between the Office of the Governor and the General Services Commission and approved programs of the United States Department of Energy. The new rules repeal obsolete provisions related to the commercial and residential design standards applicable to state buildings and update references to include, i.e., the Council of American Building Officials (CABO) and the 1993 Texas Energy Conservation Design Standard for New (non-residential) State Buildings, respectively. No comments were received regarding adoption of the repeals and new sections. Subchapter C. Energy Conservation Design Standards 1 TAC sec.sec.5.301-5.303 The repeals are adopted under Texas Government Code, Chapter 447, sec.447. 002, which provides that the energy management center may make rules relating to the adoption and implementation of energy conservation programs applicable to state buildings and facilities. The Government Code, sec.2305.011, further invests the Office of the Governor with authority to determine the supervising state agency for each competitive grant and direct grant program established by the governor. Except as expressly provided in Chapter 2305, the Governor has designated the General Services Commission/State Energy Conservation Office as the supervising state agency over the programs described in Chapters 447 and 2305, including the programs previously assigned to the Energy Management Center of the Office of the Governor and/or the Governor's Energy Office. 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 January 13, 1995. TRD-9500997 David Talbot General Counsel Office of the Governor, Division of Budget and Planning Effective date: February 3, 1995 Proposal publication date: December 9, 1994 For further information, please call: (512) 463-1877 The new sections are adopted under Texas Government Code, Chapter 447, sec.447.002, which provides that the energy management center may make rules relating to the adoption and implementation of energy conservation programs applicable to state buildings and facilities. The Government Code, sec.2305.011, further invests the Office of the Governor with authority to determine the supervising state agency for each competitive grant and direct grant program established by the governor. Except as expressly provided in Chapter 2305, the Governor has designated the General Services Commission/State Energy Conservation Office as the supervising state agency over the programs described in Chapters 447 and 2305, including the programs previously assigned to the Energy Management Center of the Office of the Governor and/or the Governor's Energy Office. 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 January 13, 1995. TRD-9500996 David Talbot General Counsel Office of the Governor, Division of Budget and Planning Effective date: February 3, 1995 Proposal publication date: December 9, 1994 For further information, please call: (512) 463-1877 Subchapter D. Loan Program for Energy Retrofits 1 TAC sec.5.401 The Office of the Governor adopts the repeal of sec.5.401, concerning the Texas LoanSTAR (Save Taxes and Resources) Program, without changes to the proposed text as published in the December 9, 1994, issue of the Texas Register (19 TexReg 9707). The repeal is necessary in order to adopt new sec.5.401, which provides procedures for the management of the LoanSTAR (Save Taxes and Resources) Program, a low-interest revolving loan program that provides for energy conservation measures within publicly-owned buildings. New sec.5.401 is being published concurrently with this repeal to reflect these changes. The repeal will delete obsolete language. No comments were received regarding adoption of the repeal. The repeal is adopted under Texas Government Code, Chapter 447, sec.447.002, which provides that the energy management center may make rules relating to the adoption and implementation of energy conservation programs applicable to state buildings and facilities. The Government Code, sec.2305.011 further invests the Office of the Governor with authority to determine the supervising state agency for each competitive grant and direct grant program established by the governor. Except as expressly provided in Chapter 2305, the Governor has designated the General Services Commission/State Energy Conservation Office as the supervising state agency over the programs described in Chapters 447 and 2305, including the programs previously assigned to the Energy Management Center of the Office of the Governor and/or the Governor's Energy Office. 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 January 13, 1995. TRD-9500994 David Talbot General Counsel Office of the Governor, Division of Budget and Planning Effective date: February 3, 1995 Proposal publication date: December 9, 1994 For further information, please call: (512) 463-1788 The Office of the Governor adopts new sec.5.401, concerning the Texas LoanSTAR (Save Taxes and Resources) Program, a revolving loan program that provides for energy conservation measures within publicly-owned buildings, with changes to the proposed text as published in the December 9, 1994, issue of the Texas Register (19 TexReg 9707). The new section is required to provide procedures for management of the Texas LoanSTAR (Save Taxes and Resources) Program which provides low-interest loans for energy-efficient enhancements to publicly-owned buildings, and to delete obsolete provisions. In sec.5.401(a)(1), the words "energy saving capital retrofits" have been replaced with the words: "energy conservation measures." The section now reads: "...the LoanSTAR program shall accept and process applications from public sector institutions seeking loan funds for energy conservation measures." In sec.5.401(a)(2), the word "retrofit" has been replaced with "measure." In sec.5.401(a)(7), the words "Retrofit Demonstration" have been replaced with the word "LoanSTAR;" the word "administered" has been inserted following the word "state" and the word "retrofit" has been replaced with the word "measure" in the first sentence; and the words "or enhancements, " have been inserted following the word "retrofits" in the second sentence. The section now reads: "LoanSTAR Program-The overall state-administered energy conservation measure program. It is comprised of five elements: energy audits, efficiency retrofits or enhancements, a revolving loan financing mechanism, program monitoring and evaluation, and information transfer." Section 5.401(a) (8), has been rewritten to read: "Energy Conservation Measure (ECM)-A commercially available energy efficient device, technique, or technology, designed to reduce energy consumption, peak demand, and/or utility costs at an existing facility owned by a public sector institution or to achieve similar savings from enhancements beyond all applicable energy-related regulatory requirements in a proposed facility to be owned by such institution." In sec.5. 401(a)(9), the word "Retrofit" has been replaced with the words "Energy Conservation Measure (ECM)" In sec.5.401(b)(4) the word "retrofit" has been replaced with the words "energy conservation." In sec.5.401(b)(5), the word "retrofit" has been replaced with the words "energy conservation." Section 5. 401(b)(5)(k), has been revised to read: "other cost-effective energy efficiency enhancements, demand, or rate-based measures approved by the LoanSTAR program." In sec.5.401(c)(4), the words "existing or proposed" were inserted after the words "identifies the." In sec.5.401(d)(1), the words "retrofit measure" were replaced with the words "energy conservation measures (ECMs)." The new section reflects the inter-agency transfer of duties and responsibilities that were formerly assigned to the Energy Management Center of the Governor's Office of Budget and Planning (and later, to the Governor's Energy Office) to the General Services Commission/State Energy Conservation Office and deletes certain restrictions on eligibility for loans under the LoanSTAR program. New sec.5.401 adds language which would permit loans for construction of new energy-efficient facilities and deletes provisions which limit loan eligibility for state and local government entities by geographical area, by the percentage of buildings owned and by loan amount based on the borrower's status as a state or local unit of government. The new sections are proposed to conform with the Texas Government Code, Chapters 447 and 2305, the interagency agreement between the Office of the Governor and the General Services Commission and the State Energy Conservation Plan (SECP) as approved by the United States Department of Energy. One written comment was received. Tom Fitzpatrick, Director of Environmental Initiatives, General Services Commission, recommended a number of editorial changes to clarify the intent of various provisions and broaden the scope of others. In particular, Mr. Fitzpatrick recommended changes to ensure that loans would be available for "energy-efficient enhancements," in both new and existing publicly-owned buildings. The agency agrees with the comments received and has adopted the additional revisions recommended. The new section is adopted under Texas Government Code, Chapter 447, sec.447. 002, which provides that the energy management center may make rules relating to the adoption and implementation of energy conservation programs applicable to state buildings and facilities. The Government Code, sec.2305.011, further invests the Office of the Governor with authority to determine the supervising state agency for each competitive grant and direct grant program established by the governor. Except as expressly provided in Chapter 2305, the Governor has designated the General Services Commission/State Energy Conservation Office as the supervising state agency over the programs described in Chapters 447 and 2305, including the programs previously assigned to the Energy Management Center of the Office of the Governor and/or the Governor's Energy Office. sec.5.401. Texas LoanSTAR (Save Taxes and Resources) Program for Public Sector Institutions. (a) Definitions. The following works and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. (1) Application cycle-The period of time each year, as determined by the LoanSTAR program acting on behalf of the governor's office, that the LoanSTAR program shall accept and process applications from public sector institutions seeking loan funds for energy conservation measures. (2) Estimated simple payback-The total energy conservation measure costs (including audit, metering, installation, equipment, and engineering design) divided by the annual estimated utility cost savings. (3) Interest fee-The prepaid interest charge at a rate to be determined by the governor's office, sufficient to cover the costs of administering the program. (4) Loan agreement-The written agreement between an applicant and the governor's office that details all terms and requirements under which the loan is issued, including the intended use of the loan proceeds. (5) Project cost-All costs determined by the governor's office to be directly related to the identification, design, implementation, metering, and monitoring of an energy conservation measure. (6) Promissory note-A document issued by the governor's office and agreed to by the applicant that describes the principal amount, repayment terms, and interest charges under which the revolving loan shall be made. (7) LoanSTAR Program-The overall state-administered energy conservation measure program. It is comprised of five elements: energy audits, efficiency retrofits or enhancements, a revolving loan financing mechanism, program monitoring and evaluation, and information transfer. (8) Energy Conservation Measure (ECM)-A commercially available energy efficient device, technique, or technology, designed to reduce energy consumption, peak demand, and/or utility costs at an existing facility owned by a public sector institution or to achieve similar savings from enhancements beyond all applicable energy-related regulatory requirements in a proposed facility to be owned by such institution. (9) Energy Conservation Measure (ECM) project-The identification, design, acquisition, installation, monitoring, and evaluation of one or more energy efficient measures which are designed to reduce energy consumption, peak demand, and/or utility cost. (10) Public sector institution-Any state department, commission, board, office, institution, facility, or other agency, including a university system or an institution of higher education as defined in the Texas Education Code, sec.61.003, as amended. Also, units of local government including a county, city, town, or an independent school district. (11) Building-A structure which consumes energy. (12) Facility-Any major energy using group of buildings in geographic proximity and/or a major energy using system owned and occupied or operated by one or more public sector institutions. (b) Eligibility. Projects proposed by loan candidates must fulfill the following program parameters and eligibility requirements. (1) Experimental or research-related technologies are not eligible for funding. Retrofit measures which result from renewable energy resources shall not be considered experimental or research related if the measure is commercially available or has a demonstrated track record of its cost effectiveness. (2) Eligible measures shall have a demonstrated track record of cost- effectiveness. (3) Eligible measures shall be commercially available. (4) Each energy conservation measure must be unique in its application, location, building characteristics, and/or target audience. (5) Eligible energy conservation measure projects are: (A) indoor and outdoor lighting projects; (B) heating, ventilation, and air conditioning equipment; (C) electrical distribution equipment; (D) building shell improvements; (E) energy management systems; (F) boiler efficiency improvements; (G) energy recovery systems, including on-site generation of electricity; (H) alternate/renewable energy systems; (I) load management devices; (J) water and waste water systems; and (K) other cost-effective energy efficiency enhancements, demand, or rate-based measures approved by the LoanSTAR program. (6) Unless this requirement is specifically waived, all eligible measures must be recommended in an engineering audit by a licensed professional engineer in a format acceptable to the LoanSTAR program. (c) Application/selection. (1) Each applicant shall submit a copy of its engineering audit report with a completed loan application to the LoanSTAR program during an application cycle at such times as determined by the LoanSTAR program. (2) Loan applications will be evaluated by the LoanSTAR program on the basis of the following criteria: (A) estimated simple payback period; (B) ability to repay the loan through energy, demand savings; (C) engineering assessment of the viability of the technology; (D) likelihood of effective project monitoring; and (E) ability to meet all state and federal program eligibility requirements. (3) Loans will be approved by the governor's office or legally designated successor based on the LoanSTAR program staff recommendations and engineering evaluations of estimated paybacks and reliability. (4) A public sector institution receiving a loan from the governor's office or legally designated successor will receive a loan agreement and promissory note that identifies the existing or proposed buildings to be modified, approved measures, rate of interest, loan amount, and loan terms and conditions. (5) Institutions denied funding shall receive written notification that states the reasons for denial and possible actions for qualifying the rejected projects. (d) Project funding and repayment. (1) The term of the loan will be determined by the LoanSTAR program based upon anticipated energy savings and time needed to install the energy conservation measure(s) (ECMs). (2) An interest fee, sufficient to cover the cost of administering and operating the program, will be charged at a rate to be determined by the LoanSTAR program. (3) All interest fees will be computed on an annual percentage rate basis. (4) Loan proceeds may be used to pay for the entire cost of the retrofit project, including cost of the energy audit, engineering design, construction, equipment, acquisition and installation, maintenance, metering, and monitoring. (5) Loan funds shall be disbursed to the borrower upon receipt of supporting documentation as required by the governor's office or legally designated successor. (6) A state agency may use general revenue funds appropriated for utilities to make loan payments as stipulated in Texas Government Code, Chapter 2305. (7) Loan repayment schedules shall be determined on the basis of expected payback and project installation time. (8) Frequency of payments shall be no greater than quarterly. (9) No loans will be forgiven. (e) Loan recipient responsibilities (project monitoring and demonstration). (1) Loan recipients shall provide the LoanSTAR program with the access and information necessary to monitor the performance of the retrofits, as stated in the loan agreement. (2) Loan recipients shall be responsible for submitting all reports requested by LoanSTAR program as outlined in the loan agreement. (3) Compliance with applicable local, state, and federal procurement guidelines and procedures is the responsibility of the loan recipient. (f) Title to equipment. (1) Title to all equipment acquired under this program will vest in the borrower, in accordance with applicable state statutes. (2) Disposition and inventory of any equipment shall be done in accordance with state statutes and regulations. 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 January 13, 1995. TRD-9500995 David Talbot General Counsel Office of the Governor, Division of Budget and Planning Effective date: February 3, 1995 Proposal publication date: December 9, 1994 For further information, please call: (512) 463-1788 TITLE 13. CULTURAL RESOURCES Part III. Texas Commission on the Arts Chapter 37. Application Forms and Instructions for Financial Assistance 13 TAC sec.37.27 The Texas Commission on the Arts adopts by reference new sec.37.27, concerning the application forms and instructions for Operational Assistance Year 2 of 2, without changes to the proposed text as published in the December 23, 1994, issue of the Texas Register (19 TexReg 10168). This section is being adopted to be consistent with the Texas Arts Plan as amended September 1993. By adopting the new section the commission will be able to utilize federal and state financial assistance funds in a more effective manner. No comments were received regarding adoption of the new section. The new section is adopted under Government Code, sec.444.009, which provides the Texas Commission on the Arts with the authority to make rules and regulations for its government and that of its officers and committees. 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 January 23, 1995. TRD-9500953 Rhonda Hill Director of Finance and Administration Texas Commission on the Arts Effective date: February 13, 1995 Proposal publication date: December 23, 1994 For further information, please call: (512) 463-5535 TITLE 16. ECONOMIC REGULATION Part IV. Texas Department of Licensing and Regulation Chapter 67. Auctioneers 16 TAC sec.sec.67.10, 67.22, 67.100 The Texas Department of Licensing and Regulation adopts amendments to sec.sec.67.10, 67.22, and 67.100, concerning auctioneers, without changes to the proposed text as published in the December 16, 1994, issue of the Texas Register (19 TexReg 9950). The amendment to sec.67.10 changes the definition of "Auction without reserve" by removing the provision to have any lots sold with minimum bids in an auction without reserve and adds a definition of cheating, sec.67.22 specifies consequences of cheating on a licensing examination, and sec.67.100 adds requirements to advertise buyer's premiums when they will be charged and to use type fonts for statements altering another statement in an advertisement that are at least as large as the fonts in the statement altered. The amendments will function by increasing program integrity. One comment was received in favor of the proposal and one comment opposing the amendment to sec.67.100. The department considered the comments and feels the proposal is in line with requirements of other state law and should be adopted as proposed. The amendments are adopted under Texas Civil Statutes, Article 8700, which authorize the department to license and regulate auctioneers. 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 January 23, 1995. TRD-9500944 Jack W. Garison Executive Director Texas Department of Licensing and Regulation Effective date: February 13, 1995 Proposal publication date: December 16, 1994 For further information, please call: (512) 463-7357 TITLE 25. HEALTH SERVICES Part I. Texas Department of Health Chapter 29. Purchased Health Services Subchapter CC. LoneSTAR Select Contracting Program 25 TAC sec.29.2801 On behalf of the State Medicaid Director, the Texas Department of Health (department) submits an adopted amendment to sec.29.2801, concerning the LoneSTAR Select Contracting Program process for hospital inpatient services, with changes to the text, as proposed in the November 22, 1994, issue of the Texas Register (19 TexReg 9269). The amendment is adopted to further implement Senate Bill 79, 73rd Texas Legislature, 1993, which mandates medical assistance selective contracting for non-emergency inpatient hospital services. Generally, the amendment enables the department to contract selectively with mental health facilities for inpatient services for Medicaid recipients, thereby improving the department's ability to act as a prudent purchaser of services and manage the program in a more effective and efficient manner. Specifically, the amendment replaces the term "hospital" with the term "health care provider"; modifies the definitions of "Hospital capacity to provide specialized service offerings" and "Potential network" to include the LoneSTAR Select Contracting Program I and the LoneSTAR Select Contracting Program II; broadens the definition of the term "Health care provider"; adds definitions for "LoneSTAR Select Contracting Program I" and "LoneSTAR Select Contracting Program II"; adds a definition for the term "inpatient mental health facility"; distinguishes acute care hospitals from mental health facilities; and adds a provision concerning reimbursement under LoneSTAR Select Contracting Program II awards. The department received verbal or written comments from two commenters. A summary of comments received and the department's responses are as follows. COMMENT: Concerning sec.29.2801(e), one commenter stated that the provision requiring hospitals to respond to the proposal package within one month is unrealistically short. RESPONSE: The department, upon obtaining necessary federal waiver approvals, will transmit a solicitation package to each health care provider in the market areas selected, following the process described in sec.29.2801(c)(1) et sequitur. Within 7-10 days thereafter, the department intends to conduct workshops for potential submitters of proposals, at which department officials will answer questions about the LoneSTAR Select Contracting Program II, and about the procedures established for submitting a proper application. Applications for each of the markets selected will be due on a defined date that will be established in the solicitation package. As provided in this rule, that date will be approximately 30 days after the date of transmittal of solicitation packages to health care providers. Since the department will not require elaborate or lengthy proposals from health care providers, the department believes that this time frame should be more than adequate for health care providers to evaluate the information required to prepare and submit the required applications. As the majority of information the department is going to request was published in the waiver and/or included in this rule, health care providers may rely on that information if they wish to begin preparation of their applications prior to the release of the solicitation packages. Health care providers are particularly encouraged to consider the requirements of sec.29.2801(d)(6), which will require health care providers to offer evidence that the submission of a binding application for a selective provider agreement has been duly authorized by the corporate governance of the health care provider. COMMENT: Concerning sec.29.2801(e)(2), one commenter stated that the full disclosure of the evaluation criteria is essential in order to make the proposal process meaningful and to assure health care providers that the selection process will be fair. RESPONSE: Section 29.2801(e) describes the evaluation methodology to be employed, and provides a general description of the criteria that will be used to evaluate health care provider submissions in each market. The solicitation packages that will be transmitted to health care providers under sec.29.2801(c) will provide an explicit listing of the criteria to be employed in evaluating health care provider submissions in light of the department's requirements to ensure recipient access to services. The department does not, however, plan to disclose the scoring methodology that will be employed to evaluate each health care provider's application against those criteria. COMMENT: Concerning sec.29.2801(f), one commenter stated that the department should request a second proposal from all hospitals that submitted a proposal originally rather than allowing the department to selectively negotiate with individuals hospitals. RESPONSE: The department disagrees. The department maintains that it needs and has the flexibility to accept or reject any initial offer and to proceed to the negotiation phase, or any phase applicable in the rule, if it were in the department's best interest. COMMENT: Concerning sec.29.2801(f), one commenter stated that the department should specify a time frame for the evaluation and negotiation process. RESPONSE: The department will conclude the evaluation and negotiation process as quickly and efficiently as possible in order to fully consider all of the numerous factors and to implement selective contracting in each market. COMMENT: Concerning sec.29.2801(f), one commenter stated that the rule should specify that the department will provide all applicant health care providers that are not awarded a contract with a full explanation of the reason(s) why the health care provider was not selected. RESPONSE: The department disagrees. Senate Bill 79 provides that upon completion of all negotiations and selection decisions, data submitted by health care providers, and the reimbursement terms arrived at between the department and each selected health care provider, will be available for public inspection. The department believes that health care providers whose applications are not accepted will, under this requirement, have access to substantially more information about the reason for their non-selection than would be contained in the notice this commenter suggests. COMMENT: Concerning sec.29.2801(f), one commenter suggested that the rule should provide an appeal process by which a non-selected health care provider might question the department's rejection of its proposal. RESPONSE: The department disagrees. The language of Senate Bill 79 makes no provision for an appeal process once negotiations have been completed and selective provider agreements have been executed. COMMENT: Concerning the proposed rules in general, one commenter stated that in the department's request for federal waivers, the department states that it is seeking waivers "to enable the State to contract selectively with health care providers for non-emergency inpatient services". The department has now publicly stated its intention to selectively contract for all inpatient services for Medicaid recipients. This represents a substantial expansion of the selective contract program, an expansion not contemplated in the waiver request. RESPONSE: The department disagrees. On line number 126, page 4 of the waiver it states the following: "Health care providers (Applicable Inpatient Psychiatric Facilities for Children/AIPFCs) with contracts will be paid contract rates for all Medicaid recipients they treat as inpatients". As stated in both the waiver application and the proposed rules, however, restrictions on recipient freedom of choice of provider will be limited to non-emergency services only. COMMENT: Concerning the proposed rules in general, one commenter suggested that the department provide a clear definition of emergency and non-emergency services; and clarify to which services the discount rate will apply. RESPONSE: The department believes that it has provided a clear definition of emergency services on line number 975, page 43 of the waiver. Section 29. 2801(i) provides the reimbursement methodology for inpatient mental health facilities where the LoneSTAR Select Contracting Program II awards amended provider agreements. COMMENT: Concerning sec.29.2801(b)(5)(B)(ii), one commenter suggested an excess capacity of only 25% (125% total) is not enough to assure that Medicaid recipients have adequate access to inpatient mental health services. RESPONSE: The department disagrees with the comment. Given current projections of Medicaid program growth, health care provider capacity greater than or equal to 125% of recent historic utilization appears to the department to be more than adequate to serve the needs of Medicaid recipients. Should unanticipated program growth (e.g., the result of new federal eligibility mandates) result in a finding that the provider capacity actually selected in each market may not prove adequate, the process described in this rule provides the department with the flexibility to reopen the competition at the end of each contract year in order to obtain agreements with a wider network of providers. COMMENT: Concerning the proposed rules in general, both commenters stated that the Medicaid program currently provides reimbursement for emergency adolescent psychiatric services only. As such, how will the program provide prior authorization of emergency adolescent psychiatric services provided at a non- contracted mental health facility. RESPONSE: The department or its designee will continue to provide authorizations of emergency psychiatric services provided to adolescents in the same manner as they currently do with the exception that emergency psychiatric services in a non-contracted mental health care provider will only be authorized until the patient is stabilized. After a patient is stabilized in a non- contracted health care provider, inpatient services are no longer covered unless the non-contracted health care provider receives an exception as provided in sec.29.2801(i). Minor editorial changes were made for clarification purposes. The following provided comments on the proposed rules: Texas Hospital Association; and Columbia/HCA-San Antonio. None of the commenters were against the rules in their entirety, however, they expressed concerns, asked questions, and made recommendations. The amendment is adopted under the Human Resources Code, sec.32.027 which provides authority for the adoption of rules on selective contracting; the Human Resources Code sec.32.021, and Texas Civil Statutes, Article 4413(502), sec.16, which provide the Health and Human Services Commission with the authority to adopt rules to administer the state's medical assistance program and is submitted by the Texas Department of Health under its agreement with the Health and Human Services Commission to operate purchased health services programs and as authorized under Chapter 15, sec.1,07, Acts of the 72nd Legislature, First Called Session (1991). sec.29.2801. LoneSTAR Select Contracting Process for Inpatient Hospital Services. (a) (No change.) (b) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Market area-A geographic subdivision of the State of Texas defined as a group of geographically contiguous counties in which the Texas Department of Health (department) determines that health care providers will be invited to apply for selective contracting agreements. In general, each Metropolitan Statistical Area (MSA) in the State will be considered for designation as a market area. Where warranted by historical patient migration patterns, the department may designate certain non-MSA counties that are geographically contiguous to an MSA to be included with MSA counties within a market area. (2) Effective service area-For each health care provider in a market area, the geographic area, as defined on a zip code basis, in which the health care provider has historically provided inpatient hospital services to Medicaid patients. For purposes of subsection (f) of this section, the effective service area will be determined based on historical Medicaid inpatient claims data. (3) (No change.) (4) Hospital capacity to provide specialized service offerings- (A) For the LoneSTAR Select Contracting Program I, the presence or absence of specific acute care hospital services, including but not limited to, trauma centers, burn units, neonatal intensive care unit services, and psychiatric services, that are required to be available in the market to ensure adequate access to quality care. (B) For the LoneSTAR Select Contracting Program II, the presence or absence of specific inpatient psychiatric services, including but not limited to, separate units for young children and adolescents, separate psychiatric and substance abuse treatment services, closed and open units, and distinct programs (e.g., dual diagnosis, eating disorder) that may be required to be available in the market to ensure adequate access to quality. (5) Potential network-Any combination of applicant health care providers (whether the result of a joint proposal or determined by the department) that offer a: (A) combined effective service area that provides geographic coverage of the market area to the same extent that coverage is provided under current practice; (B) combined service capacity equal to at least: (i) 115% of the most recently available historic service volume experience for the market area for the LoneSTAR Select Contracting Program I; or (ii) 125% of the most recently available historic service volume experience for the market area for the LoneSTAR Select Contracting Program II; and (C) combination of specialized services available within the market area that is at least as broad as the range of specialized services presently available to Medicaid recipients in that market area. (6) Selective contracting-A method of contracting, granted through waivers of certain provisions of the Social Security Act, that allows the department to contract selectively with health care providers for non-emergency inpatient services, thereby improving its ability to act as a prudent purchaser of services and to manage the Medical Assistance Program in a more effective and efficient manner, as required by Senate Bill 79. (7) Selective provider agreement-An agreement which includes an amendment to a health care provider's existing provider agreement with the department and involves selective contracting. (8) Disproportionate share hospital-A health care provider participating in the Medicaid program that, according to state Medicaid criteria, meets the conditions of participation and serves a disproportionate share of indigent patients. Additional requirements for disproportionate share hospitals are specified in sec.29.609 of this title (relating to Additional Reimbursement to Disproportionate Share Hospitals) and sec.29.610 of this title (relating to Disproportionate Share Hospital Reimbursement Methodology for State-Owned Teaching Hospitals). (9) Health care provider-A health care provider shall be: (A) any acute care hospital that is eligible to provide inpatient hospital services to Medicaid recipients; or (B) any inpatient mental health facility, as defined within this section. (10) Optional volume management activities-Those activities that acute care hospitals may propose to furnish to Medicaid recipients in a market area to expand access to primary care services and ensure more appropriate use of acute care hospital facilities. Such activities may include, but not be limited to, furnishing ambulatory primary care clinic services to Medicaid recipients, and furnishing nurse hotlines which Medicaid recipients may call to receive professional advice about the most appropriate means to obtain medical care. (11) Hardship exemption procedure-A method for non-contracted health care providers to obtain prior authorization from the department to provide non- emergency inpatient services to Medicaid recipients who would experience an unreasonable travel burden under the LoneSTAR Select Contracting Program. (12) Emergency inpatient services-An admission into a health care provider with a diagnosis meeting the definition of a medical emergency. (13) Non-emergency inpatient services-An admission into a health care provider with a diagnosis not meeting the definition of a medical emergency. (14) LoneSTAR Select Contracting Program I-The selective contracting program designed and implemented for acute care hospitals. (15) LoneSTAR Select Contracting Program II-The selective contracting program designed and implemented for inpatient mental health facilities as defined in Health and Safety Code, sec.571.003. (16) Inpatient mental health facility-A mental health facility that can provide 24-hour residential and psychiatric services that is: (A) a facility operated by the Texas Department of Mental Health and Mental Retardation; (B) a private mental hospital licensed by the department; (C) a community center; (D) a facility operated by a community center or other entity the Texas Department of Mental Health and Mental Retardation designates to provide mental health services; (E) an identifiable part of a general hospital in which diagnosis, treatment, and care for persons with mental illness is provided and that is licensed by the department; or (F) a hospital operated by a federal agency. (c) General design. The department shall select that subset of market areas that appears to indicate the most effective competition for selective provider agreements to serve Medicaid patients. The market areas shall be divided into two groups of solicitations that will avoid an overlap of contract evaluation and negotiation of solicitations. (1) The department shall implement selective contracting by executing amendments to each health care provider's existing provider agreement with the department. Health care providers that were not parties to provider agreements before implementation of the department's selective contracting are eligible to apply; however, they must enter into a provider agreement that ensures they are subject to all terms and conditions of the Medical Assistance Program. The amendments to the provider agreements, and the process by which the department solicited, evaluated, negotiated, and executed the amended agreements with health care providers under selective contracting are not subject to the laws and regulations governing acquisition of goods and services by state agencies. (2) Health care providers shall be required to apply for selective provider agreements on an individual basis. Proposals by combinations of health care providers under common ownership in a market area shall be considered as individual proposals if the health care providers elect to apply on that basis. Proposals by combinations of health care providers in a market area that are not under common ownership will also be considered, provided that each health care provider that is a party to a joint application in a market area also submits an independent application for a selective contracting agreement in that market area; and each such health care provider provides written assurances that the terms of its individual proposal were arrived at independently without consultation with any other health care provider or combination of health care providers, and have not been communicated to any competitor or group of competitors. The department does not intend any action by the State of Texas in the contracting process to require or sanction any form of communication or joint action by competitors in the market for inpatient hospital services (with respect to either individual or joint applications) that fails to comply with the provisions of this section. (3) The department shall send solicitation packages, inviting proposals for selective provider agreements, to each health care provider serving residents of the counties selected for participation. Health care providers will be required at all times to be eligible to participate in the Medicare and Medicaid programs. Health care providers that are not sent solicitation packages for Medicaid recipients of a particular market will be able to request a package after demonstrating their intent to offer services to Medicaid recipients in those markets. (d) Proposals for selective provider agreements. Health care providers seeking selective provider agreements shall be required to submit the following information in their proposals: (1) a schedule of proposed payment rates to be applied to all covered health care provider inpatient services during the term of the agreement; (2) a proposed level of volume of services to Medicaid recipients that the health care provider would agree to serve during the contract period (this proposed level shall serve only as an estimate of services to assist the department in evaluating the availability of services within the relevant market area; it shall not serve as a limit on the amount of reimbursable services to be supplied by a contracting hospital); (3) data to assist the department in evaluating the effective service area and specialized service offerings of the health care provider; (4) assurances and certifications required to ensure health care provider compliance with the requirements of Federal and Texas law and regulations, and the requirements of the department's selective contracting process; (5) a narrative description of the proposed plans (if any) of the acute care hospital to furnish optional volume management programs for Medicaid recipients; and (6) evidence that the application of the health care provider constitutes a binding quotation authorized by the corporate governance of the health care provider. (e) Evaluation of proposals for selective provider agreements. The department shall evaluate health care provider proposals according to the following criteria. (1) Health care provider proposals shall be due to the department within one month of the release of proposal packages. All health care provider materials submitted to the department during the proposal process, and materials developed by the department or its contractors during the course of evaluation and negotiation, shall be confidential until all agreements are executed for all market areas in the state. (2) The department shall evaluate health care provider proposals on a market- by-market basis and determine a negotiation strategy to pursue in each market area following its evaluation of all market areas. Based on the application of pre-specified evaluation criteria for each market area, the department shall prepare a recommended strategy for contracting in each market area. Each market area strategy shall be subject to approval by the Executive Oversight Committee established by the department. (3) The department shall retain the option to make awards without negotiation. In some circumstances, the department may accept the proposals offered by every health care provider in the market area. In most cases, however, the department expects to enter into negotiations with those health care providers whose proposals, taken together, appear to represent the best combination of providers consistent with the overall objectives of the Medical Assistance Program. After negotiation, the department reserves the right not to award an agreement in a specific market area. In most cases, however, the department shall proceed to finalize and execute agreements with some subset of the health care providers in each market area. In that event, coverage restrictions associated with the use of non-contracted health care providers Medicaid recipients shall apply. (f) Evaluation criteria and methodology. The department's evaluation of proposals for selective provider agreements for each market area shall be conducted in two phases. Phase One shall include determining minimally acceptable network combinations and Phase Two shall include cost evaluation. A description of each phase follows: (1) In Phase One, the department shall enter the information included in health care provider proposals in each market area into a personal computer based (PC-based) micro-simulation model designed to aid in the evaluation of the department's contracting options for each market. Data from health care provider proposals shall be combined with data from the department's eligibility systems and claims processing records to construct the data base required for this phase of the evaluation. Each health care provider's record in the data base shall contain information necessary to determine each health care provider's: (A) (No change.) (B) capacity to provide specialized services required by Medicaid recipients in the market area. (2) The PC-based micro-simulation model shall be used to test all possible combinations of health care providers applying for selective provider agreements to determine potential networks that shall meet the department's requirements for access to services for Medicaid patients. Where health care providers have submitted a joint proposal for selective provider agreements, the department shall evaluate the proposed provider network and the proposed network in all possible combinations with remaining health care providers that submitted proposals. (3) In Phase Two, each potential network shall be eligible for further consideration. If the Phase One evaluation fails to identify a potential network of applicant health care providers that meet the department's specified criteria, the department reserves the right to enter into direct negotiations with any health care provider serving the market area. The purpose of these negotiations shall be to develop a minimally acceptable potential network, and allow the department to initiate negotiations with a health care provider that failed to submit a proposal during the proposal period. (4) In Phase Two, each potential network identified in a market area in Phase One shall be evaluated to determine the estimated reduction in program costs that would result from entering into selective provider agreements with all of the health care providers in that potential network, while excluding all other health care providers from serving non-emergency cases. The department shall use the PC-based micro-simulation model to produce an estimate of the total change in Medicaid program costs that would result by entering into agreements with those health care providers during the base contract period. The estimate by the department shall consider: (A) (No change.) (B) changes in the distribution of service volumes (and case mix) across health care providers that would result from the reallocation of service volume from non-selected to selected providers; and (C) savings in Medicaid program costs likely to result from the changes in service volumes induced by optional volume management activities proposed by acute care hospitals, including both savings in aggregate acute care hospital service use and offsetting increases in non-hospital service costs. (5) (No change.) (6) Following the evaluation, the department shall prepare a recommendation to the Executive Oversight Committee that includes the outcome of both phases of the evaluation for each market area, as well as a proposed strategy for the department to meet the best interests of the Medical Assistance Program. Department options shall include: (A) making an award without negotiations-including an award at the proposed price schedules to all health care providers in the market; (B) entering into negotiations with health care providers a single potential network to improve proposed pricing, if possible, and to finalize an agreement about key program features; or (C) entering into negotiations with one or more health care providers influence the department's choice among multiple potential networks by lowering the pricing terms offered by individual health care providers. These negotiations may result in identifying a single potential network that would differ in its health care provider composition from potential networks initially identified in Phase One. (g) Execution of selective provider agreements. The department shall execute selective provider agreements at the conclusion of negotiations by: (1) requesting applicants to submit a binding revised application including the terms and conditions agreed to during negotiations with the department. The best and final offer of each health care provider shall be forwarded to the department for approval. The provider agreements shall be executed following the approval of the department; and (2) structuring the agreements as one year amendments to the provider agreement of each health care provider, with an option to the department of extending the amendments for up to two option years. The effective date of the reimbursement rates under the amendments may, by mutual agreement, be made retroactive to a date before the date of execution. At the conclusion of the first year, the department may adjust its exercise of options on a market-by- market basis so as to place the system on a three-year rolling system of renegotiations. If the performance of any health care provider under the contract is considered unsatisfactory, however, the department may elect not to exercise any subsequent options, even if it exercised options with all other selected health care providers the market. (h) Reimbursement for acute care hospitals. Acute care hospitals in MSA's where the LoneSTAR Select Contracting Program I awards amended provided agreements will have their inpatient services reimbursed as follows: (1)-(2) (No change.) (i) Reimbursement for Inpatient Mental Health Facilities. Inpatient mental health facilities in MSA's where the LoneSTAR Select Contracting Program II awards amended provider agreements will have their inpatient psychiatric services reimbursed as follows: (1) Inpatient mental health facilities awarded selective provider agreements will be reimbursed for all covered emergency services according to the proposed rates they submit with their proposals or according to the final negotiated rates that all parties agree will serve as the reimbursement mechanism for all covered emergency services rendered by the health care provider. (2) Inpatient mental health facilities not awarded selective provider agreements will be reimbursed for covered emergency inpatient services as currently stated in the State Plan until the patient is stabilized. After a patient is stabilized in a non-contracted health care provider, inpatient services are no longer covered unless the non-contracted health care provider receives an exception for some additional days of stay. (3) As in current policy, each case will continue to be subject to all relevant utilization review criteria. 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 January 24, 1995. TRD-9501000 Susan K. Steeg General Counsel, Office of General Counsel Texas Department of Health Effective date: February 14, 1995 Proposal publication date: November 22, 1994 For further information, please call: (512) 458-7236 Subchapter EE. Licensed Professional Counselors and Advanced Clinical Practitioners 25 TAC sec.29.3001, sec.29.3002 On behalf of the State Medicaid Director, the Texas Department of Health (department) submits adopted new sec.29.3001 and sec.29.3002, concerning Medicaid coverage for outpatient mental health counseling provided by licensed professional counselors (LPCs) and licensed master social worker-advanced clinic practitioners (LMSW-ACPs), with changes to the proposed text as published in the August 19, 1994, issue of the Texas Register (19 TexReg 6504). The new sections allow LPCs and LMSW-ACPs to enroll in the Texas Medical Assistance Program and receive reimbursement for outpatient mental health counseling for emotional disorders or conditions provided to Medicaid eligible clients. The adopted language reflects the formal designation of advanced clinical practitioners as licensed master social worker-advanced clinical practitioners. The new sections identify provider participation requirements and the reimbursement methodology for covered counseling services provided by LPCs and LMSW-ACPs. The following comments were received concerning the proposed sections. Comment: One commenter recommended that the specific allowable diagnoses be included in sec.29.3001(a). Response: The department believes that it is inappropriate for rules to contain specific diagnoses which would require a revision to the rule as new diagnoses are introduced. Mental disorders recognized and identified by the ICD-9-CM coding structure which are appropriate for counseling will be allowed. No changes were made to the section. Comment: One commenter recommended that diagnostic interviews and assessments performed by LMSW-ACPs be included in sec.29.3001(a) as covered services. Response: While the department agrees that these services are within the LMSW- ACPs scope of practice the coverage of services beyond counseling are beyond the scope of the current proposal, therefore no changes were made to the section. Comment: One commenter recommended that the requirement for LMSW-ACPs to be enrolled in Medicare be deleted in sec.29.3002(c)(3) as this is an additional requirement. Response: LPCs are not recognized as a provider by the Medicare program and therefore cannot participate in Medicare. Medicare does recognize and enroll LMSW-ACPs as providers. The Texas Medical Assistance Program requires that all providers who are allowed to enroll and participate in Medicare do so prior to enrolling as a Medicaid provider. This requirement ensures Medicaid's status as the payor of last resort. Therefore the department does not agree that LMSW-ACPs should be exempt from Medicare participation. Comment: One commenter recommended the inclusion of the requirement that LMSW- ACPs and LPCs must obtain a written referral or prescription from a physician prior to providing counseling services. Response: LMSW-ACPs and LPCs are not required by state licensing standards to have a referral or prescription from a physician. This requirement could prevent or delay clients from receiving needed services and may result in unnecessary expenditures. The department received 10 comments specifically stating appreciation for not requiring a physician referral or prescription. No changes were made to the section. Comment: One commenter asked whether counseling services would be allowed to Medicaid clients residing in nursing facilities. Response: These services are not included in the nursing facility payment and can be billed separately. Comments were received from the Texas Counseling Association, the Medical Care Advisory Committee, and twelve individuals who generally supported the proposal, but asked questions and made recommendations as previously discussed. The new sections are adopted under the Human Resources Code, sec.32.021 and Texas Civil Statutes, Article 4413 (502), sec.16, which provides the Health and Human Services Commission with the authority to adopt rules to administer the state's medical assistance program and are submitted by the Texas Department of Health under its agreement with the Health and Human Services Commission to operate the purchased health services program and as authorized under Chapter 15, sec.1.07, Acts of the 72nd Legislature, First Called Session (1991). sec.29.3001. Benefits and Limitations. (a) Counseling for emotional disorders or conditions provided by licensed professional counselors (LPCs) and licensed master social worker-advanced clinical practitioners (LMSW-ACPs) are covered services. (b) To be considered payable, the services must be reasonable and medically necessary as determined by the department or its designee. (c) Covered counseling services shall be reimbursed at 70% of the existing fee for similar services provided by psychiatrists and psychologists. (d) LPCs or LMSW-ACPs who are employed by or remunerated by another provider may not bill the Texas Medical Assistance Program directly for counseling services if that billing would result in duplicate payment for the same services. sec.29.3002. Conditions for Participation. (a) To participate in the Texas Medical Assistance Program, licensed professional counselors (LPCs) must be licensed by the Texas Board of Examiners of Professional Counselors in accordance with the Texas Licensed Professional Counselor Act, Texas Civil Statutes, Article 4512g. (b) To participate in the Texas Medical Assistance Program, licensed master social worker-advanced clinical practitioners (LMSW-ACPs) must be licensed as a master social worker and be recognized as being qualified for the practice of clinical social work by the Texas State Board of Social Worker Examiners. (c) These providers must: (1) meet the appropriate licensing requirements as required in subsections (a) and (b) of this section; (2) comply with all applicable federal and state laws and regulations governing the services provided; (3) be enrolled and participating in Medicare (this applies to LMSW-ACPs only as Medicare does not reimburse for services rendered by LPCs) ; (4) be enrolled and approved for participation in the Texas Medical Assistance Program; (5) sign a written provider agreement with the department or its designee; (6) comply with the terms of the provider agreement and all requirements of the Texas Medical Assistance Program, including regulations, rules, handbooks, standards, and guidelines published by the department or its designee; and (7) bill for services covered by the Texas Medical Assistance Program in the manner and format prescribed by the department or its designee. 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 January 24, 1995. TRD-9501001 Susan K. Steeg General Counsel, Office of General Counsel Texas Department of Health Effective date: February 14, 1995 Proposal publication date: August 19, 1994 For further information, please call: (512) 458-7236 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part I. General Land Office Chapter 1. Executive Administration Vacancies 31 TAC sec.1.3 The Texas General Land Office adopts an amendment to sec.1.3, regarding fees, without changes to the proposed text as published in the September 9, 1994, issue of the Texas Register (19 TexReg 7060). This rule is being amended to comply with House Bill 1009, Chapter 428, Acts of the 73rd Legislature, 1993, which requires state agencies to adopt rules setting forth the charges the agency will make for public records. Due to this adopted action, the charges for the duplication of public records will be consistent with the recommended charges adopted by the General Services Commission. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Natural Resources Code, sec.sec.31.064, 31.051, and 33.063, which provides the General Land Office with the authority to set and collect fees and make and enforce rules consistent with the law; and Texas Government Code, sec.552.261, which provides the General Land Office with the authority to adopt rules specifying the charges the agency will make 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 January 20, 1995. TRD-9500935 Garry Mauro Commissioner General Land Office Effective date: February 13, 1995 Proposal publication date: September 9, 1994 For further information, please call: (512) 305-9129 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part I. Texas Department of Public Safety Chapter 17. Administrative License Revocation Administrative License Revocation 37 TAC sec.sec.17.1-17.15 The Texas Department of Public Safety adopts new sec. sec.17.1-17.15, concerning procedures, implementation, and enforcement of Administrative License Revocation (ALR), with changes to the proposed text as published in the October 14, 1994, issue of the Texas Register (19 TexReg 8099). A public hearing was held on November 10, 1994, regarding the proposed rules. Changes have been made to the proposed rules as a result of the public comment process and to better harmonize the department's rules with those adopted by the State Office of Administrative Hearings (SOAH). The justification for these sections is enhanced public safety on public highways. These sections set forth procedures relating to issuance of notice of suspension, administrative suspension in an uncontested case, request for hearing and witnesses in a contested case, enforcement of suspension, and reinstatement of license. Comments on the proposed new rules were received from the Office of Court Management, Harris County Criminal Courts At Law, Mothers Against Drunk Driving, Texas Criminal Defense Lawyers Association, Austin Criminal Defense Lawyers Association, the State Office of Administrative Hearings, and Elly Del Prado Dietz. The following groups submitted comments which expressed general opposition to the proposed rules: Texas Criminal Defense Lawyers Association and Austin Criminal Defense Lawyers Association. The following groups and/or individuals submitted comments which expressed general support of the proposed rules: the Office of Court Management, Harris County Criminal Courts At Law, Mothers Against Drunk Driving, the State Office of Administrative Hearings, and Elly Del Prado Dietz. Full and objective analysis and consideration was given to all comments received, as evidenced by the revisions made from the rules as proposed, and the responses to comments in the following paragraphs of this preamble. The factual, statutory, and policy bases for parts of the rules which received comments, are described in these responses. A summary of the comments received and the department's responses are as follows: COMMENT: A comment was received opposing lifting or rescinding a suspension following an acquittal. RESPONSE: By the terms of statute, the department is required to lift the suspension if the defendant is acquitted of driving while intoxicated (DWI) arising out of the same transaction as the ALR suspension. Texas Civil Statutes, Article 6687b-1 and sec.5(d); Article 6701l-5, sec.2(r). COMMENT: Comment was received pointing out the administrative difficulty attendant to requiring the arresting officer to submit a copy of the filed criminal complaint along with an ALR report in suspension cases based on failures. Due to the large number of DWI cases filed in Harris County (16,305 in 1993), this requirement will impose an undue hardship on police officers, the district attorney's office, and the district clerk's office. The comment proposes that an amendment to sec.17.4(2) which would enable an officer to submit a sworn affidavit in lieu of field criminal complaint to summarize the information contained in the complaint. RESPONSE: ALR directs the arresting officer to submit a copy of the filed criminal complaint along with an ALR report. The rule as proposed essentially restates the statutory directive. In order to ameliorate the effect of this requirement, the department has attempted to construe this requirement expansively, by accepting a variety of charging instruments as constituting a "complaint" within the meaning of the statute. (This interpretation has itself been the target of criticism as being overly broad and in conflict with the statute.) COMMENT: Written comment and testimony was received which expresses the concern that ALR be effectively enforced. The commenter points out that a driver is not required to surrender his license at the time of the arrest, and therefore believes this is a weakness in the law. The commenter also expresses concern that there is insufficient emphasis placed on recovering the license post suspension. The suggestion is made that a deadline be set for surrender of the license following a suspension. It is also suggested that the department could give violators a pre-addressed envelope to facilitate physical surrender of the license. It is proposed that the department institute a schedule of "late fees" for failure to surrender a license, the fine to be increased in proportion to the delay in surrendering the license. Finally, the commenter proposes marking licenses in a manner which would alert law enforcement officials of a pending suspension, and to decrease the chance of false claims by violators that they were unaware of suspensions. RESPONSE: The Legislature has settled on a policy of providing notice and an opportunity for hearing prior to imposing a suspension under ALR. It is therefore the department's obligation to carry out the legislative mandate and to implement the statute as written. Several closely related enforcement issues are raised by this comment: (1) How to recover the driver's license document from an individual suspended under ALR; (2) How to enforce the penal statute for failure or refusal to surrender a suspended license; and (3) How to deter a person from committing the offense of driving while his license is suspended. The focus of the proposed rules is primarily to implement and enforce ALR; that is, to address all actions and procedures which are necessary to support a valid suspension up to the point of a criminal violation. Once a criminal violation occurs, the relevant criminal statute controls. Issues of enforcement of specific criminal violations exceed the intended scope of these administrative rules, and the grant of rule making authority under ALR. The department would not seek to institute a schedule of late fees without statutory authority. Enclosing a pre-addressed envelope to Texas licensees suspended under ALR may present a workable suggestion and will be given further consideration. Presently, the department does not consider that an administrative rule would be required to implement this suggestion, should it be adopted. There is a cost factor to be considered regarding this issue. In regard to the proposal that driver licenses be marked or punched to indicate a pending suspension, the department simply does not believe that ALR authorizes or contemplates such means of enforcement. The department believes that to deface a driver's license without clear and specific statutory authority would be illegal, and therefore declines to adopt such a rule. COMMENT: Commenters take exception to the proposed definition of "acquittal, " suggesting that the department's proposed definition is too narrow. The effect of the proposed definition would be to limit the circumstances in which an individual would be entitled to have a suspension lifted. RESPONSE: The statute does not define the term "acquittal." The Code of Criminal Procedure contains several references to acquittal, but no definition or single usage which would clearly control this issue. The issue of what dispositions constitute an acquittal arises frequently in the context of double jeopardy. Generally speaking, when jeopardy has attached, an acquittal prevents the state from retrying a defendant on the same criminal charge. Code of Criminal Procedure, Article 28.13. It is in this jeopardy context that the department understands the term to be used. There is no constitutional requirement that the outcome of a civil administrative hearing be contingent on the disposition of a collateral criminal matter. The general rule is that there is no collateral estoppel effect of one proceeding on another. However, as a matter of grace, the Legislature has created a procedural link between the two proceedings, and has thereby granted an additional measure of protection to persons accused of violating both the penal and administrative prohibitions against DWI. However, the department does not believe that the Legislature intended suspensions to be rescinded in every case where the DWI disposition was anything other than a guilty verdict. Finally, the department notes that in construing a substantially similar provision, California courts have reached the same conclusion as to the effect of a pre-jeopardy "acquittal" on an administrative suspension. Gikas v. Zolin, 863 P.2d 745 (Cal. 1993). COMMENT: Commenter challenges the definition of "criminal complaint" contained in sec.17.2, and points out that the term "complaint" is used or defined in the Texas Code of Criminal Procedure, Articles 15.04, 15.05, and 21. 22. RESPONSE: A criminal complaint is not the only possible method of initiating a criminal prosecution, whether for DWI or for another offense. The department believes that the Legislature did not intend to preclude suspensions merely because the criminal prosecution was instituted by some alternative method. Therefore, when a criminal prosecution is instituted by a charging document other than a criminal complaint (i.e., an indictment), then the department will accept the alternative charging instrument in lieu of the criminal complaint. COMMENT: The commenter objects to the omission of the term "repair" from the definition of maintenance records. The commenter also objects to the proposed rules as being in conflict with the Administrative Procedure Act (APA) . RESPONSE: The term "repair" will be included within the definition of maintenance records. It is not the intent of the department to adopt any rule in conflict with either the APA or with SOAH's rules. At the time that the department first proposed its rules, SOAH had not yet finally adopted its own rules. COMMENT: The commenter objects to proposed sec.17.3(b) and (c). The commenter states that the statute requires the arresting officer to serve notice of suspension in most cases, and that the department is authorized to serve notice of suspension only in cases where a specimen analysis is not received before the defendant is admitted to bail, released from custody, or committed to jail. Furthermore, the commenter argues that even in those cases, the department is still not authorized to serve notice of suspension unless the arresting officer attempts to serve notice and is unsuccessful. RESPONSE: The department differs with this construction. Taken as a whole, the statute permits the department to serve notice of suspension by specified means in the event that the arresting officer does not accomplish this task. The statute does not limit the circumstances in which the department is authorized to serve notice of suspension. The situation where a person is released from jail prior to the return of a specimen analysis is only one of many possible situations where the arresting officer might be unable to personally serve notice of suspension. If such were the case, the Legislature would not have created substantially the same provision for service of notice of suspension by the department in refusal cases. See Article 6701l-5(h). No delay necessarily exists between the time when a person refuses a test and the time when an officer is authorized to serve notice of suspension, yet a redundant provision exists for service by the department. However, sec.17.3(c) is sufficient to convey the department's interpretation. The term "attempt" is therefore deleted from sec.17.3(b). The revision should better distinguish what is original statutory language from what amounts to an interpretive rule or construction placed on the statute by the department. COMMENT: Having taken the position that the department is not authorized to service notice of suspension except in very limited circumstances, the commenter points out that the situation envisioned by sec.17.3(d) should never arise, and that chaos would result from multiple notices of suspension. RESPONSE: Notice of suspension is the operative document which initiates an ALR suspension. ALR is somewhat unique since it authorizes any Texas peace officer to institute an administrative proceeding on behalf of the department. Far from creating chaos, the rule is intended to clarify the result should notice be issued both by a peace office and by the department, that being that notice by the department must be treated as authoritative. A second notice of suspension is similar to an amended petition in a civil lawsuit, or an amended complaint in a criminal case. Moreover, this rule should not prejudice the defendant, since the issuance of notice by the department will usually expand the time in which a hearing request will be accepted. COMMENT: Regarding sec.17.4(2)(B)(ii) the commenter states that an arresting officer's ALR report must contain a copy of the criminal complaint filed in the case, and challenges the authority to submit a criminal complaint which has been delivered to a prosecuting attorney, but not necessarily filed. RESPONSE: The statute does not state when or how a complaint is "filed." The rule seeks to clarify this issue. A complaint is an affidavit made before a magistrate or a district or county attorney which charges the commission of an offense. Code of Criminal Procedure, Article 15.04 and Article 15.05. An information or indictment is the primary pleading document in a criminal case. Code of Criminal Procedure, Article 27.01. An information or indictment is "presented" when it is "filed" by the prosecutor with the proper court. Code of Criminal Procedure, Article 12.07 and Article 21.20. The criminal complaint must be filed, but the indictment or information based on that complaint need not yet be presented, before the ALR report is submitted by the arresting officer to the department. The arresting officer must comply with certain requirements. However, the statute does not go so far as to impose similar filing deadlines on the criminal prosecutor with jurisdiction over the case with respect to the filing of pleadings. Therefore, a complaint may be considered "filed" when it is delivered by a peace officer to either a prosecutor or a magistrate. It is not uncommon for a DWI complaint to be amended before the case is finally disposed. Complaints may be filed by a variety of methods, depending on the jurisdiction. Complaints need not be filed in person. For example, Code of Criminal Procedure, Article 15.09 authorizes complaints by telegraph. As noted, a criminal complaint is not the only means by which a criminal prosecution may be instituted. In felony cases, the charging instrument is usually a grand jury indictment. An indictment may be issued instead of, or in addition to, the criminal complaint. Since the same DWI arrest may result in a variety of possible charging instruments, the rule seeks to provide some flexibility while accomplishing the basic purpose of the statute. The requirement that an ALR report based on a failure must include a copy of the criminal complaint filed in the case and must be viewed in context of the entire statute. Peace officers are directed to provide prompt and complete information to the department following an ALR contact. This document provides assurance to the department that a bona fide DWI case exists and that the police officer intends to follow through with that DWI case. It provides the department with information concerning the identity of the defendant, the time, date and location of the offense, the criminal offense charged, and the court in which the criminal case has been initially filed. With this information, the department is better able to track the disposition of the case, and to lift the suspension when required to do so following an acquittal, as provided by Article 6687b-1, sec.5(d). Significantly, there is no statutory requirement that the complaint ever be made available to the defendant through the administrative proceeding. By contrast, a criminal defendant is entitled to receive a copy of the indictment or information in the criminal proceeding. Code of Criminal Procedure, Article 25.01 and Article 25.04. Nor is the complaint necessarily required to be introduced at the administrative hearing, or otherwise made part of the record. Other than submission to the department, there is no further provision made for handling the criminal complaint. Therefore, this provision does not appear to be intended to directly inure to the benefit of the defendant, but rather to provide information to the department to assist in tracking cases. COMMENT: In sec.17.5 the commenter challenges the authority of the department to define what constitutes a valid breath test. The second comment states that when technical supervisors testify at hearings, their use of the term "valid" will be unclear. Finally, it is suggested that the proposed rule "water down" the statutory requirements for a valid breath test. RESPONSE: The comment is correct in its assumption that the rule relates first and foremost to the department's in-house determination of whether a test is valid. The department is obliged to make its own determination of whether a breath test is valid. Article 6687b-1, sec.5(c). The department possesses rulemaking authority to set standards relating to breath specimen testing. The comment itself cites Article 6701l-5, sec.3(b). Another source of rulemaking authority is found in Article 6701l-5, sec.3(c). The proposed rule has been developed in consultation with the Scientific Director of the Breath Alcohol Testing Program. The purpose of the rule is to announce what the department believes to be a "valid" test, and will be controlling for purposes of the ALR program. The department submits that the requirements contained in the proposed rule are consistent with statutory requirements for breath alcohol testing. The importance of the department's initial determination becomes clear when one considers that historically, some two thirds of suspensions will be uncontested. The department is clearly within its authority to promulgate internal standards and controls. Since such procedures have general applicability throughout the state, they fit within the definition of a "rule" under the APA. Government Code, sec.2001.003(6). The department recognizes that SOAH and courts are not bound by the departmental determination of whether a breath test is valid. Clearly, it would be pointless to establish administrative oversight if SOAH were to be bound by the department's findings. But while such agency rules are not binding, they are entitled to serious consideration. Tarrant Appraisal District v. Moore, 845 S.W.2d 820, 823 (Tex. 1993). Though not binding in particular cases, such rules are intended to establish a measure of reliability and quality control for the breath alcohol testing program as a whole. COMMENT: In sec.17.5 the commenter challenges the department's authority to reprosecute a suspension following rescission, citing the absence of statutory authority to do so. The comment cites five illustrative scenarios where reprosecution might be inappropriate. RESPONSE: No statutory prohibition exists to bar reinstituting the administrative cause of action following rescission of the original notice of suspension. A litigant is usually entitled to take reasonable measures to avoid being forced to try a case before it is ready, subject to review by the courts. Pre-trial dismissal of a cause of action without prejudice is permitted in both civil and criminal practice. Double jeopardy does not bar refiling of administrative actions. Administrative res judicata would bar some of the situations described by this commenter. Some of the scenarios cited by the commenter describe situations where administrative proceedings have begun, and evidence has been received. If the parties have announced "ready," and if the department thereafter requests permission to dismiss the action, it would be within the administrative law judge's authority to deny the request to dismiss, or to grant dismissal with prejudice. In such a case, administrative res judicata could be invoked by the defendant as a bar to reprosecution. COMMENT: Regarding sec.17.8 the commenter requests information concerning cause numbers. RESPONSE: The department's primary method of tracking cases will be by the individual's Texas driver's license number. Where a defendant has not previously been assigned a Texas driver's license, then a similar number will be assigned. The department understands that SOAH will have a separate cause number for each case. The department expects to generate this number for SOAH during the process of scheduling hearings, and also expects that this number will be available to defendants or attorneys either when a hearing is requested, or shortly thereafter. However, the department believes it is premature to formulate this policy into a rule. COMMENT: In sec.17.8(2) the commenter objects to requiring the defendant to supply certain information to the department as a prerequisite to requesting an administrative hearing. Specific information which could be incriminating includes the identity of the driver, the county of arrest, and the date of arrest. RESPONSE: The department must obtain reasonable information to properly schedule a hearing. Any item of data which the department could possibly request could be a disputed fact question under some fact scenario. It is not the department's intent or policy to elicit privileged information from the defendant during the process of scheduling a hearing. Furthermore, mere use of the term "driver" does not preclude litigation of the issue at hearing. A defendant who denies driving is not precluded from contesting that issue, and the burden of proof remains with the department. The same applies to county and date of arrest. COMMENT: In sec.17.8(4) and (5) the commenter notes that when an attorney communicates a hearing request to the department, the department's response should be directed to the attorney. RESPONSE: Responses to communications are usually addressed to the person from whom they are received. However, where required by statute, certain communications must be addressed personally to a defendant. COMMENT: In sec.17.8(6) the commenter objects to the proposed rule as an incomplete and misleading statement of law. RESPONSE: Texas Civil Statutes, Article 6687b-1, sec.7(a) provides: A request for a hearing stays suspension of driver's license until the date of the final decision of the administrative law judge. Proposed sec.17.8(6) provides: A timely hearing request stays the suspension pending a final affirmative decision by the administrative law judge. There are two differences between the proposed rule and the statute. The first difference is the use of the term "timely." It is clear from the statute that a hearing request must be timely to stay the suspension. This rule lends emphasis to the requirement that hearing requests be timely. The second difference is that the word "affirmative" has been inserted to clarify that the suspension will not be imposed on a final decision of the administrative law judge unless such decision is in the affirmative. The department is authorized to appeal issues of law. Texas Civil Statutes, Article 6687b-1, sec.7(i). A negative finding is not necessarily a final disposition of the case. If the department takes an appeal from an adverse ruling, the department is not authorized to lift the stay and impose a suspension pending appeal. This point may seem obvious, but it is expected that the department will be handling high numbers of cases, and it is further expected that most appeals will be taken by the defendant following an affirmative finding. It is hoped that this rule may avoid possible confusion. COMMENT: In sec.17.8(7) regarding Hearing Requests the commenter challenges the department's authority to adopt a presumption that a hearing notice is presumed received on the fifth day after it was mailed, and suggests that certified mail be used instead. RESPONSE: The presumption is consistent with similar presumptions of notice found elsewhere in the statute. Texas Civil Statutes, Article 6687b-1, sec.4(c) and sec.7(p). The presumption does not purport to be binding on SOAH or the courts, though it may be found to have some persuasive value. The presumption announces department policy, of general applicability, consistent with the APA definition of "rule." Government Code, sec.2001.003(6). First-class mail is preferable to certified mail because it saves money. COMMENT: In sec.17.9 regarding Pre-Hearing Procedure the commenter objects to the department's proposal to promulgate any rules regarding pre-hearing procedure. The commenter further challenges the department's proposal to reject untimely witness requests. The commenter also challenges the department's authority to adopt this rule, and states that such procedure is governed by statute, the APA, and SOAH's rules. This commenter expresses concern that the department is imposing unnecessary requirements on defendants to deter them from making witness requests. RESPONSE: The Legislature granted both the department and SOAH authority to adopt rules to administer ALR. Texas Civil Statutes, Article 6687b-1, sec.9. As between agencies, the department has deferred to SOAH with respect to rules governing the conduct of hearings, since SOAH will have authority over the conduct of hearings. Nevertheless, pre-hearing procedure is within the department's scope of authority. Per statute, the department is required to conduct scheduling. The department is authorized to grant some continuances. The department will be responsible for making documents available to defendants before hearing. For these functions, it is necessary and appropriate for the department to adopt rules, and in so doing the department does not "usurp" SOAH's authority. At the same time, given that SOAH has adopted rules governing the same procedures, to avoid unnecessary duplication, proposed sec.17.9 has been omitted. The department's policy will be to affirmatively reject untimely witness requests. This policy is consistent with Article 6687b-1, sec.7(n). Furthermore, it is preferable to explicitly reject late witness requests, as a matter of policy, than to appear to accept such request and subsequently fail to secure attendance of the requested witness. It should be noted that the non-subpoena witness request procedure created by sec.7(n) is completely foreign to APA procedures; APA does not control this issue. COMMENT: In sec.17.9 regarding Discovery the commenter proposes an expedited discovery process, including a provision for telephone discovery, and for credit card charges to pay for document fees. The commenter notes that obtaining documents from the department has in the past taken a month or so. The commenter states that a defense attorney ought to be able to request documents at the time they request a hearing. The commenter also states that the filed criminal complaint should be made available for document request. RESPONSE: Proposed sec.17.9(c) has been deleted. SOAH's rules will control discovery. COMMENT: In sec.17.9(c)(4) the commenter objects to the use of the term "probable cause affidavit," and suggests alternative description. RESPONSE: The term "probable cause affidavit" is in use by the department on form DIC-23. For clarity, the term will be defined. The alternative language proposed by the comment is verbose. Proposed sec.17.9(c)(4) has been deleted. COMMENT: Commenter proposes deleting sec.17.9(d), and suggests that the department might not have authority to reschedule hearings, this being an exclusive function of SOAH. RESPONSE: The department has the primary responsibility to schedule hearings. The department has authority to reschedule hearings. The department must reschedule hearings per defendant request, under appropriate circumstances. The department has the right to reschedule a hearing, once, up until 48 hours before a hearing, if a requested witness is unavailable. The department believes that the statute does not contemplate or require intervention or oversight by SOAH with regard to this specific option to reschedule. Moreover, the department believes it has authority to reschedule a hearing by agreement with a defendant, also without required intervention of SOAH. COMMENT: Commenter suggests deletion of sec.17.10. RESPONSE: The proposed rule has been renumbered as sec.17.9. This rule is intended to provide continuity and cross-reference, hopefully of some benefit to readers. COMMENT: The commenter suggests deletion of sec.17.11 regarding Out-of-State Orders and Judgments. RESPONSE: The proposed rule has been renumbered as sec.17.10. The comment cites Article 6687b-1, sec.1(2): "alcohol-related or drug-related enforcement contact" means a driver's license suspension, disqualification, or prohibition order under the laws of this state or another state. This statutory definition harmonizes the statute with United States Constitution Article IV, sec.1. The wording and intent of the proposed rule is also similar to 37 Texas Administrative Code, sec.16.94. The rule is not intended to expand, nor does it expand, the effect of out-of-state judgments. COMMENT: The commenter recommends deletion of sec.17.12. RESPONSE: The proposed rule has been renumbered as sec.17.11. Proposed sec.17. 12(a), (b), and (c) have been deleted. It is common practice for administrative rules to restate the statute on which procedures and rules are based. Where judicial and administrative procedures are intertwined, it is sometimes helpful to restate portions of the statute in order to give a complete picture of procedures to be followed. However, since SOAH's rules will cover the same matters, portions of the department's proposed rule have been deleted. Under Article 6687b-1, sec.7(i), a person wishing to appeal is clearly required to provide a certified copy of the petition to both SOAH and the department. The consequence of failing to send the department a certified copy of the petition is that the department does not consider the appeal perfected. At a minimum, a defendant who fails to comply with sec.7(i) will not be granted a stay to which he may otherwise be entitled. The department cannot stay a suspension if the applicant does not comply with sec.7(i). Furthermore, it may be that failure to comply with sec.7(i) has the effect of depriving the court of jurisdiction over the appeal. COMMENT: The commenter recommends deletion of sec.17.12(d). The commenter argues that the department is not authorized to determine whether to grant or deny a stay pending appeal. The commenter proposes as an alternative that the department obtain an order at the county court level authorizing removal of the stay. RESPONSE: Proposed sec.17.12(d) has been renumbered as sec.17.12(a). The statute provides the following: Except as provided by this subsection, filing an appeal petition does not stay a suspension. The filing of an appeal petition stays a suspension if the person's driver's license has not been suspended as a result of any alcohol- related or drug-related enforcement contact, as defined in sec.1, Article 6687b- 1, Revised Statutes, in the five years immediately preceding the date of the person's arrest, and the person has not been convicted under Article 6701l-1, Revised Statutes, or sec.19.05(a)(2), Penal Code, in the ten years immediately preceding the date of the person's arrest, regardless of whether the prior alcohol-related or drug-related contact or conviction occurred prior to the effective date of this article. Texas Civil Statutes, Article 6687b, sec.7(h). The statute provides no forum for deciding the question of whether to grant or deny a stay. The controlling question is based on information available only to the department. By necessity, the department must decide for each case whether the appellant is entitled to a stay pending appeal. The department does not intend to deny a stay pending appeal simply because the appellant neglected to ask for one. By the same token, the department cannot simply grant a stay based on a representation that the defendant intends to appeal and claims he is entitled to a stay. In no way can sec.7(h) be interpreted as proposing the procedure suggested by the comment, i.e., that the stay is automatic pending appeal, and that the department must seek a court order to lift the stay. Furthermore, the department may not be immediately advised as to the pendency of an appeal. The procedure contemplated by this comment would require the department to assume that an appeal has been filed in each case. Such a procedure would run directly contrary to the obvious intent of the statute. COMMENT: The commenter recommends deletion of sec.17.12(e). The commenter argues that the department is not authorized to determine when a stay pending appeal becomes effective. COMMENT: The proposed rule has been renumbered as sec.17.11(b). The statute provides: A stay shall only be effective for a period of 90 days from the filing of an appeal petition, and on the expiration of that period the department shall impose the suspension previously ordered by the department. No extension of the stay or additional stay order may be granted by the department or the court. Texas Civil Statutes, Article 6687b-1, sec.7(h). The proposed rule provides: If a stay is granted pending appeal, it shall be effective from the date the petition is filed, not from the date of hearing or decision of the administrative law judge. The rule implements the statute. It is critical that defendants have reliable information as to the effect of the appeal, any stay pending appeal, and the time limit given that stay. Many defendants might otherwise mistakenly believe that they enjoy a grace period merely by giving notice of intent to appeal to either SOAH or the department. COMMENT: The commenter recommends deletion of sec.17.12(f). RESPONSE: The proposed rule has been deleted. COMMENT: The commenter recommends deletion of sec.17.13. The commenter proposes sending the final order of suspension via certified mail. RESPONSE: An original notice of suspension is required to be sent by certified mail when served by the department. To the contrary, a final order of suspension is not required to be sent by certified mail. Certified mail adds a considerable expense to the operational costs of a program. The presumption is consistent with similar provisions elsewhere in the statute. Such presumption is binding only on the department. COMMENT: The commenter recommends deletion of sec.17.12(f) as serving no purpose, having no relevance to ALR proceedings, and as being outside the scope of the departments' rulemaking authority. RESPONSE: The statute speaks to the issue of enforcement: A person whose driver's license is suspended under this section is subject to sec.34, Chapter 173, Acts of the 47th Legislature, Regular Session, 1941 (Texas Civil Statutes, Article 6687b). Texas Civil Statutes, Article 6687b-1, sec.7(o). It is appropriate for the rule to address matters raised in the statute itself. The rule is intended to address all actions and procedures which are necessary to support a valid suspension up to the point of a criminal violation. The presumption is consistent with similar provisions elsewhere in the statute. Such presumption is binding only on the department. Comment: The commenter proposes amending sec.17.9(d) relating to continuances, to make the rule more consistent with SOAH's proposed continuance procedure. The commenter further proposes an amendment to sec.17.9(c), relating to discovery, again to provide conformity with SOAH's proposed discovery rules. RESPONSE: Provisions relating to pre-hearing procedures as proposed in sec.17.9 have been deleted to avoid confusion and unnecessary duplication. The department recognizes that some ambiguity may exist regarding the underlying statutory provision, sec.7(n). However, it is unnecessary to compound the ambiguity by adopting rules in conflict with those adopted by SOAH. At issue are two distinct procedures by which the department may obtain a continuance: The department may reschedule a hearing once at least 48 hours before the time of the hearing if a person requested under this section is unavailable. In addition, the department may reschedule the hearing on a showing of good cause if the requested person is not available at the time of the hearing. Texas Civil Statutes, Article 6687b-1, sec.7(n). The first continuance procedure requires no showing of good cause. The department believes that granting such a continuance is therefore ministerial, and does not require intervention by the administrative law judge. The second continuance does require a showing of good cause, which implies the existence of someone to whom good cause must be shown. The department understands this second provision to refer to the administrative law judge. The new sections are adopted pursuant to Texas Civil Statutes, Article 6687b-1, sec.9; and Texas Civil Statutes, Article 6701l-5, sec.4a, which provide for administrative license suspensions upon certain alcohol-related violations involving use of a motor vehicle. Such violations are the refusal or failure of breath or blood tests. sec.17.1. Scope. The procedures for notice, hearing, and appeal contained in this title apply to suspensions and denials arising under the provisions of Administrative License Revocation (ALR), including Texas Civil Statutes, Article 6687b-1 and Texas Civil Statutes, Article 6701l-5. sec.17.2. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Acquittal-A legal judgment or certification of "not guilty" of a person charged with a crime, including a judgment following directed verdict. Address of record -A person's most recent residence address as shown by the records of the department in accordance with Texas Civil Statutes, Article 6687b, sec.sec.6, 14, and 20; or an alternate address provided to the department in accordance with Texas Civil Statutes, Article 6687b, sec.44B. Administrative License Revocation (ALR)-Refers to the suspension of a driver's license under either Texas Civil Statutes, Article 6687b-1 for breath or blood test failures, or under Texas Civil Statutes, Article 6701l-5 for breath or blood test refusals. Alcohol concentration -Has the meaning contained in Texas Penal Code, sec.49.01. Alcohol-related or drug-related enforcement contact-Has the meaning contained in Texas Civil Statutes, Article 6687b-1. ALR contact-A refusal to submit a breath or blood specimen as provided by Texas Civil Statutes, Article 6701l-5, or a breath or blood test failure, following an arrest for an offense under Texas Penal Code, sec. sec.49.04, 49.07, or 49.08. ALR report-A sworn report of an ALR contact filed by a peace officer and submitted to the department in accordance with Texas Civil Statutes, Article 6687b-1, sec.3, or a written report of an ALR contact submitted to the department in accordance with Texas Civil Statutes, Article 6701l-5, sec.2(d) and (e). ALR suspension or ALR license suspension -A suspension under Texas Civil Statutes, Article 6687b-1 for a breath or blood test failure, or a suspension under Texas Civil Statutes, Article 6701l-5 for a breath or blood test refusal. Arresting officer -Refers to a certified Texas peace officer who arrests a driver for an offense under Texas Penal Code, sec.sec.49.04, 49.07, or 49.08. Breath alcohol test-Has the meaning assigned in 37 Texas Administrative Code, sec.19.7. Breath test operator-Refers to the individual who takes a specimen of the driver's breath to determine alcohol concentration. Criminal complaint -Refers to any charging instrument, including, but not limited to, a complaint, an information, an indictment, or a similar sworn document clearly indicating an intent to proceed with criminal prosecution. Current address -Refers to the address given to an arresting officer by an arrested driver at the time of arrest, as distinguished from the "address of record." Defendant-Refers to a driver who has received notice of ALR license suspension and who has timely requested a hearing. Denial-Refers to the loss of the privilege to obtain a driver's license or permit. Department-Has the meaning assigned in Texas Civil Statutes, Article 6687b- 1. Director-Has the meaning assigned in Texas Civil Statutes, Article 6687b-1. Disqualification-Has the meaning assigned in Texas Civil Statutes, Article 6687b-2. Driver-Has the meaning assigned in Texas Civil Statutes, Article 6687b. Driver's license -Has the meaning assigned in Texas Civil Statutes, Article 6687b. Failure, or breath or blood test failure-Refers to the analysis of a test specimen which indicates an alcohol concentration specified in Texas Penal Code, sec.49.01(2)(B). Instrument or breath test instrument-Has the meaning assigned in 37 Texas Administrative Code, sec.19.7(i). License or license to operate a motor vehicle -Has the meaning assigned in Texas Civil Statutes, Article 6687b. Maintenance records -Refers to records pertaining to the inspection, maintenance, repair, and upkeep of the breath test instrument, on which the driver's alcohol concentration was measured. Nonresident-Has the meaning assigned in Texas Civil Statutes, Article 6687b. Peace Officer-Has the meaning assigned in Texas Penal Code, sec.1.07(a). Probable cause affidavit-A statement of facts in support of an arresting officer's belief that a person committed an offense. This statement shall describe the officer's reasonable suspicion for stopping a person and the probable cause to arrest the person. This statement may additionally include any other grounds known to the officer for believing the person committed the offense. The probable cause affidavit is normally submitted on Form DIC-23, or an approved alternate form. Public place-Has the meaning assigned in Texas Civil Statutes, Article 6687b-1. Refusal-Refers to a refusal to submit a specimen under the provisions of Texas Civil Statutes, Article 6701l-5 sec.2. Revocation of driver's license-Has the meaning assigned in Texas Civil Statutes, Article 6687b. Suspension of driver's license-Has the meaning assigned in Texas Civil Statutes, Article 6687b. Technical supervisor or certified breath test technical supervisor-Refers to the person who is responsible for maintaining and directing the operation of the breath test instrument used to analyze the specimen of the driver's breath, and who has been certified by the department under the provisions of sec.19.5 of this title (relating to Technical Supervisor certification). Test record or breath alcohol test record-Means the record of a breath alcohol test generated by a breath test instrument. sec.17.3. Notice of Suspension. (a) Notice of an ALR suspension may be served either by an arresting officer or by the department. (b) Notice given by the arresting officer. If a driver arrested for an offense under Texas Penal Code, sec.sec.49.04, 49.07, or 49.08, submits to the taking of a specimen of breath or blood and an analysis of the specimen shows the driver had an alcohol concentration of a level specified in Texas Penal Code, sec.49.01(2)(B), the arresting officer shall serve notice of driver's license suspension personally on the arrested driver. If a driver arrested for an offense under Texas Penal Code, sec.sec.49.04, 49.07, 49.08, refuses to give a specimen as designated by the arresting officer, the arresting officer shall serve notice of driver's license suspension personally on the arrested driver. (c) Notice given by the department. In the event that the arresting officer did not serve notice of suspension on the driver following an ALR contact, the department shall mail, by certified mail, notice of suspension to the driver's address of record, and to the driver's current address given in the ALR report, if different. If the department cannot verify that proper notice of suspension was served on the driver by the arresting officer following an ALR contact, the department may serve notice of suspension. Notice is presumed received on the fifth day after the day it is mailed. (d) Notice given by the department to control. In any case where notice of suspension is served by the arresting officer and notice of suspension is also sent by the department, notice sent by the department shall be controlling. sec.17.4. ALR Reports. Following an ALR contact, an arresting officer shall submit an ALR report to the department on a form approved by the department. (1) ALR Reports: breath or blood test refusal. An ALR report based on a breath or blood test refusal shall contain the following information: (A) The identity of the arrested driver by full legal name, date of birth, and driver's license number, if any; (B) the probable cause affidavit (Form DIC-23); (C) a copy of the statutory warning delivered to the driver prior to requesting a specimen of breath or blood (Form DIC-24); (D) the driver's current address; (E) documentation of the refusal (Form DIC-24), as evidenced by: (i) a written refusal to give a specimen, signed by the driver; or (ii) a statement signed by the officer stating that the driver refused to give a specimen and also refused to sign the statement requested by the officer under Texas Civil Statutes, Article 6701l-5, sec.2(c) and sec.2(e); (F) the notice of suspension (Form DIC-25) if served; and (G) any other information required by the department on its approved form. (2) ALR Reports: breath or blood test failures. An ALR report based on a breath or blood test failure shall be sworn to by the arresting officer and shall contain the following information: (A) The identity of the arrested driver by full legal name, date of birth, and driver's license number, if any; (B) the probable cause affidavit (Form DIC-23); (C) a copy of the statutory warning delivered to the driver prior to requesting a specimen of breath or blood (Form DIC-24); (D) the driver's current address; (E) a copy of the analysis of the specimen, such as a photocopy of the breath test result; and (F) the notice of suspension (Form DIC-25) is served; and (G) a copy of the criminal complaint that has been filed with a magistrate or delivered to a local prosecuting attorney with jurisdiction over the offense; and (H) any other information required by the department on its approved form. sec.17.5. Intake. (a) The department may reject any ALR report and decline to prosecute any ALR suspension. (b) For purposes of an ALR suspension based on a breath test failure, a valid breath alcohol test record is required. To be considered valid, the breath test record must meet the following criteria: (1) There must be no "invalid" message. (2) Results must be clearly printed. (3) All air blanks must be 0.000. (4) The test record must bear the signature of the breath test operator. No additional report, memo, record, or maintenance record is required to validate the breath alcohol test. sec.17.6. Rescission. (a) The department may rescind any ALR suspension. (b) If for any reason the department declines to prosecute an ALR suspension, or rescinds suspension once imposed, then the department shall send notice of rescission to the defendant at this address of record, and to his current address, if different. (c) A decision by the department to rescind notice of suspension has no binding precedential value and the department may later prosecute a suspension arising out of the same incident. sec.17.7. Administrative Suspension of Driver's License. After notice of suspension has been properly served, the department shall impose a suspension as provided by law, unless the driver makes a timely hearing request as provided in sec.17.8 of this title (relating to Hearing Requests). sec.17.8. Hearing Requests. A person who receives notice of suspension may request a hearing as provided. (1) A hearing request must either be delivered in writing, including by facsimile transmission, or be transmitted by telephone, to the department at its headquarters in Austin, at the address or phone number contained in the notice of suspension. (2) A hearing request may be submitted on a form provided by the department. A hearing request must contain sufficient information to enable the department to identify the defendant and to schedule the hearing. The hearing request must include the defendant's full legal name, date of birth, driver's license number, the date of arrest, the county of arrest, and such additional non-privileged information as may be requested by the department to schedule the hearing. (3) A hearing request must be timely. In order to be considered timely, a hearing request must be received by the department at its headquarters in Austin not later than 5:00 p.m. on the 15th day after: (A) the date notice of suspension was served by the arresting officer; or (B) the date notice is presumed to have been received, according to the records of the department. (4) The department shall reject any untimely hearing request. When a written hearing request is received and rejected, the department shall mail written notice to the defendant that the hearing request was received and rejected, and state the reason for rejection. When a telephone hearing request is received and rejected, the department shall mail a written notice of the reason for rejection only upon request. (5) Upon receipt of a timely hearing request, the department shall schedule a hearing and mail written confirmation to the defendant. (6) A timely hearing request stays the suspension pending a final affirmative decision by the administrative law judge. (7) The department will presume that notice of hearing date, time, and location was received on the fifth day after the day it was mailed. sec.17.9. Hearings. ALR hearings shall be held in accordance with Texas Civil Statutes, Article 6687b-1, and in accordance with 1 Texas Administrative Code, Chapter 159. sec.17.10. Out-of-State Orders and Judgments. The department shall give full faith and credit to convictions, suspensions, denials, and disqualifications arising in other states. sec.17.11. Appeals. (a) Upon receipt of an appeal petition, the department shall determine whether the defendant is entitled to a 90 day stay of suspension pending appeal, in accordance with Texas Civil Statutes, Article 6687b-1, sec.7(h). For purposes of determining whether an appeal stays a suspension, the department will consider prior alcohol-related and drug-related enforcement contacts. For purposes of this subsection, alcohol-related and drug-related enforcement contacts occurring both prior to and after the effective date of ALR shall be considered. The date of a prior alcohol-related or drug-related enforcement contact, not the date of the conduct, shall be controlling. (b) If a stay is granted pending appeal, it shall be effective from the date the petition is filed, not from the date of hearing or decision of the administrative law judge. (c) A remand does not stay the suspension. sec.17.12. Final Order of Suspension. If an administrative hearing is not requested, then before the effective date of suspension, the department shall mail a final order of suspension to the driver's address of record and to the driver's current address, if different. The order shall state the length of suspension and the procedure for reinstatement. A final order of suspension is not considered notice of suspension for purposes of requesting an administrative hearing under this section. A final order of suspension is presumed received on the fifth day after the day it is mailed. sec.17.13. Effect of Acquittal; Notification to the Department. (a) Upon notification that a criminal charge under Texas Penal Code, sec.sec.49.04, 49.07, or 49.08, has resulted in an acquittal, the department shall not impose a suspension arising out of the same conduct or transaction. If a suspension has already been imposed, the department shall rescind the suspension and remove references to the suspension from the computerized driving record of the defendant. (b) To ensure that the department receives notice of acquittal, it is recommended that the defendant send a certified copy of the judgment of acquittal to the department at its headquarters in Austin. A defendant should send a written request which identifies the defendant by name and by driver's license number, states the date and county of arrest, and requests rescission of the suspension. The department reserves the right to verify the acquittal. Upon verification, the department shall rescind the suspension and remove references to the suspension from the defendant's computerized driving record. (c) For purposes of this section, the following types of dispositions of any filed criminal complaint shall not be regarded as an acquittal: (1) a pre-trial order of dismissal where jeopardy has not attached; (2) a reduction of charges; (3) a conviction on a lesser included charge; (4) a disposition under Texas Penal Code, sec.12.45; or (5) any discharge or dismissal brought about by a failure to bring a cause of action to speedy trial within the time required by the state or federal constitutions. sec.17.14. Enforcement of Suspensions. (a) Knowledge of a license suspension is presumed if an arresting officer served notice of suspension on the driver, or if the department mailed notice of suspension to the driver's address of record and to the driver's current address given by the defendant to the arresting officer, if different. (b) A Texas driver's license, permit, or privilege to operate a motor vehicle in Texas, may be suspended under provisions of ALR. The loss of the privilege to drive in Texas shall apply to unlicensed drivers and to non-residents. The department shall not issue a driver's license to any person who is subject to an order of suspension or denial. (c) Upon suspension of a driver's license, a Texas licensee must surrender any suspended license to the department. If a person cannot comply, he must submit an affidavit to the department stating the reason why he cannot produce and surrender the license. Failure or refusal to surrender a license may result in the department initiating criminal proceedings against that licensee, as provided by Texas Civil Statutes, Article 6687b, sec.32(4). A person may surrender a suspended license by any of the following methods: (1) A person may deliver a suspended license to an ALR Senior Hearing Examiner employed by the department, to any Legal Services staff member, to any uniformed officer of the department, or to any department office during regular business hours. (2) A person may mail a suspended license to the Texas Department of Public Safety, Driver Improvement and Control, Post Office Box 4040, Austin, Texas 78773-0001. (3) Any department employee who receives a suspended license shall send the license to the department's main headquarters in Austin. (d) ALR suspensions shall be enforced as provided by Texas Civil Statutes, Article 6687b, sec.34. sec.17.15. Reinstatement. A driver's license suspended under Texas Civil Statutes, Article 6687b-1 or under Texas Civil Statutes, Article 6701l-5 may not be reinstated and another driver's license may not be issued until the suspended driver or defendant files an appropriate application and pays to the department a reinstatement fee of $100, in addition to any other fees required by law. 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 January 23, 1995. TRD-9501011 James R. Wilson Director Texas Department of Public Safety Effective date: February 15, 1995 Proposal publication date: October 14, 1994 For further information, please call: (512) 465-2890