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 V. General Services Commission 
  Chapter 113. Central Purchasing Division 
  
  Purchasing 
 
  1 TAC sec.113.4 
 
  The General Services Commission adopts an amendment to  sec.113.4, concerning 
the Centralized Master Bidders List without changes to the proposed text as 
published in the November 7, 1995, issue of the Texas Register  (20 TexReg 
9235). 
 The amendment is being adopted to properly name the Centralized Master Bidders 
List (CMBL), to specify the number of bids a vendor must respond to in order to 
be an active bidder on the CMBL, and to clarify use of the CMBL by the 
commission and state agencies/universities in accordance with Government Code, 
Title 10, Subtitle D, Chapter 2155. 
 The amendment to sec.113.4 will clarify that the CMBL replaces the Bidders List 
and will remove inactive bidders from the CMBL in order to increase opportunity 
for other bidders to do business with the state. 
 Only one entity provided comments stating that the commission had exceeded its 
delegated rule-making authority to prescribe procedures for the required use of 
the CMBL for delegated purchases under $15,000. Additionally, comment was made 
that the inability to supplement the CMBL with other bidders that are not 
Historically Underutilized Businesses (HUBs) does not allow flexibility and more 
competition thus assuring obtaining the best value for a purchase. 
 Texas Tech University commented against the adoption of this amendment. 
 The commission has not exceeded its rule-making authority with regard to the 
amendment to sec.113.4. The amendment is adopted to implement the provisions of 
the Government Code, Title 10, Subtitle D. State Purchasing and General Services 
(the "Act"), sec.2155.261(1)(2). Section 2155.261(1) states that Subchapter E. 
Master Bidders List of the Act is applicable to a purchase or other acquisition 
under the Act or Chapters 2156, 2157 and 2158 of the Act for which competitive 
bidding or competitive seal proposals are required. Section 2155.261(2) states 
that Subchapter E. Masters Bidders List is applicable to a state agency that 
makes a purchase or other acquisition under the Act or Chapters 2156, 2157, and 
2158 of the Act including the commission and an agency that makes an acquisition 
under sec.2155.131. Delegation of Authority to State Agencies or sec.2155.133. 
Delegation of Authority to Institution of Higher Education. 
 Section 2155.268(c) of the Act states that a state agency may supplement the 
bidders list with its own list of HUBs if it determines that the supplementation 
will increase the number of historically underutilized businesses that submit 
bids. There is no provision under the law to provide for supplementation of the 
CMBL with other bidders that are not HUBs. 
 The amendment is adopted under the authority of the Government Code, Title 10, 
Subtitle D, Chapter 2155 which provides the General Services Commission the 
authority to adopt procedures necessary to develop and maintain the CMBL. 
 
  This agency certifies that the rule as adopted has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on January 24, 1996. 
 TRD-9601032 
  David Ross Brown 
 Assistant General Counsel 
 General Services Commission 
    Effective date: February 14, 1996 
 Proposal publication date: November 7, 1995 
 For further information, please call: (512) 463-3960 
         
             Part I. General Services Commission 
  Chapter 125. Travel and Transportation Division 
  
  Travel Management Services 
 
  1 TAC sec.sec.125.3, 125.7, 125.17, 125.27 
 
  The General Services Commission adopts amendments to sec. sec.125.3, 125.7, 
and 125.17, and new sec.125.27, concerning the State Travel Management Program, 
with changes to the proposed text as published in the November 17, 1995, issue 
of the  Texas Register (20 TexReg 9517). 
 The amendments and new section establish procedures by which the commission 
must contract with private travel agents as mandated in the Government Code, 
Title 10, Subtitle D, sec.2171.052. 
 In sec.125.3 the definition for Satellite Ticket Printer (STP) Location 
contained a typographical error that was printed in the proposed preamble. The 
word "devise" has been changed to "device" in the definition for STP. 
 The amendment to sec.125.3 adds new definitions. Amendment to sec.125.7 deletes 
language and adds language to allow the commission to contract with as many 
private travel agencies as possible with preference to Texas resident entities. 
Section 125.17 references contracting procedures in sec.125.27. The new 
sec.125.27 implements procedures by which the commission contracts with private 
travel agents pursuant to the Act,  sec.2171.052. 
 Comment was received requesting that the definition of "resident bidder" in 
sec.125.3 be changed to include as a "resident bidder" a contractor whose 
largest group of owners have their principal place of business in this state. 
 Comment was also made that the mandatory rebate of 10% of net airline 
commissions set forth in sec.125.27(c)(8) could be problematic, particularly as 
it relates to sec.125.27(c)(5) regarding enumerated services to be provided at 
no additional charge to the state. The stated concern was that the rules assume 
travel agents receive commissions to cover cost from airlines or non-air vendors 
and, therefore, may prevent travel agencies from covering their costs in 
providing travel services to the state. 
 Request was made to add language to sec.125.27 to state that if the state were 
to negotiate special noncommissionable fares with the airlines, then travel 
agencies would no longer be required to provide travel services to the state 
without compensation. 
 Comment was expressed that for the past eight years a large share of official 
state travel business had been contracted for with an out-of-state travel agency 
owned and operated by the airlines. Recommendation was made that the word 
"reasonable" be inserted between the words "additional" and "standard" in 
sec.125.27(j)(4). 
 Southwest Chapter of the American Society of Travel Agents and Texas Travel 
Industry Coalition; and SatoTravel were in favor of the amendments and new 
section. 
 The commission disagrees with the request to add additional language to the 
definition of a resident bidder. The definition as proposed is consistent with 
the definition set forth in Texas Government Code, Chapter 2252. Contracts With 
Governmental Entity. 
 The commission disagrees with the comments that the 10% rebate of net airline 
commissions as it relates to sec.125.27(c)(5) regarding enumerated services to 
be provided at no additional charge to the state would prevent travel agencies 
from recovering their costs in providing travel services to the state. The 
commission concludes that such rebates and services can be provided without 
preventing travel agents from recovering their costs due to the fact that 
booking reservations by travel agencies will become more streamlined as airlines 
implement cost-effective innovations such as ticketless travel. 
 The commission disagrees with the comment concerning noncommissionable fares. 
The State does not negotiate such fares at present. If the state negotiates such 
fares in the future, the commission may address the issue of compensation to 
travel agencies for their services at that time. The commission disagrees with 
the request to insert the word "reasonable" between the words "additional" and 
"standards" as reasonableness is implicit in an agencies needs. 
 The amendments and new section are adopted under Government Code, Title 10, 
Subtitle D, Chapter 2171, which provides the General Services Commission with 
authority to implement rules consistent with this Chapter. 
 
 
  sec.125.3. Definitions.  The following words and terms, when used in this 
chapter, shall have the following meanings, unless the context clearly indicates 
otherwise. 
   
     Computerized Reservations System (CRS)-One of a number of interactive 
electronic systems linking individual travel agencies to a central airline-owned 
computer, allowing agents to make availability inquiries and travel 
reservations. 
   
     Nonresident bidder -Refers to a person who is not a resident bidder within 
the meaning of Texas Government Code, Chapter 2252. 
   
     On-Site Location -Full-service travel agency office located on state 
property that sells, issues, and delivers tickets for high-volume state 
agencies. 
   
     Passenger Name Record (PNR)-Record that contains all travel arrangements 
and information for a particular trip for a specific traveler. 
   
     Resident bidder -Refers to a person whose principal place of business is in 
this state, including a contractor whose ultimate parent company or majority 
owner has its principal place of business in this State. 
   
     Revenue Sharing -A percentage of commissions received from the booking of 
State of Texas business travel by the contract travel agencies/agents which is 
remitted to the State. 
   
     Satellite Ticket Printer (STP) Location-Location whose sole function is the 
printing of travel documents by means of a ticket printing device. 
   
     Transition-Designated period of time that a terminated contracted travel 
agency or travel agent provides travel services until a successor has been 
selected that can adequately service the State's contract. 
   
     Travel Agent Services Contract-Contracting process used by the commission's 
central travel office to ensure travel agencies meet certain reasonable 
requirements to provide travel services for the State of Texas. 
 
   
  sec.125.7. Travel Agent Services. 
 
  (a) (No change.) 
   
  (b) Travel agent services are provided under contracts between selected travel 
agents and the commission. The commission shall contract with travel agents that 
meet certain reasonable requirements promulgated by the commission, allowing 
contracts by as many private travel agents as possible with preference given to 
Texas resident entities. The contracting process is described in sec.125.27 of 
this title (relating to Travel Agency Contracts). 
 
  (1) These services are available to all agencies, in accordance with 
sec.125.19 of this title (relating to Participation by state agencies). 
   
  (2) The length of the contracts is determined by the commission. 
   
  (3) State agencies may begin participation at any time during the term of a 
contract, with the concurrence of the commission. 
     
  (c)-(e) (No change.) 
 
     
  sec.125.17. Travel Vendor Selection Process. 
 
  (a) The commission shall contract for travel agent services as described in 
sec.125.27 of this title (relating to Travel Agency Contracts). The commission 
may contract for all other travel services through either competitive bidding, 
competitive sealed proposals, or negotiation at its discretion. 
   
  (b) (No change.) 
 
     
  sec.125.27. Travel Agent Services Contracts. 
 
  (a) A travel agency seeking to contract with the state to provide travel 
services to state agencies shall complete and submit an application on a form 
prescribed by the commission. 
   
  (b) An application must include, but is not limited to, the following: 
 
  (1) information identifying business organization, including corporate and/or 
doing business as name, address, telephone, and facsimile numbers; principal 
place(s) of business; federal tax identification number; Texas Taxpayer 
Number(s); Airline Reporting Corporation (ARC) and/or International Airline 
Travel Agent Network (IATAN) number(s); 
   
  (2) list of locations within Texas, willing to and capable of generating 
tickets and other travel related services, including addresses, telephone and 
facsimile contacts that will provide services to the State and the respective 
ARC/IATAN number of each or evidence of designation by all commercial airlines 
to provide travel reservations and ticketing services required for state 
business travel; 
   
  (3) verifying documentation that the vendor has been in business as a travel 
agency, under the same ARC number, for a minimum of five years, and has been in 
business as a travel agency providing services using a Computer Reservation 
System (CRS) for a minimum of five years; 
   
  (4) verifying documentation that the vendor has a minimum of three full-time 
equivalent travel employees as defined by the Internal Revenue Service, who can 
provide the required state travel services; 
   
  (5) an affidavit that the vendor meets the requirements identified in 
subsection (c) of this section and agrees that services to state agencies will 
be rendered pursuant to the requirements stated herein and set forth in the 
state's Travel Agent Services Contract. 
     
  (c) Vendors seeking to qualify for a Travel Agent Services Contract to provide 
travel services to state agencies shall: 
 
  (1) identify an employee experienced in the travel business as the vendor's 
central point of contact or project manager for the state and the other travel 
contractors and inform the commission in writing of any changes in designation; 
   
  (2) at the time of application, be in business as a travel agency under the 
same ARC number for a minimum of five years, and as a travel agency providing 
services using a Computer Reservation System (CRS) for a minimum of five years; 
   
  (3) maintain a minimum of three full-time equivalent travel employees as 
defined by the Internal Revenue Service who can provide the required state 
travel services; 
   
  (4) make travel arrangements in accordance with the state's travel rules 1 TAC 
sec.125.19 of this title (relating to Participation by State Agencies), and all 
terms and conditions set forth in the Travel Agent Services Contract; 
   
  (5) provide reservations, ticketing, reticketing, ticket delivery, and refunds 
at no additional charge to the state, meaning that the total charges to the 
state shall not exceed the sum of charges assessed by the airlines, rental car 
vendors, and hotels; 
   
  (6) specify minimum volumes for STP, CRS, on-site locations, and terms for 
ticket delivery in writing to individual state agencies prior to the selection 
process; 
   
  (7) agree that the state shall have the right to review, obtain, and copy all 
state business travel records pertaining to the services rendered, permit the 
state access to its premises for an on-site inspection during normal business 
hours, and maintain all applicable accounting records relating to state business 
travel transactions for a minimum period of three years from transaction date 
for audit purposes; 
   
  (8) remit 10% of all net airline commissions received from state business 
travel in accordance with the procedures established by the commission; 
   
  (9) submit travel data reports as identified in the Travel Agent Services 
Contract on diskette in ASCII format or other automated or electronic means as 
the commission may specify; 
   
  (10) have access to and obtain information from the Internet, as directed by 
the commission, to disseminate information and facilitate communication in the 
most cost-efficient means; and 
   
  (11) require the project manager to attend at least one implementation 
training session annually and semiannual sessions thereafter if these sessions 
are established by the commission; 
   
  (12) commit to servicing the state agency for a minimum of one year from the 
date of selection; 
   
  (13) comply with applicable state laws, rules and procedures related to 
contracting or subcontracting, including but not limited to sec.sec.111.11-
111.24 of this title which pertains to contracting with Historically 
Underutilized Businesses. 
     
  (d) An application that is incomplete or that contains inaccurate information 
will not be approved and the vendor will be notified that corrections are 
needed. 
   
  (e) The commission shall notify a travel agency of approval or denial of an 
application for a contract not later than 60 days after the date the commission 
receives a completed application. 
   
  (f) The commission may refuse an application for contract based on one or more 
of the following: 
 
  (1) the applicant does not meet the requirements specified in subsection (b) 
or (c) of this section; 
   
  (2) the application contains false information; 
   
  (3) the applicant's past and current record of performance under any prior 
travel contracts, the commission's bidders' list or any unresolved complaints on 
record from state agencies. 
     
  (g) An award of a travel agent services contract by the commission shall 
signify that the contractor meets the minimum qualifications to provide travel 
agent services. There is no guarantee that any volume of business will result 
from the award of a travel agent services contract by the commission. 
   
  (h) Term of Travel Agent Services Contract: 
 
  (1) Each contract shall be for a term of three calendar years, beginning on 
the date the commission approves the application. 
   
  (2) The commission will send notification and application for renewal to the 
vendor approximately 90 days prior to expiration of the three-year period. 
     
  (i) Revocation of Travel Agent Services Contract: 
 
  (1) A travel agent services contract may be (revoked or canceled by the 
commission: 
 
  (A) if it is discovered the contractor has provided false information on the 
application; 
   
  (B) for failure to follow procedures established by the state, the travel card 
provider, or any other travel service contractor as designated by the state; 
   
  (C) for failure to process refunds as prescribed in the contract; 
   
  (D) for failure to provide accurate reports or revenue sharing payments to the 
commission or state agencies as prescribed in the contract; and 
   
  (E) for failure to follow state policies in regard to the use of state 
contractors as prescribed in the contract. 
     
  (2) A travel agent services contract may be canceled by the vendor: 
 
  (A) upon written notification by U.S. certified mail to the commission and 
subject to the transition period described in subsection (k) of this section. 
   
  (B) the transition period shall begin upon the commission's receipt of 
notification. 
     
  (3) If a travel agent services contract is canceled by either party: 
 
  (A) the contractor(s) shall be required to delete from their records all state 
agency data and traveler profile information obtained for state business travel; 
   
  (B) the contractor(s) shall follow transition guidelines as specified in 
subsection (k) of this section; 
   
  (C) the vendor(s), under the same majority ownership, will not be eligible to 
reapply for two years following the completion of the transition period. 
     
  (4) Based on the reason for cancellation, the contractor(s), under the same 
majority ownership, may be ineligible for all future consideration. 
     
  (j) Selection by state agencies: 
 
  (1) The commission shall provide to state agencies, by the most cost efficient 
means, a listing of all travel agencies authorized by contract to book state 
travel. The listing will be updated quarterly; 
   
  (2) Each state agency that is required to use contracted travel agencies as 
specified in sec.125.19(f) of this title shall select the contractor(s) to 
handle its travel business from the commission's list; 
   
  (3) In the selection process, state agencies shall consider participation by 
as many contractors as possible, with preference given to Texas resident 
contractors in accordance with sec.113.8 of this title (relating to 
Preferences). State agencies shall consider: 
 
  (A) the contractor's ability, qualifications and availability to meet the 
needs of the state agency's operations; 
   
  (B) whether the contractor can provide the necessary services within the time 
required, without delay or interference; 
   
  (C) the quality of performance of previous contracts or services; 
   
  (D) any previous or existing noncompliance by the contractor with 
specifications contained in the Travel Agent Services Contract, state agency 
requirements or any laws, rules or policies related to contracting with the 
state; 
   
  (E) the quality of references from previous contracts or services. 
     
  (4) State agencies have varying priorities and requirements. Selection 
criteria may vary and additional standards and services may be imposed by a 
state agency based on need. State agencies shall establish specific criteria and 
procedures to use in selecting a provider or providers from travel agencies 
contracted by the commission. A state agency's criteria shall be documented and 
evaluation should be consistent for all contractors; 
   
  (5) State agencies requiring STPs, CRSs, or other on-site services shall 
commit to a minimum of one year participation, provided that all contractual 
obligations are fulfilled by the travel agent. 
     
  (k) In the event that a state agency determines that it will no longer use the 
services of a particular travel agency or the contractor chooses to terminate 
services to the agency or to terminate its Travel Agent Services Contract with 
the commission, the contractor(s) shall: 
 
  (1) extend services to the state and the state agency for a period of 120 days 
or until such time as services from the successor are available, as determined 
by the state; 
   
  (2) agree to exercise their best efforts and cooperation to effect an orderly 
transition to a successor; 
   
  (3) at the request of a state agency, negotiate in good faith a plan with the 
successor to establish the transition with the least impact on the state agency 
and travelers; and 
   
  (4) provide a diskette copy in ASCII format of all travelers' profiles to the 
state agency, after which the contractor(s) shall delete all state agency data 
and traveler profile information obtained for state business travel from their 
records. 
   
  (5) release all PNRs for future state business travel to the state agency 
and/or selected travel agent; 
     
  (l) A vendor may protest the commission's denial of its application, or the 
commission's revocation or cancellation of a Travel Agent Services Contract by 
filing a written protest with the commission within 30 days after the date the 
commission sent notice of the disposition to the vendor. Commission staff will 
then prepare a recommendation for review by the executive director of the 
commission. The decision of the executive director is final. 
 
  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, 1996. 
 TRD-9601031 
  David Ross Brown 
 Assistant General Counsel 
 General Services Commission 
    Effective date: February 14, 1996 
 Proposal publication date: November 17, 1995 
 For further information, please call: (512) 463-3960 
         
                 Part VII. State Office of Administrative Hearings 
  Chapter 155. Rules of Procedure 
  
  sec.1 TAC 155.5 
 
  The State Office of Administrative Hearings (SOAH) adopts an amendment to 
sec.155.5, concerning the rules of practice and procedure before the Office by 
adding a new subsection (e), with minor changes made by SOAH to the proposed 
text as published in the November 24, 1995, issue of the Texas Register (20 
TexReg 9799). 
 The amendment, as modified, adopts a seal to certify the agency's official 
acts, including certification of administrative license revocation (ALR) hearing 
records made pursuant to Texas Transportation Code, Chapters 522, 524, or 724. 
This amendment allows SOAH to affix its seal on the administrative record of ALR 
proceedings which are appealed. The seal will aid in certifying the records as 
true, correct and complete. The seal will also aid SOAH in certifying other 
official acts of the agency. The adopted rule changes the language in the 
proposed rule from "the transcript of the records" to "the administrative 
record". Since the administrative record includes more than just the hearing 
transcript, this change clarifies that SOAH certifies the entire administrative 
record, not just the transcription. 
 SOAH is a state agency pursuant to Government Code, Chapter 2001, sec.2001. 
003(7) which defines "state agency" as a "state officer, board, commission, or 
department with statewide jurisdiction that makes rules or determines contested 
cases" and Chapter 2003, sec.2003.021(a) which defines SOAH as a state agency. 
Government Code, Chapter 2051, sec.2051.001, authorizes the adoption of a seal 
with which to attest to official document, certificate, or other written paper 
by a "commission or board created by state law and a commissioner whose office 
is created by state law." A commissioner is a single administrative or executive 
officer. See, Standard Securities Service Corporation v. King, 341 S.W.2d 423 
(Tex. l960). 
 The state officer who heads SOAH bears the title "chief administrative law 
judge." This officer is the functional equivalent of a commissioner since the 
chief administrative law judge exercises all the powers normally invested in a 
commissioner to hire staff, to set and enforce agency policy, to adopt rules, 
and to coordinate and supervise the operation of the agency's business. As a 
state officer, the chief administrative law judge is also the legal equivalent 
of a state commission or board under the definition of "state agency" in 
Government Code, Chapter 2001, sec.2001.003(7). The chief administrative law 
judge, like his equivalent the commissioner, can adopt an agency seal as 
required to perform agency duties. State agencies may adopt rules which describe 
the procedure or practice requirements of the agency (pursuant to Government 
Code, Chapter 2001, sec.2001.003 and sec.2001.004) and may exercise powers 
necessarily implied from duties imposed by statute.  City of Sherman v. Public 
Utility Commission, 643 S.W.2d 681 (Tex. 1983). 
 Chapter 159, sec.159.37, of this title, (relating to Appeal of Judge's 
Decision), requires SOAH to certify the record for purposes of appeal of ALR 
hearings. A court of record affixes its seal to certify the official record of a 
proceeding. The seal is a safeguard to deter alteration of the record, to 
distinguish the original of the record, and to ensure the authenticity of the 
record. SOAH's duty to prepare and certify ALR records implies the ability to do 
those things which will facilitate the certification of those records. The 
amendment allows SOAH to certify its records as done by all other courts of 
record in the state and gives SOAH the benefits conferred by use of a seal. 
 No comments were received regarding adoption of the amendment. 
 The amendment is adopted under Government Code, Chapter 2003, which authorizes 
the State Office of Administrative Hearings to conduct contested case hearings; 
Government Code, Chapter 2001, sec.2001.004, which requires agencies to adopt 
rules of practice setting forth the nature and requirements of formal and 
informal procedures; and under Texas Transportation Code, Chapter 524, 
sec.524.002 and Chapter 724, sec.724.003, which provide that SOAH and the 
Department of Public Safety shall adopt rules to administer the Administrative 
License Revocation statute. 
 The following statutes are affected by this amendment: Texas Transportation 
Code, Chapters 522, 524, and 724; Texas Penal Code, Chapter 49; and Government 
Code, Chapters 2001 and 2003. 
 
 
  sec.155.5. General. 
 
  (a)-(d) (No change.) 
   
  (e) The Office may obtain a seal to authenticate its official acts, including 
certifying copies of the administrative records made pursuant to hearings under 
this Chapter and Chapter 159 of this title, (relating to the Rules of Procedure 
for Administrative License Suspension Hearings) or pursuant to Texas 
Transportation Code, Chapters 522, 524, or 724. The seal shall have a star with 
five points and the words "State Office of Administrative Hearings" engraved 
upon it. 
 
  This agency hereby certifies that the section 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 25, 1996. 
 TRD-9601175 
  Shelia Bailey Taylor 
 Deputy Chief Administrative Law Judge 
 State Office of Administrative Hearings 
    Effective date: February 16, 1996 
 Proposal publication date: November 24, 1995 
 For further information, please call: (512) 475-4993 
         
                 
  TITLE 4. AGRICULTURE 
 Part II. Animal Health Commission 
  Chapter 35. Brucellosis 
  
  Subchapter A. Eradication of Bucellosis in Cattle 
 
  4 TAC sec.sec.35.1, 35.2, 35.6 
 
  The Texas Animal Health Commission adopted amendments to  sec.sec.35.1, 35.2, 
and 35.6, concerning branding of cattle and movement of card-test positive, 
supplemental test negative cattle from market, without changes to the proposed 
text as published in the December 5, 1995, issue of the Texas Register (20 
TexReg 10245). 
 The amended rules are necessary to amend sec.sec.35.1, 35.2(h)(1) and (2), (m) 
(3), and (o), and 35.6 to eliminate the option of jaw-branding in order to 
comply with federal requirements for interstate movement. The amended rules are 
also necessary to amend sec.35.2(i) to clarify that card-negative cattle in a 
market consignment with a card-test positive, supplemental-test negative animal 
may move from the market without restriction. Section 35.2(i) is also amended to 
remove the reference to "designated" pens; this change is to avoid confusion 
with feedlot designated pens. 
 The amendments are adopted under the Texas Agriculture Code, Texas Civil 
Statutes, sec.163.061, which provides the Commission with the authority to adopt 
rules regarding testing, vaccination, and movement. 
 The amendments implement the Agriculture Code, Chapters 161 and 163, which 
provides the Commission with the authority to act to eradicate brucellosis 
 The amendments implement the Agriculture Code, sec.sec.163.002, 163.061, 163. 
064, 163.065, 163.066, and 163.069, which provides the Commission with the 
authority to regulate and require testing, branding, and movement; and to 
classify cattle. 
 No other code or article are affected by these amendments. 
 
  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, 1996. 
 TRD-9601051 
  Terry Beals, DVM 
 Executive Director 
 Texas Animal Health Commission 
    Effective date: March 1, 1996 
 Proposal publication date: December 5, 1995 
 For further information, please call: (512) 719-0714 
         
           Chapter 41. Fever Ticks 
  
  4 TAC sec.41.1 
 
  The Texas Animal Health Commission adopts an amendment to sec.41.1, concerning 
tick eradication, with changes to the proposed text as published in the December 
5, 1995, issue of the Texas Register (20 TexReg 10246). The only change made to 
the proposed text in sec.41.1(a)(1) was to replace the hyphen (-) with the word 
"or"; so it now reads "... State or Federal epidemiologist ...". 
 The amendment is necessary to amend the definition of an adjacent premise in 
sec.41.1(a)1(1) to clarify its meaning, and in  sec.41.1(h)(5) to remove 
ambiguous language concerning the starting date for dipping infested cattle when 
live ticks are found. 
 The amendment is adopted under the Texas Agriculture Code, Texas Civil 
Statutes, Chapter 16, which provides the Commission with the authority to adopt 
rules to eradicate ticks. 
 The amendment implements the Agriculture Code, sec.167.003 and sec.167.029, 
which authorizes the Commission to adopt necessary rules to eradicate ticks and 
to provide conditions for the handling and movement of livestock. 
 No other code or article is affected by the amendment. 
 
 
  sec.41.1. Tick Eradication . 
 
  (a) Definition of Terms. The following words and terms, when used in this 
chapter, shall have the following meanings, unless the context clearly indicates 
otherwise. 
 
  (1) Adjacent premise-A premise that borders an exposed or infested premise, 
including premises separated by roads, double fences, or fordable streams. A 
premise that would normally be classified as adjacent may be exempted from 
adjacent premise requirements by a State or Federal epidemiologist if the 
premise is separated from the exposed or infested premise by double fencing, 
sufficient to prevent the spread of ticks, with one of the fences being game-
proof. 
   
  (2)-(21) (No change.) 
     
  (b)-(g) (No change.) 
   
  (h) Required Dipping of Livestock. 
 
  (1) The owner or caretaker of livestock on in fested or exposed premises in 
the tick eradication quarantine area, or infested or exposed premises in the 
temporary pre ventative quarantined area must present them to be scratch 
inspected and dipped with subsequent dipping every seven to 14 days until the 
livestock are moved from the premise in accordance with these regulations, 
except as provided in subsection (5) of this section. 
   
  (2) The 14-day interval may be extended due to circumstances beyond the 
control of the owner upon approval by an authorized representative of the 
commission. In no event will the extension be more than three days. If the 
extension is granted, no certificate for movement will be issued after the 14th 
day, and the next dip must be on the original 14 day schedule. 
   
  (3) All scratch inspection and dipping must be done under instructions issued 
by the commission. All requirements will be in written form directed to the 
owner or caretaker. An inspector for the Commission will deliver the 
instructions in person along with a copy of these regula tions. All premise 
boundaries will be listed in the instructions. 
   
  (4) The scratch inspection and first dip must be within 14 days from the date 
infestation or exposure is dis covered unless otherwise approved by the 
commission. 
   
  (5) The starting date for infested premises for Table I (Pasture Vacation 
Schedule, South of Highway 90) and Table II (Pasture Vacation Schedule, North of 
Highway 90), is the date of the first clean dipping of 100% of the livestock. 
The starting date for exposed premises for Table I and Table II is when 100% of 
the livestock on the premise have been dipped. Copies of Table I (Pasture 
Vacation Schedule, South of Highway 90) and Table II (Pasture Vacation Schedule, 
North of Highway 90) may be obtained from the Texas Animal Health Commission, 
P.O. Box 12966, Austin, Texas 78711. 
   
  (6) A dip is not official unless 100% of the live stock within the premise 
affected are dipped on schedule. 
     
  (i)-(o) (No change.) 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on January 24, 1996. 
 TRD-9601050 
  Terry Beals, DVM 
 Executive Director 
 Texas Animal Health Commission 
    Effective date: March 1, 1996 
 Proposal publication date: December 5, 1995 
 For further information, please call: (512) 719-0714 
         
                 
  TITLE 10. COMMUNITY DEVELOPMENT 
 Part I. Texas Department of Housing and Community Affairs 
  Chapter 21. Introductory Provisions 
  
  10 TAC sec.21.20 
 
  The Texas Department of Housing and Community Affairs (the Department) adopts 
a new Reporting sec.21.20, concerning annual reporting requirements for Housing 
Finance Corporations (HFCs). The new rule provides procedures for the reporting 
to the Department by Housing Finance Corporations or their designees. The rule 
was adopted with changes to the proposed text as published in the November 24, 
1995, issue of the Texas Register  (20 TexReg 9800). 
 A part of subsection (f) was deleted because it was not intended to be included 
in the new rule, but was a commentary regarding the implementation of the rule. 
 At its meeting on November 13, 1995, the Governing Board (the Board) of the 
Texas Department of Housing and Community Affairs adopted Proposed Rule sec.21. 
20. On January 16, 1996 after public testimony the Board adopted the proposed 
rule in final form. 
 During the comment period, the Department received two written comments. The 
comments requested that the report forms be specifically referenced or included 
in the rule. 
 The Department's response is that the forms are still being reviewed by 
Department staff as well as individuals and organizations representing the 
Housing Finance Corporations. While the Department will accept comments on the 
forms, it would be inefficient to delay the promulgation of the Rule pending the 
finalizing of the forms, since the forms are still being developed. Also, the 
forms may be subject to change periodically, depending on how effective they are 
for the purposes for which they were designed. Thus the Department will not 
include the forms as part of the Rule. 
 This new rule is adopted pursuant to the Texas Government Code, Chapters 2306; 
and 2001, and Acts of the 74th Legislature, sec.9 of chapter 951, amending 
subchapter C, Chapter 394, Local Government Code, by adding sec.394. 027. 
 The new rule affects Local Government Code Chapter 394. 
 
 
  sec.21.20. Reporting Requirements for Housing Finance Corporations. 
 
  (a) A Housing Finance Corporation subject to the provisions of Chapter 394, 
Local Government Code shall file or cause to be filed with the Texas Department 
of Housing and Community Affairs, (the Department), on or before August 1 of 
each year, reports in accordance with this section. 
   
  (b)  The single family report shall include information for each single family 
mortgage loan made by the housing finance corporation during the preceding 12 
months ending June 30 of the year the report is filed. The report shall include 
data reported by the originating lenders under the Federal Home Mortgage 
Disclosure Act. 
   
  (c) The multifamily report shall include information similar to the geographic 
and demographic information contained in the Departments multifamily compliance 
for and tenant income certification (household size, income and project 
location). 
   
  (d) The reports must be in a format and on a form prescribed by the 
Department. Either the Housing Finance Corporation or a third party designee 
shall file the report with the Department. The reporting form prescribed by the 
Department, shall be filed in paper form, as well as in an electronic form 
acceptable to the Department (computer tape, disk or upload electronically). 
   
  (e) On or before August 1 of the reporting year a third party reporting 
entity, other than a housing finance corporation, shall file the report and 
notice with the Department. Notice shall also be filed with the Housing Finance 
Corporation and the Texas Bond Review Board. The notice shall be in writing 
certifying compliance with the filing and reporting requirement of this section. 
If this information is not filed then the third party reporting entity shall 
file a written notice certifying and explaining the reason for the non 
compliance, including a date compliance will be achieved with the Department and 
the Housing Finance Corporation. A housing corporation may include the reporting 
and notice requirements in the applicable bond transaction documents. 
   
  (f)  On or before August 1 of the reporting year a Housing Finance Corporation 
that is not using a third party entity to report shall file the reports required 
by this section with the Department, or notify the Department of the non-filing 
and provide a date by which the reports will be filed. 
 
  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 29, 1996. 
 TRD-9501206 
  Larry Paul Manley 
 Executive Director 
 Texas Department of Housing and Community Affairs 
    Effective date: February 19, 1996 
 Proposal publication date: November 24, 1995 
 For further information, please call: (512) 475-3948 
         
                 
  Title 16. ECONOMIC REGULATION 
 Part I. Railroad Commission of Texas 
  Chapter 3. Oil and Gas Division 
  
  Conservation Rules and Regulations 
 
  16 TAC sec.3.10 
 
  The Railroad Commission of Texas proposes an amendment to sec.3.10, concerning 
production of oil and gas from different strata. The proposed amendment conforms 
sec.3.10 to Texas Natural Resources Code sec.85.046 and sec.86. 012, as amended. 
The proposed amendment to sec.3.10 authorizes the commission, after notice and 
an opportunity for affected parties to request a hearing, to approve commingled 
production administratively. Approval without a hearing is authorized when 
neither the applicant nor the parties entitled to notice have requested a 
hearing, and the commission finds that production in a commingled state will 
prevent waste, promote conservation or protect correlative rights. The proposed 
amendment also delineates persons entitled to notice of both initial and 
subsequent applications for commingling exceptions and clarify what constitutes 
commingled production. 
 Notice of initial applications involving only commission- designated fields 
must be given to all operators in the fields sought to be commingled. For 
initial applications involving hydrocarbon reservoirs that have not been 
designated as fields and for subsequent applications, the proposed notice 
provisions incorporate the presumption, also found in the statewide spacing rule 
(sec.3.37(c) of this title), that operators closer than the minimum lease-line 
distance prescribed by applicable field rules may be affected by the requested 
exception and are therefore entitled to notice of the request. The standard for 
consideration of a requested exception is set out in sec.3. 10(b) which uses the 
newly proposed definition of "different strata." 
 The proposed additional language in sec.3.10(b)(1) was selected because it 
tracks the amendments to the underlying statutes and concisely states that only 
an opportunity for a hearing, and not necessarily an actual hearing, is required 
prior to the grant of an exception. A definition of "different strata" has been 
inserted as new sec.3.10(a)(1) and the phrase "different strata" is used 
throughout the proposed text of this section to cure apparent ambiguities in the 
existing section caused by the use of different phrases to describe the same 
concept. The specific language of the proposed definition of "different strata" 
was chosen because it is a concise statement of the concept of "different 
strata" as that phrase has historically been interpreted by the commission. 
 The notice provisions in sec.3.10(c) were added to the proposed section to 
formalize the commission's existing procedures regarding notice so that 
interested persons can easily identify those operators entitled to notice and 
the manner in which notice must be given. In addition, formalizing the notice 
procedures will help assure that notice requirements are applied consistently. 
 The specific categories of operators to be given notice reflect the presumption 
that all operators of adjacent tracts and of tracts within minimum lease-line 
distances, as set by applicable field rules, may be affected by a proposed 
exception for a given well. The notice requirements are broader for initial 
applications because of the potential precedential effect of a grant of an 
exception and the concomitant need for the commission to have information and 
input from all directly and indirectly impacted operators. The proposed notice 
requirements are broadened to include all operators of adjacent tracts and of 
tracts nearer than minimum applicable lease-line distances when at least one of 
the hydrocarbon reservoirs for which commingling is sought has not been 
designated as a field by the commission. This broadening reflects recognition of 
the potential for differing interpretations of whether a given accumulation of 
hydrocarbons should be considered as part of a commission-recognized field and 
the accompanying uncertainty as to which commission-designated fields might be 
affected by the proposed commingling. 
 Rita E. Percival, systems analyst for the Oil and Gas Division, has determined 
that for each year of the first five years the rule, as proposed, will be in 
effect, there will be no fiscal implications for state or local government, nor 
additional cost to small business, as a result of enforcing or administering 
this rule. 
 Colin K. Lineberry, hearings examiner in the Office of General Counsel, has 
determined that for each year of the first five years the rule, as proposed, 
will be in effect, the public benefit anticipated as a result of enforcing the 
rule will be a reduction of the regulatory burden by removing the requirement 
that a hearing be held on every initial application for approval of commingled 
production as well as by clarifying notice requirements and eliminating 
ambiguity in the use of the term "different strata." It is anticipated that 
there will be a beneficial effect on small businesses as formal hearings will no 
longer be required on unprotested applications resulting in a reduction in the 
costs incurred in obtaining exceptions to allow commingling. There are no 
anticipated additional economic costs to persons who are required to comply with 
the rule as proposed. 
 Comments may be submitted to Colin K. Lineberry, hearings examiner, Office of 
General Counsel-Oil and Gas Section, Railroad Commission of Texas, P.O. Box 
12967, Austin, Texas 78711-2967. The deadline for filing comments is 30 days 
after publication in the Texas Register. Comments should refer to the docket 
number of this rule-making proceeding, 20-0209676. 
 The commission proposes the amendment pursuant to Texas Natural Resources Code, 
sec.sec.81.052, 85.201, and 86.042, which authorizes the commission to prevent 
waste of oil and gas and to protect correlative rights. 
 The following code sections are affected by this rule: Texas Natural Resources 
Code, sec.sec.81.052, 85.201, and 86.042. 
 
 
  sec.3.10. Restriction of Production of Oil and Gas from Different Strata. 
 
  (a) General prohibition. Oil or gas shall not be produced from different 
strata through the same string of casing except as provided in this section. As 
used in this section, "different strata" means two or more different commission-
designated fields (including multiple stratigraphic or lenticular accumulations 
of hydrocarbons regulated as a single field by the commission), or one or more 
commission-designated fields and any other hydrocarbon reservoir. 
   
  (b) Exception. After notice and an opportunity for a hearing, the commission 
or its delegate may grant an exception to subsection (a) of this section to 
permit production from a well or wells commingling oil or gas or oil and gas 
from different strata, if commingled production will prevent waste or promotion 
conservation or protect correlative rights. 
   
  [(b) Exception. 
 
  [(1) After notice and hearing, the commission or its delegate may grant an 
exception to subsection (a) of this section to permit production from a well or 
wells commingling oil or gas or oil and gas from two separate reservoirs or 
multiple stratigraphic or lenticular accumulations of oil or gas or oil and gas 
if commingled production will: 
 
  [(A) prevent waste; 
   
  [(B) promote conservation; or 
   
  [(C) protect correlative rights. 
     
  [(2) Subsequent exceptions for wells producing from the same reservoirs may be 
granted administratively without further notice and hearing.] 
     
  (c) Notice of Application for Exception 
 
  (1) Timing of Notice 
 
  (A) The applicant shall give notice of each request for an exception by 
serving a copy of the application to commingle production on all affected 
operators at the same time the application is filed with the commission. 
   
  (B) Service shall be accomplished by delivering a copy of the application to 
the party to be served, or to the party's duly authorized representative, in 
person, by agent, by courier receipted delivery, by first class mail to the 
parties last known address, by telephone document transfer to the recipient's 
current telecopier number or by such other manner as the commission may direct. 
     
  (2) Operators Presumptively Affected By Application 
 
  (A) An initial exception to commingle production exclusively from different 
commission-designated fields is presumed to affect all operators in each of the 
commission-designated fields proposed to be produced through the same string of 
casing. 
   
  (B) An initial exception to commingle production from a commission-designated 
field with production from one or more hydrocarbon reservoirs that have not been 
designated by the commission as a field is presumed to affect all operators in 
each of the different commission-designated fields proposed to be produced 
through the same string of casing and all operators of adjacent tracts, and of 
tracts nearer to the well for which a commingling exception is sought than the 
longest applicable minimum lease-line distance. 
   
  (C) An exception to commingle production exclusively from the same commission-
designated fields for which an initial commingling application has previously 
been granted is presumed to affect all operators of adjacent tracts, and of 
tracts nearer to the well for which a subsequent commingling exception is sought 
than the longest applicable minimum lease-line distance, who have a well 
completed in one or more of the commission-designated fields for which 
commingling is sought. 
   
  (D) An exception to commingle production from a commission-designated field 
and one or more hydrocarbon reservoirs in specified correlative intervals that 
have not been designated by the commission as fields, for which an initial 
commingling exception involving the same fields and hydrocarbon reservoirs has 
previously been granted, is presumed to affect all operators of adjacent tracts, 
and of tracts nearer to the well for which a commingling exception is sought 
than the longest applicable minimum lease-line distance. 
     
  (3) Notice Required Only to Affected Operators 
 
  (A) Except as provided in subparagraph (B) of this paragraph, all operators 
described in paragraph (2)(A)-(D) of this subsection are affected by a requested 
exception to allow commingling and the applicant shall give each of them notice 
of the application as provided in paragraph (1)(A) of this subsection. 
   
  (B) The commission or its delegate may determine that an operator described in 
paragraph (2)(A)-(D) subsection will be unaffected by a requested exception to 
allow commingling. This determination shall be made only upon the applicant's 
written request and provision to the commission of competent geological or 
engineering data establishing conclusively that commingling production as 
requested by the applicant will not physically interfere with the production of 
hydrocarbons by the operator for which an unaffected determination is requested. 
An applicant for an exception to allow commingling is not required to give 
notice of the application to an operator who has been determined to be 
unaffected as provided in this subparagraph. 
       
  (d)[(c)] Commingled production. Commingled production of gas from different 
strata  pursuant to subsection (b) of this section shall be considered 
production from a common source of supply for purposes of proration and 
allocation. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on January 24, 1996. 
 TRD-9601062 
  Mary Ross McDonald 
 Acting General Counsel, Office of General Counsel 
 Railroad Commission of Texas 
    Earliest possible date of adoption: March 8, 1996 
 For further information, please call: (512) 463-7008 
         
               Chapter 9. Liquefied Petroleum Gas Division 
  
  Subchapter B. Basic Rules 
 
  16 TAC sec.9.183 
 
  The Railroad Commission of Texas adopts an amendment to  sec.9.183, relating 
to uniform protection standards, without changes to the proposed text as 
published in the November 14, 1995,  Texas Register (20 TexReg 9356). 
 The commission adopts the amendments to allow an additional construction method 
for storage racks. The text will not be republished. 
 Section 9.183 describes the protection required for LP-gas transfer systems and 
storage containers, including fencing, guardrails, signs and lettering, and 
storage specifications. The adopted amendment in subsection (e) relating to 
storage racks allows carriage bolts to be used instead of welding provided that 
they are at least 3/8 inch in size, the heads of the bolts are to the outside of 
the rack, and the nuts are tack-welded on the inside of the rack. 
 No comments were received regarding the proposed amendment. 
 The amendment is adopted under the Texas Natural Resources Code, sec.113.051, 
which authorizes the commission to adopt rules relating to any and all aspects 
or phases of the LP-gas industry that will protect or tend to protect the 
health, welfare, and safety of the general public. 
 The following is the statute, article, or code affected by the adopted 
amendment: Texas Natural Resources Code, sec.113.051. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's authority. 
 Issued in Austin, Texas, on January 24, 1996. 
 TRD-9601060 
  Mary Ross McDonald 
 Acting General Counsel, Office of General Counsel 
 Railroad Commission of Texas 
    Effective date: February 14, 1996 
 Proposal publication date: November 14, 1995 
 For further information, please call: (512) 463-7008 
         
         
  Subchapter T. DOT MC-330 and MC-331 Transport Containers 
 
  16 TAC sec.9.1777 
 
  The Railroad Commission of Texas adopts an amendment to  sec.9.1777, relating 
to container, appurtenances and related equipment, without changes to the 
version published in the November 14, 1995, Texas Register (20 TexReg 9357). 
 The commission adopts this action to delete an unnecessarily restrictive 
requirement currently in the rule. 
 Section 9.1777 describes requirements for transport containers, including 
appurtenances, mounting equipment, and trailers. The adopted amendment deletes 
paragraph (3) of subsection (f) because it is overly restrictive and burdensome 
for container manufacturers, subframers, and other licensees. The requirement 
means tanks have to be built especially for use in Texas and adds additional 
cost without resulting in a subsequent increase in safety. A major container 
manufacturer in Texas noted this discrepancy when its 3,000-gallon tank fell two 
inches short of the ratio requirement. The adopted amendment will allow units 
from other states to be sold and registered in Texas. Other nonsubstantive 
amendments include some changes in wording or punctuation to provide clearer 
language. 
 The amendment is adopted under the Texas Natural Resources Code, sec.113.051, 
which authorizes the commission to adopt rules relating to any and all aspects 
or phases of the LP-gas industry that will protect or tend to protect the 
health, welfare, and safety of the general public. 
 The following are the statutes, articles, or codes affected by the adopted 
amendment: Texas Natural Resources Code, sec.113.051. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's authority. 
 Issued in Austin, Texas, on January 24, 1996. 
 TRD-9601061 
  Mary Ross McDonald 
 Acting General Counsel, Office of General Counsel 
 Railroad Commission of Texas 
    Effective date: February 14, 1996 
 Proposal publication date: November 14, 1995 
 For further information, please call: (512) 463-7008 
         
             Part II. Public Utility Commission of Texas 
  Chatper 23. Substantive Rules 
  
  Records and Reports 
 
  16 TAC sec.23.14 
 
  The Public Utility Commission of Texas adopts an amendment to sec.23.14, with 
changes to the proposed text as published in the August 25, 1995, issue of the 
Texas Register (20 TexReg 6570). 
 The adopted rule sec.23.14 permits any telecommunications utility as defined in 
Public Utility Regulatory Act (PURA)  sec.3.002(9) or any electric utility as 
defined in PURA sec.2.0011(1) to keep records, books, accounts, or memoranda 
outside the State of Texas so long as they return them to the state for any 
inspection authorized by the Public Utility Regulatory Act of 1995. 
 The public benefit anticipated as a result of enforcing the amendment will be 
an increased efficiency on the part of the utilities due to their ability to 
develop record keeping and retention systems that best reflect the manner in 
which they do business. 
 The following submitted comments in response to the August 25, 1995, Texas 
Register publication: Central and Southwest Companies (CSW); El Paso Electric 
Company (EPE), Gulf States Utilities Company (GSU), Texas Telephone Association 
(TTA); and Texas Statewide Telephone Cooperative, Inc. (TSTCI) 
 Following the publication of the proposed rule, the Commission conducted a 
public hearing on October 3, 1995, at which the commenting parties further 
discussed the issues raised in their comments. 
 All parties who commented or attended the public hearing are generally 
supportive of the proposed rule which did not include the electric utilities in 
the rule. CSW and GSU supported the proposed rule but urged the commission to 
broaden it to include electric utilities. Other commenters were opposed to 
including electric utilities within the rule. 
 The Commission agrees with GSU and CSW that electric utilities should be 
permitted the same freedom as telecommunication utilities to keep records out of 
state as long as they are returned to the state for PURA authorized inspections. 
 All comments, including those not specifically referenced herein, were fully 
considered by the commission. 
 The rule is authorized by PURA sec.3.1545 which permits telecommunications 
utilities to remove books, accounts, records, and memoranda from the State. 
 The rule is adopted under the Public Utility Regulatory Act of 1995, sec.1. 101 
and sec.3.1545, 74th Legislature, Regular Session 1995, as amended by House Bill 
2128, which provides the Public Utility Commission of Texas with the authority 
to make and enforce rules reasonably required in the exercise of its powers and 
jurisdiction. 
 
  This agency hereby certifies that the section 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 26, 1996. 
 TRD-9601159 
  Paula Mueller 
 Secretary of the Commission 
 Public Utility Commission of Texas 
    Effective date: February 16, 1996 
 Proposal publication date: August 25, 1995 
 For further information, please call: (512) 458-0100 
         
         
  Customer Service and Protection 
 
  16 TAC sec.23.57 
 
  The Public Utility Commission of Texas adopts an amendment to sec.23.57 
(relating to Telecommunications Privacy) with changes to the proposed text as 
published in the September 15, 1995, issue of the Texas Register  (20 TexReg 
7251). The amendment is necessary to comply with sec.3.3025 of the Public 
Utility Regulatory Act of 1995 (PURA), which requires telecommunications 
providers who provide Caller ID services to notify the Caller ID Consumer 
Education Panel, the commission and the customer when such customer has 
originated a blocked call, but there was a failure to block the calling party 
information from a line equipped with per-call or per-line blocking. Section 
3.3025 of PURA also creates the Caller ID Consumer Education Panel, which is by 
definition a state agency advisory committee. Therefore, the amendment is also 
necessary to comply with Texas Revised Civil Statutes Annotated, Article 6252-33 
(Vernon Supp. 1995), which requires the commission to set out in a rule the 
purpose, task, and method by which a state agency advisory committee reports to 
the commission, as well as to set out the requirements for an annual evaluation 
of the advisory committee by an evaluation team. The amendment further states 
that a commission staff member shall serve as liaison between the panel and the 
commission. 
 The amendment also prohibits telecommunications providers that offer Caller ID 
services from using a calling party's name or number to allow the called party 
to contact the calling party, when the calling party had blocked delivery of the 
calling party information with the original call. 
 Finally, the amendment changes the application of subsections (a)-(d) to 
reference dominant certificated telecommunications utilities as opposed to local 
exchange carriers for jurisdictional clarification in consideration of the new 
PURA. 
 A public hearing on the amendment was held at Commission offices on October 10, 
1995 at 10:00 a.m. Representatives from the Women's Advocacy Project, Texas 
Statewide Telephone Cooperative, Inc, (TSTCI), Fort Bend Telephone Company 
(FBTC), and Southwestern Bell Telephone Company, (SWB) attended the hearing. 
 The Women's Advocacy Project spoke in favor of the rule and, in particular, in 
favor of new subsection (h) regarding a utility's usage of calling party 
information to allow a called party to contact a calling party when the original 
call's information was blocked. FBTC asked what the Commission envisioned as 
proper formal notice to the customer that per-line blocking has been activated 
on their line. SWB stated that the CPNI provisions of the rule should apply to 
all telecommunications utilities, and not just dominant certificated 
telecommunications utilities (DCTU) as currently set out in the rule. SWB 
further stated that it appeared that the Commission added subsection (h) solely 
in response to the FCC requirement regarding Call Return blocking (see CC Docket 
Number 91-281, adopted May 5, 1995), and that the Commission should not create 
state policies based exclusively on a federal action, if not so required by such 
federal authority. TSTCI attended the hearing, but did not comment on the 
record. 
 Each of the parties speaking at the public hearing filed written comments 
addressing the same concerns expressed at that proceeding; therefore, the 
Commission addresses the concerns raised at the public hearing in its discussion 
on the written comments. 
 The commission received written comments on the proposed amendments from the 
Texas Telephone Association (TTA), TSTCI, the Office of Public Utility Counsel 
(OPC), SWB, FBTC, Consumers Union, AT&T Wireless Services, Inc. (formerly McCaw 
Cellular Communications and referred to herein as AT&T Wireless), Southwestern 
Bell Mobile Systems (SBMS), GTE Southwest Incorporated and Contel of Texas, Inc. 
(GTE), the Texas Council on Family Violence, and the Center for Battered Women 
(referred to herein as the Center). 
 TTA, TSTCI, OPC, and Consumer's Union commented that subsections (a)-(f) of the 
rule should apply to all new telecommunications entrants and not just the DCTUs, 
stating that the privacy interests of the customers of new entrants would be 
jeopardized otherwise. 
 The Commission agrees that the privacy interests of each telecommunications 
utilitys customer is equally important, however the Commission has very limited 
authority over non-dominant utilities. Specifically, sec.3.051(s)(1) of the 
Public Utility Regulatory Act (the Act) states that [e]xcept as otherwise 
specifically provided by this Act, the commission shall have only the following 
authority over a holder of a certificate of operating authority or service 
provider certificate of operating authority: to enforce the applicable 
provisions of this Act as provided by Subtitle I, Title I, of this Act 
(regarding violations and enforcement); to assert jurisdiction over a specific 
service in accordance with sec.3.272 of this Act; to require co-carriage 
reciprocity; and to regulate condemnation and building access (emphasis added). 
Given these statutory restrictions, the Commission is without jurisdiction to 
require that the provisions of subsections (a)-(d) apply to new entrants into 
the telecommunications market, unless and until the entrants are found to be 
dominant. However, there is specific statutory language in PURA sec.3.501 that 
addresses the Commission's jurisdiction with respect to subsections (e) and (f) 
of sec.23.57, relating to customer proprietary network information (CPNI). The 
terminology appropriate for these two subsections will be discussed further in 
response to the parties' comments on those subsections. 
 TSTCI and Consumers Union commented that they believe that the requirements 
relating to CPNI that are set out in PURA  sec.3.501 should apply to all 
carriers and not just DCTUs. Consumers Union stated that the section specifies 
that the protections apply to customers of telecommunications utilities, and 
that interexchange carriers and holders of COAs and SPCOAs are 
telecommunications utilities under sec.3.002(9) of PURA. TSTCI believes that the 
intent of the Legislature was to include all carriers. They bolster their 
argument by reiterating that the term telecommunications utilities was used in 
the Act, and state further that throughout PURA if certain rules/regulations 
were to pertain ONLY to the CCN holder, the word incumbent was inserted prior to 
local exchange carrier and that sec.3.501 does not use the term incumbent. 
 The Commission acknowledges that PURA uses the term telecommunications 
utilities in sec.3.501, therefore DCTU has been replaced with telecommunications 
utility(ies) in subsections (a)(2) and (3), (e) and (f). The Commission 
emphasizes, however, that it did not notice this rulemaking to consider the 
provisions of sec.3.501 generally as this section of PURA is set for rulemaking 
in a separate project. Project Number 14507 will address the CPNI issues set out 
in the new PURA, with a proposed rule currently scheduled for consideration at 
an open meeting of the Commission in early 1996. 
 All the parties supported the addition of subsection (g)(4) to implement the 
blocking notification requirement inasmuch as the language in the rule tracked 
the language in PURA. OPC suggested that providers of Caller ID service include 
in their notice an 800 number for customers to call to verify that their per-
line blocking is working. OPC also requested that the rule be modified to 
include OPC in the list of entities to be informed if blocking options fail to 
protect a customer's privacy. FBTC commented that the language of subsection 
(g)(4) conforms with the PURA, but stated that there are limitations to their 
abilities to determine if a failure to block the delivery of calling party 
information has occurred and therefore, a provider may not be in a position to 
become aware of every single instance of a failure to block. AT&T Wireless 
stated that cellular carriers cannot always determine whether or not a customers 
blocking request has been honored because if a customer is roaming, another 
carrier may terminate the call and that once the call has been handed off to 
another carrier, technically, there is no way to know if a block has been 
completed successfully. 
 The Commission agrees with OPC that it would be helpful to the customer if an 
800 number for customer verification of per-line blocking activation were 
included in the provider's notice on blocking required by subsection (g)(4), 
however PURA sec.3.302(e) restricts the Commission's actions in prescribing 
requirements pertaining to Caller ID blocking. Therefore, the notification 
requirement added by subsection (g)(4) of this subsection is confined to the 
addition of language required by PURA sec.3.3025(a). However, the Commission 
encourages all providers of Caller ID service to ensure that their customers 
have the necessary information to make informed decisions regarding the use of 
the service, including the blocking options. 
 Regarding the request that the rule be modified to include OPC in the list of 
entities to be informed if blocking options fail to protect a customer's 
privacy; again, the Commission is restricted from prescribing additional 
requirements regarding Caller ID blocking, therefore the language in the 
amendment regarding the notification process tracks the language of the statute. 
 The Commission does not find the concerns of FBTC and AT&T Wireless regarding 
blocking failures to merit a modification in the language of the rule. The 
statute and the rule require a telecommunications provider providing Caller ID 
service to a customer originating a call to report failures to block when a 
provider becomes aware of a failure to block. The Commission does not find this 
language to be unduly restrictive as the language requires the provider to 
report only those failures that it becomes aware of, not that it be aware of 
every failure. 
 SBMS confined its comments to an objection to the use of the term 
telecommunications provider in numerous sections of the rule, stating that use 
of such term inappropriately creates an appearance of additional regulatory 
control over commercial mobile radio services providers, such as SBMS, by the 
Commission SBMS cites PURA sec.3.002(9) which states that [e]xcept as provided 
by sec.3.006 and sec.3.608, nothing in this Act shall be construed to apply to 
companies whose only form of business is... commercial mobile service 
providers... and points out that  sec.3.006 and sec.3.608 relate to 
infrastructure and universal funding issues. SBMS also argued that the 
Commission's proposed amendment was made pursuant to sec.1.101, which gives the 
Commission authority to make and enforce rules reasonably required in the 
exercise of its power and jurisdiction, but that the Commission was attempting 
to broaden its jurisdiction through use of the term telecommunications provider 
and, thereby granted itself new powers over commercial mobile service providers. 
SBMS stated that [b]y using that phrase, without providing an exception for 
commercial mobile service providers, the Commission has subjected SBMS to 
various regulatory measures, such as customer notification requirements and the 
submission of Caller ID materials, which go beyond the requirements of PURA. 
SBMS went on to state that the only section of PURA that intimates any form of 
regulatory authority by the Commission over commercial mobile service providers 
is sec.3.302(i), which states that a commercial mobile service provider may 
offer caller identification services under the same terms and conditions 
provided by Subsections (c)-(f) of this section. SBMS contended that the scope 
of these provisions limits the Commission's authority over commercial mobile 
service providers and does not extend it to those matters addressed by PURA  
sec.3.3025 as implemented by the proposed amendment to sec.23. 57. SBMS 
suggested the Commission refrain from using the term telecommunications provider 
in the rule. 
 PURA sec.3.3025(a) states that [w]hen a telecommunications provider providing 
Caller ID service . . . becomes aware of a failure to block . . . it shall 
report such failure to the panel, the commission, and the affected customer if 
that customer did not report the failure. Subsection (c) of the same section 
states that [a]ll. providers offering Caller ID services shall file with the 
Caller ID Consumer Education Panel, . . . all existing Caller ID materials . . . 
and that . . . [a]ll future materials shall be provided when they become 
available. Since the term telecommunications provider tracks the language of 
sec.3.3025(a) of the statute, the Commission finds it to be the appropriate term 
to utilize in the amendment implementing that provision of the statute. The 
Commission also finds the term to be appropriate to utilize in implementing the 
provisions of sec.3.3025(c) relating to the Caller ID Consumer Education Panel 
filings since the phrase all providers of Caller ID services does not appear to 
be ambiguous in its meaning. Use of the term telecommunications provider in 
place of all providers does not in any way increase or expand the universe of 
providers required to comply with  sec.3. 3025(c) of the Act. 
 The Commission disagrees with SBMS that the rule attempts to create new 
authority through use of specific terms. SBMS cited sec.3.002(9) language to 
limit the Commission's authority to apply the provisions of sec.3.3025 to 
commercial mobile service providers, but sec.3.002(9) is not germane to this 
issue. Section 3.002(9) is PURA's definition of public utility or utility, and 
clearly does place restrictions on the application of that term to commercial 
mobile service providers; however, the PURA definition that is applicable to the 
disputed language of the rule is  sec.3.3002(11), which is the definition for 
telecommunications provider and which does specifically include commercial 
mobile service providers. It is this term, and not public utility or utility, 
that the Commission uses as reference for implementing the provisions of sec.3. 
3025. Obviously, it is not the rule but the statute itself that governs the 
application of sec.3.3025 and because the term telecommunications provider 
specifically was utilized by the legislature to inform the provisions of  sec.3. 
3025, the Commission finds that the requirements do, in fact, apply to 
commercial mobile service providers. 
 SBMS cited sec.3.302(i) of the Act, which states that a commercial mobile 
service provider may offer caller identification services under the same terms 
and conditions provided by Subsections (c)-(f) of this section, as the only 
possible exception to the restrictive language in sec.3.002(9), although still 
they are noncommittal as to the Commission's jurisdiction even given such 
explicit statutory language: . . . even assuming that the obvious regulatory 
immunity given SBMS under sec.3.002(9) is somehow negated, the only section of 
PURA that intimates any form of regulatory authority by the Commission over 
commercial mobile service providers is sec.3.302(i). They commented further that 
the scope of these provisions, if they were to override the express language of 
sec.3.002(9), is quite limited and narrow. 
 Section 3.302(i) does refer explicitly to commercial mobile service providers. 
The specific reference is necessary because subsection (a) states broadly that 
the section applies to the provision of caller identification services; and 
subsection (b) requires that any person offering caller identification services 
to obtain written authorization from the Commission. Since the definition of 
person in sec.1.003(12) of the Act would encompass commercial mobile service 
providers, and since only subsections (c)-(f) and not the entire section would 
apply to such providers, an explicit reference was necessary to clarify the 
exemption. The Commission believes that were commercial mobile service providers 
intended to be excluded from the requirements of sec.3.3025, there would have 
been similar exclusionary language in that section as well. 
 Eight parties commented on proposed new subsection (h) which states that a DCTU 
may not use calling party information to allow a called party to contact a 
calling party, when that calling party had indicated a desire for privacy in the 
initial call by blocking the delivery of his or her information through use of a 
blocking option. OPC, Consumers Union, the Center, and the Texas Council on 
Family Violence all commented in favor of the proposed subsection. GTE, TTA, 
TSTCI, and SWB opposed the proposed addition to the Commission's Privacy Rule. 
 GTE stated that the rule change is not consistent with PURA sec.3.302(e), which 
restricts the commission in prescribing requirements in relation to Caller ID 
blocking to Subsections (b) and (c) of that section of the Act. 
 The Commission maintains that proposed subsection (h) of the rule does not 
prescribe any additional requirements relating to Caller ID blocking. Subsection 
(h) relates to any other service offered by a DCTU which utilizes calling party 
information, which is not information used exclusively by and for Caller ID 
services, to contact a calling party. The Commission did not include this 
provision in subsection (g) of the Privacy Rule, which addresses Caller ID 
services, because the issue is only tangentially related to Caller ID through 
reference to a customer's privacy request as indicated by the blocking status of 
the line. The Commission's policy on privacy is well-established and made clear 
by the statement in subsection (b) of the rule: [c]ustomers of dominant 
certificated telecommunications utility service should be permitted to control 
the outflow of information about themselves. As pointed out by supporters of the 
proposed subsection (and discussed in more detail below), if a DCTU were to 
utilize calling party information to allow a called party to contact a calling 
party when that call had intentionally been blocked by the caller, the 
consequences for the calling party could be dire. The Commission, therefore, 
finds that the inclusion of subsection (h) is consistent with Commission policy 
and does not violate the terms of the statute with respect to Caller ID service 
blocking restrictions. 
 GTE further stated that subsection (g)(3)(B) of the rule, which requires 
telecommunications providers that provide caller ID service to provide all 
customers with a free per-line blocking option, is also inconsistent with PURA 
sec.3.302. While not stating a reason for the perceived inconsistency, the 
Commission opines that GTE is interpreting a free per-line blocking option to 
mean that all customers should be provided with free per-line blocking which is 
not what the statute requires. 
 Section 23.57(g)(3)(B) does not require providers of Caller ID service to 
provide all customers with free per-line blocking, but rather with the option of 
obtaining such blocking as is required by sec.3.302(d) of PURA. Therefore, the 
Commission finds it unnecessary to change the language of (g)(3)(B). 
 TTA commented that while the focus of the amendment is well-intentioned, it is 
based upon a misunderstanding of how the network functions, and would 
unreasonably restrict the party's ability to communicate. TTA pointed out that 
while the blocking status is established on an access line, that the block is 
actually done at the switch and the information is not passed to a called party. 
TTA noted that Call Return, one type of service that allows a called party to 
contact a calling party, utilizes a switch-based feature to return the call and 
thus no calling party information is released to the called party. TTA and TSTCI 
both asserted that because no calling party information is released, no 
customer's privacy has been violated. 
 The Commission is aware of how the technology functions with respect to Caller 
ID blocking and Call Return services, which is why subsection (h) was worded to 
restrict the utility's usage of calling party information, and not the 
customer's usage of such information. Again, it is the Commission's policy to 
allow customers to control the outflow of information about themselves. The 
Commission believes that any information about a customer should be revealed 
only with the customer's full knowledge and consent. Such information includes 
the identification of a person or his or her whereabouts inadvertently provided 
through the use of telecommunications technologies. This concern is the reason 
why both PURA and the Commission require blocking options to be available to all 
customers in a Caller ID environment. It is this same rationale that applies to 
a Call Return type service where a caller has indicated a need for privacy by 
blocking a call: this caller has taken steps to block delivery of his or her 
telephone number and/or name, therefore she did not wish to have his or her 
identity or location revealed to the called party. With Call Return, the called 
party can return a call and the original caller could be identified by the way 
the telephone is answered or by voice recognition, thereby potentially even 
pinpointing the original caller's location--all without the caller actually 
having possession of calling party information. This is the concern of the 
supporters of subsection (h), particularly with respect to situations involving 
domestic violence and calls placed from shelters, or a safe house of some sort. 
Call Return features could allow an abuser to return a blocked call and identify 
a person or place by voice recognition or by questioning the person answering 
the phone with regard to the services they provide. The Commission believes that 
if another technology is able to circumvent the caller's implied statement of a 
desire for privacy by returning a call that was originally blocked, and 
potentially identifying the caller, then the objectives of having a Caller ID 
blocking mechanism are overridden and negated. 
 TSTCI expressed concern that there would be a negative effect on current Call 
Return customers if utilities were required to comply with subsection (h) of the 
rule. TSTCI stated that the feature has been subscribed to by many customers who 
have certain expectations in the functions of the feature. 
 Again, the Commission's policy on customer privacy references the privacy 
rights of all customers. The Commission believes that a customer's privacy 
rights should guide the deployment of technology; technology should not result 
in a devolution of those rights through a re-interpretation of what we consider 
to be private information. It is not until new technologies emerge and customers 
begin experimenting with those technologies, that we learn about the various 
social costs and benefits involved. The potential dangers involved in a call 
returned to a blocked caller is one such lesson learned. Therefore, the 
Commission finds that subsection (h) is necessary to fully implement the spirit 
of the privacy rule. 
 TSTCI and others commented that the cost to upgrade switches would be 
substantial and that they are not confident that the blocking of the Call Return 
feature from placing a call to a blocked line would be possible. 
 While SWB stated that costs to implement the requirement envisioned by the 
proposed rule would be approximately $5 million, yet there was no explanation as 
to exactly what that dollar amount was attributable to. No other party provided 
information to substantiate claims that a switch upgrade to accommodate the 
requirements of subsection (h) would be unreasonable, nor did any party state 
definitively that such an upgrade would be impossible. Since no information was 
received on these points, the Commission takes no action based on these 
comments. 
 SWB stated that the proposed amendment to subsection (h) is both unjustified 
and premature, noting initially that the Commission's proposal states no 
rationale for advancing it in the first instance other than the brief reference 
to the FCC's May 5 Order. SWB commented that a me too rationale is a poor basis 
for agency decisionmaking. SWB found the FCC's Order on Call Return blocking to 
be without merit, stating that no information is revealed and that any potential 
danger from voice recognition would only apply if the person activating Call 
Return knows and is able to recognize the voice of the person answering the 
returned call. 
 For the reasons already stated regarding cases of domestic violence and the 
Commission's overarching policy regarding customer privacy, the Commission 
believes that the addition of subsection (h) is justified and an important 
addition to the Privacy Rule. However, the Commission does take into 
consideration the FCC's subsequent Order in CC Docket Number 91-281, released on 
October 30, 1995, which stays the effectiveness of the Call Return blocking 
provision of their rulemaking to January 1, 1997. While none of the comments in 
the rulemaking on sec.23.57 provided the Commission with enough information to 
make a clear determination as to any inherent technical difficulties in enacting 
the subsection effecting Call Return services; the Commission believes that 
extending the implementation deadline by thirteen months to coincide with the 
FCC's new deadline will render moot any potential problems and/or expense 
arising solely from inconsistent interstate and intrastate effective dates. 
Therefore, the commission amends subsection (h) to reflect an implementation 
deadline of January 1, 1997. 
 SWB also contended that restricting the Call Return feature on calls from a 
blocked lines could pose a threat in the instance of an attempted call for help 
to an emergency service provider that does not have ANI capability. In those 
instances, an emergency service provider could not return the call should the 
initial call be cut off prematurely for some reason. 
 The concerns raised by SWB regarding calls to emergency service providers are 
the same concerns that were raised in objections to any form of Caller ID 
blocking when Caller ID services came on the scene. To wit: If customers have 
blocked lines, their information will not be received by an emergency service 
provider that does not have ANI capability, but relies on the Caller ID service 
for such information. The Commission maintains that the customer has the right 
to determine what services, including what blocking options should be available 
to them. Further, the Commission believes that it is incumbent upon the 
telecommunications utility to provide the appropriate information to its 
customers regarding the technologies and services that it offers in order for 
the customer to make an informed choice. 
 The amendment is adopted under PURA sec.1.101, which provides the commission 
with the authority to make and enforce rules reasonably required in the exercise 
of its powers and jurisdiction; and specifically, sec.3.3025, which creates the 
Caller ID Consumer Education Panel and requires providers of Caller ID service 
to notify customers in the event of a failure to block a call, and Texas Revised 
Civil Statutes Annotated, Article 6252-33 (Vernon Supp. 1995), which requires a 
state agency that is advised by a state agency advisory committee to set out in 
a rule certain requirements for the committee. 
 Cross Index to Statutes: PURA sec.sec.1.101, 3.002, 3.051, 3.302, 3.025, and 
Texas Revised Civil Statutes Annotated, Article 6252-33 (Vernon Supp. 1995). 
 
 
  sec.23.57. Telecommunications Privacy. 
 
  (a) Definitions. The following words and terms, when used in this section, 
shall have the following meanings, unless the context clearly indicates 
otherwise. 
 
  (1)  Automatic Number Identification (ANI)-The automatic transmission by the 
local switching system of the originating billing telephone number to an 
interexchange carrier or other communications carrier in the normal course of 
telephone operations. 
   
  (2) Aggregate CPNI-A configuration of CPNI that has been collected by a 
telecommunications utility and organized such that none of the information will 
identify an individual customer. 
   
  (3)  Customer Proprietary Network Information (CPNI), Customer-specific-Any 
information compiled on a customer by a telecommunications utility in the normal 
course of providing telephone service that identifies any individual customer by 
matching such information with the customer's name, address, or calling or 
originating billing telephone number. This information includes, but is not 
limited to, line type(s), technical characteristics (e.g., rotary service), 
class of service, current telephone charges, long distance billing record, local 
service billing record, directory assistance charges, usage data, and calling 
patterns. 
   
  (4) Privacy Issue-An issue that arises when a telecommunications provider 
proposes to offer a new telecommunications service or feature that would result 
in a change in the outflow of information about a customer. The term privacy 
issue is to be construed broadly. It includes, but is not limited to, changes in 
the following: 
 
  (A) the type of information about a customer that is released; 
   
  (B) the customers about whom information is released; 
   
  (C) the entity or entities to whom the information about a customer is 
released; 
   
  (D)  the technology used to convey the information; 
   
  (E) the time at which the information is conveyed; and 
   
  (F) any other change in the collection, use, storage, or release of 
information. 
     
  (5) Supplemental Services telecommunications features or services offered by a 
dominant certificated telecommunications utility for which analogous services or 
product may be available to the customer from a source other than a dominant 
certificated telecommunications utility. Supplemental services shall not be 
construed to include optional extended area calling plans that a dominant 
certificated telecommunications utility may offer pursuant to sec.23.49 of this 
title (relating to Telephone Extended Area Service), or pursuant to a final 
order of the commission in a proceeding pursuant to sec.sec.3.210, 3.211, or 3. 
213 of the Public Utility Regulatory Act of 1995. 
     
  (b) Privacy Considerations. Customers of dominant certificated 
telecommunications utility service should be permitted to control the outflow of 
information about themselves. Any dominant certificated telecommunications 
utility proposing to offer a new service or a new feature to an existing service 
under the provisions of sec.23.24 of this title (relating to Form and Filing of 
Tariffs), sec.23.26 of this title (relating to New and Experimental Services), 
sec.23.27 of this title (relating to Rate-Setting Flexibility for Services 
Subject to Significant Competitive Challenges), or sec.23.28 of this title 
(relating to Promotional Rates for Dominant Certificated Telecommunications 
Utility Services) for which the commission finds a lost degree of privacy, and 
for which the dominant certificated telecommunications utility has not shown 
good cause pursuant to subsection (c)(2)(B)(ii) and (c)(2)(D) of this section, 
must, in a manner ordered by the commission: 
 
  (1) provide a means of restoring the lost degree of privacy at no charge to 
the public; and 
   
  (2)  educate the public as to the means by which the lost degree of privacy 
can be restored. 
     
  (c) New Services or Features. For all dominant certificated telecommunications 
utility applications filed pursuant to  sec.23. 24 of this title, sec.23.26 of 
this title, sec.23.27 of this title, or sec.23.28 of this title, the dominant 
certificated telecommunications utility must identify all privacy issues, as 
that term is defined in subsection (a)(4) of this section, that result from the 
implementation of the new service or feature, and all privacy issues that result 
in a lost degree of privacy. 
 
  (1) Identification of privacy issues. The dominant certificated 
telecommunications utility shall identify all privacy issues that result from 
the implementation of the new service or feature. Identification of privacy 
issues shall include, but not be limited to: 
 
  (A) identification and description of the type of information that is released 
as a result of the new service or feature; 
   
  (B) identification of the category of customers about whom information will be 
released; 
   
  (C) identification of the category of entities to whom information about a 
customer will be released; 
   
  (D) identification and description of the change in the technology used to 
convey the information; 
   
  (E) identification and description of the change in the time at which the 
information is conveyed; and 
   
  (F)  identification and description of any other change in the collection, 
use, storage, or release of information. 
     
  (2) Lost degree of privacy. For each privacy issue identified pursuant to 
paragraph (1) of this subsection, the dominant certificated telecommunications 
utility shall identify all circumstances under which a customer of the dominant 
certificated telecommunications utility may experience a lost degree of privacy 
as a result of the implementation of the new service or feature proposed in the 
application, including, but not limited to, whether a customer's name, address, 
or telephone number will be provided to a called party or to any other third 
party, and for each such circumstance identified: 
 
  (A) state whether the lost degree of privacy can be restored by the affected 
customers and how such customers can restore it; 
   
  (B) state whether the dominant certificated telecommunications utility will 
charge the affected customers for restoring the lost degree of privacy and, if 
applicable: 
 
  (i) what such charge will be; and 
   
  (ii) show good cause for such charge; 
     
  (C) state how the dominant certificated telecommunications utility will 
educate the affected customers as to the implications for privacy and, if 
applicable, the means by which such customers can restore the lost degree of 
privacy; and 
   
  (D) show good cause, if applicable, for not offering the affected customers a 
means by which the lost degree of privacy can be restored. 
     
  (3) Staff Review. Staff shall review all applications submitted by a dominant 
carrier under the provisions of sec.23.24 of this title, sec.23.26 of this 
title, sec.23.27 of this title, or sec.23.28 of this title for privacy issues 
and privacy issues resulting in a lost degree of privacy. 
     
  (d)  Notice of Number Delivery Over 800 and 900 Services. The dominant 
certificated telecommunications utilities shall print in the white pages of 
their telephone directories, and send as a billing insert annually to all of 
their customers, the statement: "When an 800 or 900 number is dialed from your 
telephone, your telephone number may be transmitted to the company you have 
called and may be available to that company's service representative before your 
call is answered." The statement must appear in all telephone directories 
published for the dominant certificated telecommunications utility subsequent to 
the effective date of this section. The statement must appear as a billing 
insert for each dominant certificated telecommunications utility within 60 days 
of the effective date of this section and annually thereafter. 
   
  (e)  Customer Proprietary Network Information (Customer-specific). Except as 
provided in paragraph (3) of this subsection, telecommunications utility 
personnel may not use customer-specific CPNI to market supplemental services to 
a residential customer if restriction is requested by such residential customer. 
 
  (1) Annually, each telecommunications utility shall notify each residential 
customer of his or her customer-specific CPNI rights. 
 
  (A) Distribution and timing of distribution of the notification. 
 
  (i) Each telecommunications utility shall print such notification in the white 
pages of its telephone directories. 
   
  (ii) Each telecommunications utility shall send such notification as a billing 
insert to each of its residential customers annually. 
     
  (B) Contents of the notification. 
 
  (i) The notification shall provide the customer with an explanation of 
customer-specific CPNI. 
   
  (ii) The notification shall describe the customer's right to restrict the 
telecommunications utility's use of his or her customer-specific CPNI. 
   
  (iii) The notification shall state with specificity the manner in which the 
customer may restrict the telecommunications utility's use of his or her 
customer-specific CPNI. 
   
  (iv) The notification shall explain that restricting the telecommunications 
utility's use of customer-specific CPNI may not eliminate all marketing contacts 
from the telecommunications utility. 
   
  (v) The notification shall state that there will be no charge to the customer 
for electing to restrict the use of his or her customer-specific CPNI. 
   
  (vi) The notification must state the limited circumstances described in 
paragraph (3) of this subsection, under which the telecommunications utility 
personnel may use customer-specific CPNI to market supplemental services even if 
the customer requests restriction of the use of the customer-specific CPNI. 
     
  (C) Staff review of the notification. The notification shall be reviewed by 
the staff of the Regulatory Division before it is distributed. The staff of the 
Regulatory Division shall notify the telecommunications utility within ten days 
of submission whether the proposed notification may be distributed or must be 
modified and distributed. 
     
  (2) The telecommunications utility may not charge the customer for electing to 
restrict the use of his or her customer-specific CPNI. 
   
  (3) Even if a residential customer requests restriction of the use of his or 
her customer-specific CPNI, telecommunications utility personnel may use 
customer-specific CPNI to market supplemental services to that customer if such 
customer contacts the telecommunications utility to inquire about supplemental 
services offered by the telecommunications utility. 
     
  (f) Aggregate CPNI. If a telecommunications utility compiles and uses 
aggregate CPNI for marketing purposes or provides aggregate CPNI to any business 
associated with the telecommunications utility for marketing purposes, it must 
also provide aggregate CPNI to any third party upon request. A 
telecommunications utility must offer to provide aggregate CPNI under the same 
terms and conditions and at the same price as it is made available to all 
businesses affiliated with the telecommunications utility and to 
telecommunications utility personnel marketing supplemental services, provided 
that the third party must specify the type and scope of the aggregate CPNI 
requested. A telecommunications utility must, upon request, provide such 
aggregate CPNI to a third party under any other alternative terms, conditions, 
or prices that are just and reasonable under the circumstances and that are not 
unreasonably preferential, prejudicial or discriminatory. 
   
  (g) Caller Identification Services. 
 
  (1) Application. This subsection shall not be construed to apply to: 
 
  (A) an identification service that is used within the same limited system, 
including a central office based PBX-type system; 
   
  (B)  information that is used on a public agency's emergency telephone line or 
on a line that receives the primary emergency telephone number (9-1-1): 
   
  (C) information passed between telecommunications utilities, enhanced service 
providers, or other entities that is necessary for the set-up, processing, 
transmission, or billing of telecommunications or related services; 
   
  (D) information provided in compliance with applicable law or legal process; 
or 
   
  (E) an identification service provided in connection with a 700, 800, or 900 
access code telecommunications service. 
     
  (2)  Definitions. The following words and terms, when used in this subsection, 
shall have the following meanings, unless the context clearly indicates 
otherwise. 
 
  (A) Caller Identification Materials (Caller ID Materials) -Any advertisements, 
educational materials, training materials, audio and video marketing devices, 
and any information disseminated about Caller ID services. 
   
  (B) Caller Identification Service (Caller ID Service) -A service offered by a 
telecommunications provider that provides calling party information to a device 
capable of displaying the information. 
   
  (C)  Calling party information- 
 
  (i) the telephone listing number and/or name of the customer from whose 
telephone instrument a telephone number is dialed; or 
   
  (ii) other information that may be used to identify the specific originating 
number or originating location of a wire or electronic communication transmitted 
by a telephone instrument. 
     
  (D)  Per-call blocking-A telecommunications service provided by a 
telecommunications provider that prevents the transmission of calling party 
information to a called party on a call-by-call basis. 
   
  (E) Per-line blocking-A telecommunications service provided by a 
telecommunications provider that prevents the transmission of calling party 
information to a called party on every call, unless the calling party acts 
affirmatively to release calling party information. 
     
  (3) Per-call and per-line blocking options. Unless otherwise ordered by the 
commission pursuant to the provisions of subsections (b) and (c) of this 
section, telecommunications providers that provide caller ID service must: 
 
  (A) provide all customers with a free per-call blocking option; and 
   
  (B) provide all customers with a free per-line blocking option. 
     
  (4) Customer Notification. When a customer requests per-line blocking through 
the commission, the telecommunications provider shall notify the customer by 
mail of the effective date that per-line blocking will be instituted. When a 
telecommunications provider providing Caller ID service to a customer 
originating a call becomes aware of a failure to block the delivery of calling 
party information from a line equipped with per-line blocking or per-call 
blocking (and the caller had attempted to block the call), it shall report such 
failure to the Caller ID Consumer Education Panel, the commission, and the 
affected customer if that customer did not report the failure. The provider 
shall report such failure to the Commission by contacting the Commission liaison 
to the Panel. A reasonable effort shall be made to notify the affected customer 
within 24 hours after the provider becomes aware of such failure. 
   
  (5) Caller ID Consumer Education Panel. The Caller ID Consumer Education Panel 
shall consist of one person appointed by the Governor, one person appointed by 
the chair of the commission, after consultation with the Texas Council on Family 
Violence, and one person appointed by the Public Counsel of the Office of Public 
Utility Counsel. A commission staff member shall serve as liaison between the 
panel and the commission. 
 
  (A) Role of the Caller ID Consumer Education Panel. The Panel shall meet at 
least quarterly to: 
 
  (i) review the level of effort and effectiveness of consumer education 
materials; 
   
  (ii) investigate whether educational materials are distributed in as effective 
a manner as marketing materials; and 
   
  (iii) develop recommendations for the commission related to the safe use of 
Caller ID services, promotion and preservation of privacy for both the called 
and calling customers, and decreasing the likelihood of harm resulting from 
Caller ID services. 
     
  (B)  Reporting. The panel shall file an annual report with the commission 
detailing its findings pursuant to subparagraph (A)(i) and (ii) of this 
paragraph, and its recommendations for increasing the safe use and privacy of 
the calling customer and decreasing the likelihood of harm resulting from Caller 
ID services. The commission may implement the recommendations of the panel, as 
well as those of any interested party, to the extent consistent with the public 
interest. 
   
  (C) Evaluation of the Panel. The commission shall evaluate the panel annually. 
The evaluation shall be conducted by an evaluation team appointed by the 
executive director of the commission. The commission liaison, members of the 
panel, and any other commission employee who works either directly or indirectly 
with the panel shall not be eligible to serve on the evaluation team. The 
evaluation team will report to the commission in open meeting each August of its 
findings regarding: 
 
  (i)  the panel's work; 
   
  (ii) the panel's usefulness; and 
   
  (iii) if the panel is reimbursed for its costs by the state, the costs related 
to the panel's existence, including the cost of agency staff time spent in 
support of the panel's activities. 
     
  (D) Duration of the Panel. The panel shall disband on September 1, 1999, 
unless reauthorized by statute. 
   
  (E) Filing of Caller ID Materials. All telecommunications providers offering 
Caller ID services shall provide all existing Caller ID materials used as well 
as all future materials (when they become available) as set out in clauses (i) 
and (ii) of this subparagraph. 
 
  (i) One copy of all such material shall be mailed to each member of the Panel. 
   
  (ii) Two copies of all such material shall be filed in Central Records under 
Project Number 14505. 
         
  (h) Usage of calling party information in other services. Effective January 1, 
1997, a dominant certificated telecommunications utility may not use calling 
party information to allow the called party to contact the calling party, when 
that calling party had indicated a desire for privacy in the initial call by 
blocking the delivery of his or her calling party information through the use of 
either a per-call or per-line blocking option, as those terms are defined in 
subsection (g)(2)(D) and (E) of this section. 
 
  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 25, 1996. 
 TRD-9601108 
  Paula Mueller 
 Secretary of the Commission 
 Public Utility Commission of Texas 
    Effective date: February 15, 1996 
 Proposal publication date: September 15, 1995 
 For further information, please call: (512) 458-0100 
         
                   
  TITLE 19. EDUCATION 
 Part II. Texas Education Agency 
  Chapter 61. School Districts 
  
  Subchapter A. Board of Trustees Relationship 
 
  19 TAC sec.61.1 
 
  The Texas Education Agency (TEA) adopts new sec.61.1, concerning continuing 
education for school board members, with changes to the proposed text as 
published in the November 21, 1995, issue of the Texas Register (20 TexReg 
9628). The new section establishes definitions, requirements, and procedures 
related to: the school district orientation session; a basic orientation to the 
Texas Education Code; an annual team-building session with the school district 
board of trustees and superintendent; and specified hours of continuing 
education based on identified needs. 
 The section also provides that the State Board of Education (SBOE) shall adopt 
a framework for governance leadership to be used in structuring continuing 
education for school board members. The new section is adopted as part of the 
sunset review process mandated by Senate Bill 1, 74th Texas Legislature, 1995. 
The repeal of current sec.61.61 (relating to Training for School Board Members) 
is adopted in a separate submission. 
 Under Senate Bill 1, a rule adopted by SBOE normally does not take effect until 
the beginning of the school year that begins at least 90 days after the date the 
rule is adopted. However, the Bill provides that an SBOE rule may take effect 
earlier under certain circumstances. The SBOE, by an affirmative vote of at 
least two-thirds of the board members, adopts an earlier effective date of March 
1, 1996. The earlier date is necessary to ensure that school board members have 
training in accordance with state statute in a timely manner. 
 The change to sec.61.1(j) clarifies requirements concerning public announcement 
of school board member participation in continuing education. 
 New sec.61.1(k) allows SBOE to recognize school board-superintendent teams for 
completing at least eight hours of continuing education. 
 The following comments were received regarding adoption of the new section. 
 Comment. The Texas Association of School Boards (TASB) commented in support of 
the section. 
 Comment. The Texas Association of School Administrators (TASA) and TASB 
recommended amended language regarding public announcement of school board 
member participation in continuing education and public recognition of school 
board-superintendent teams. 
 Agency Response. Texas Education Agency staff worked with TASA and TASB to 
modify the language and agreed to make the changes. 
 Comment. The TASA expressed concern that the term "deficient," as used to 
describe school board member participation in continuing education, may be too 
strong, while Dallas ISD commented in support of the term. 
 Agency Response. State Board of Education members felt the term was appropriate 
and agreed to retain the language. 
 The new section is adopted under the Texas Education Code, sec.11.159, which 
directs SBOE to provide a training course for independent school board trustees 
to be offered by the regional education service centers. 
 
 
  sec.61.1. Continuing Education for School Board Members. 
 
  (a) Under the Texas Education Code, sec.11.159, the State Board of Education 
(SBOE) shall adopt a framework for governance leadership to be used in 
structuring continuing education for school board members. Copies of the 
framework shall be sent annually to the president of each board of trustees to 
be distributed to all current board members and the superintendent. 
   
  (b) The continuing education required under the Texas Education Code, 
sec.11.159, applies to each member of an independent school district board of 
trustees. The continuing education requirement consists of orientation sessions, 
an annual team building session with the local board and the superintendent, and 
specified hours of continuing education based on identified needs. The 
superintendent's participation in team building sessions as part of the 
continuing education for board members shall represent one component of the 
superintendent's ongoing professional development. 
 
  (1) Each school board member of an independent school district shall receive a 
local district orientation and an orientation to the Texas Education Code. 
 
  (A) Each new board member shall participate in a local district orientation 
session within 60 days before or after the board member's election or 
appointment. The purpose of the local orientation is to familiarize new board 
members with local board policies and procedures and district goals and 
priorities. 
   
  (B) Before January 1, 1997, each sitting board member shall receive a basic 
orientation to the Texas Education Code and relevant legal obligations. The 
orientation shall have special but not exclusive emphasis on statutory 
provisions related to governing Texas school districts. The orientation shall be 
delivered by regional education service centers (ESCs) and shall be three hours 
in length. 
   
  (C) Following January 1, 1997, each newly elected board member of an 
independent school district shall receive the orientation to the Texas Education 
Code within the first year of service. The orientation shall be delivered by 
ESCs and shall be three hours in length. 
   
  (D) After each session of the Texas Legislature, including each regular 
session and called session related to education, each school board member shall 
receive an update to the basic orientation provided by the ESC. The update 
session shall be of sufficient length to familiarize board members with major 
changes in the code and other relevant legal developments related to school 
governance. A board member who has attended an ESC basic orientation session 
that incorporates the most recent legislative changes is not required to attend 
an update. 
     
  (2) The entire board, including all board members, shall annually participate 
with their superintendent in a team building session facilitated by the ESC or 
another registered provider. The team building session shall be of a length 
deemed appropriate by the board, but generally at least three hours. The purpose 
of the team building session is to enhance the effectiveness of the board-
superintendent team and to assess the continuing education needs of the board-
superintendent team. The assessment of needs shall be based on the framework for 
governance leadership and shall be used to plan continuing education activities 
for the year for the governance leadership team. 
   
  (3) In addition to the continuing education requirements in paragraph (1) and 
paragraph (2) of this subsection, each board member shall receive additional 
continuing education on an annual basis in fulfillment of assessed needs and 
based on the framework for governance leadership. The continuing education 
sessions may be provided by ESCs or other registered providers. 
 
  (A) In a board member's first year of service, he or she shall receive at 
least ten hours of continuing education in fulfillment of assessed needs. 
   
  (B) Following a board member's first year of service, he or she shall receive 
at least five hours of continuing education annually in fulfillment of assessed 
needs. 
   
  (C) A board president shall receive continuing education related to leadership 
duties of a board president as some portion of the annual requirement. 
       
  (c) No continuing education shall take place during a school board meeting 
unless that meeting is called expressly for the delivery of board member 
continuing education. However, continuing education may take place prior to or 
after a legally called board meeting in accordance with the provisions of the 
Government Code, sec.551.001(4). 
   
  (d) An ESC board member continuing education program shall be open to any 
interested person, including a current or prospective board member. 
   
  (e) A registration fee shall be determined by ESCs to cover the costs of 
providing continuing education programs offered by ESCs. 
   
  (f) A private or professional organization, school district, government 
agency, college/university, or private consultant shall register with the Texas 
Education Agency (TEA) to provide the board member continuing education required 
in subsection (b)(2) and subsection (b)(3) of this section. 
 
  (1) The registration process shall include documentation of the provider's 
training and/or expertise in the activities and areas covered in the framework 
for governance leadership. 
   
  (2) An updated registration shall be required of a provider of continuing 
education every three years. 
   
  (3) A school district that provides continuing education exclusively for its 
own board members is not required to register. 
     
  (g) The provider of continuing education shall provide verification of 
completion of board member continuing education to the individual participant 
and to the participant's school district. The verification must include the 
provider's registration number. 
   
  (h) At least 50% of the continuing education required in subsection (b) (3) of 
this section shall be designed and delivered by persons not employed or 
affiliated with the board member's local school district. No more than one hour 
of the required continuing education that is delivered by the local district may 
utilize self-instructional materials. 
   
  (i) To the extent possible, the entire board shall participate in continuing 
education programs together. 
   
  (j) Annually, at the meeting at which the call for election of board members 
is normally scheduled, the current president of each local board of trustees 
shall announce the name of each board member who has completed the required 
continuing education, who has exceeded the required hours of continuing 
education, and who is deficient in the required continuing education. The 
president shall cause the minutes of the local board to reflect the information 
and shall make this information available to the local media. 
   
  (k) Annually, SBOE shall commend those local board-superintendent teams that 
receive at least eight hours of the continuing education specified in subsection 
(b)(2) and subsection (b)(3) of this section as an entire board-superintendent 
team. 
 
  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 25, 1996. 
 TRD-9601072 
  Criss Cloudt 
 Associate Commissioner, Policy Planning and Research 
 Texas Education Agency 
    Effective date: March 1, 1996 
 Proposal publication date: November 21, 1995 
 For further information, please call: (512) 463-9701 
         
             
  Subchapter E. Board of Trustees Relationship 
 
  19 TAC sec.61.61 
 
  The Texas Education Agency (TEA) adopts the repeal of sec.61.61, concerning 
training for school board members, without changes to the proposed text as 
published in the November 21, 1995, issue of the Texas Register (20 TexReg 
9630). The section specifies the amount, type, and delivery of training required 
of school board members. The repeal is necessary to comply with the sunset 
review process mandated by Senate Bill 1, 74th Texas Legislature, 1995. A new 
sec.61.1 (relating to Continuing Education for School Board Members) is adopted 
in a separate submission. 
 Under Senate Bill 1, a rule adopted by the State Board of Education (SBOE) 
normally does not take effect until the beginning of the school year that begins 
at least 90 days after the date the rule is adopted. However, the Bill provides 
that an SBOE rule may take effect earlier under certain circumstances. The SBOE, 
by an affirmative vote of at least two-thirds of the board members, adopts an 
earlier effective date of March 1, 1996. The earlier date is necessary to allow 
a new rule to be adopted that complies with the requirements of Senate Bill 1 
that will ensure that school board members will have training in a timely 
manner. 
 No comments were received regarding adoption of the repeal. 
 The repeal is adopted under the Texas Education Code, sec.7.102, which 
authorizes the State Board of Education to review specified TEA rules. 
 
  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 25, 1996. 
 TRD-9601073 
  Criss Cloudt 
 Associate Commissioner, Policy Planning and Research 
 Texas Education Agency 
    Effective date: March 1, 1996 
 Proposal publication date: November 21, 1995 
 For further information, please call: (512) 463-9701 
         
               
  TITLE 22. EXAMINING BOARDS 
 Part VI. Texas State Board of Registration for Professional Engineers 
  Chapter 131. Practice and Procedure 
  
  Bylaws and Definitions 
 
  22 TAC sec.131.11 
 
  The Texas State Board of Registration for Professional Engineers adopts an 
amendment to sec.131.11, concerning rules of order, without changes to the 
proposed text as published in the November 7, 1995, issue of the Texas Register  
(20 TexReg 9243). 
 The rule as amended updates the current citation of parliamentary authority 
governing the meetings of the board. 
 The rule provides that the meetings of the board will be governed by the 
current edition of Robert's Rules of Order as newly revised. 
 No comments were received regarding adoption of the amendment. 
 The amendment is adopted under Texas Civil Statutes, Article 3271a, sec.8(a), 
which provide the board with the authority to make and enforce all rules and 
regulations necessary for the performance of its duties. 
 
  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, 1996. 
 TRD-9601042 
  John R. Speed, P.E. 
 Executive Director 
 Texas State Board of Registration for Professional Engineers 
    Effective date: February 14, 1996 
 Proposal publication date: November 7, 1995 
 For further information, please call: (512) 440-7723 
         
             Part XIV. Texas Optometry Board 
  Chapter 273. General Rules 
  
  22 TAC sec.273.4 
 
  The Texas Optometry Board adopts an amendment to sec.273.4, without changes to 
the proposed text as published in the December 15, 1995, issue of the Texas 
Register  (20 TexReg 10735). 
 Rule 273.4 is required in order to remove the cost of providing certification 
letters on a fee schedule but allowing the Board to assess the cost through Open 
Records requests, on a full cost recovery basis as permitted under Rule 272.1. 
 No comments were received regarding of the amendment. 
 The amendment is adopted under the provisions of Texas Civil Statutes Article 
4552, sec.2.14, which provides the Texas Optometry Board with the authority to 
promulgate procedural and substantive rules and to set fees. The Board 
interprets sec.2.14 as authorizing it to establish rules regarding providing of 
public records on a cost recovery basis. 
 
  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 25, 1996. 
 TRD-9601110 
  Lois Ewald 
 Executive Director 
 Texas Optometry Board 
    Effective date: February 15, 1996 
 Proposal publication date: December 15, 1995 
 For further information, please call: (512) 305-8500 
         
         Chapter 279. Interpretations 
  
  22 TAC sec.279.3 
 
  The Texas Optometry Board adopts an amendment to sec.279.3, without changes to 
the proposed text as published in the December 15, 1995 issue of the Texas 
Register  (20 TexReg 10735). 
 Rule 279.3 is required in order to inform licensees that dispensing from a 
patient's optometric record by other optometrists located within the same 
optometric office is permissible and is not in violation of Texas Civil 
Statutes, Article 4552, sec.5.07 which prohibits prescribing without performing 
an eye examination. 
 No comments were received regarding adoption amendment. 
 The amendment is adopted under the provisions of Texas Civil Statutes, Article 
4552, sec.2.14, which provide the Texas Optometry Board with the authority to 
promulgate procedural and substantive rules. The Texas Optometry Board 
interprets Texas Civil Statutes, Article 4552, sec.2.14 and sec.5.07, as 
authorizing the Board to interpret the examination requirements established 
within the statute. 
 
  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 25, 1996. 
 TRD-9601111 
  Lois Ewald 
 Executive Director 
 Texas Optometry Board 
    Effective date: February 15, 1996 
 Proposal publication date: December 15, 1995 
 For further information, please call: (512) 305-8500 
         
       
  22 TAC sec.279.14 
 
  The Texas Optometry Board adopts an amendment to sec.279.14, without changes 
to the proposed text as published in the December 15, 1995, issue of the Texas 
Register  (20 TexReg 10735). 
 Rule 279.14 is required in order to inform the licensees that a facsimile (FAX) 
prescription for spectacles, contact lenses or medication is not considered a 
valid prescription. 
 Two comments were received. LensCrafters and Consumers Union furnished written 
comments against the amendment, asserting the proposal lacks a consumer benefit. 
The Board disagrees. The requirement that prescriptions bear the original 
signature of a licensee protects consumers against prescription alterations. 
Altered facsimiles are more difficult to detect than altered originals. 
 The amendment is adopted under the provisions of Texas Civil Statutes, Article 
4552, sec.sec.1.02(3), 2.14, 5.12(b), and 5.18. The Texas Optometry Board 
interprets sec.sec.1.02(3), 5.12(b), and 5.18 as requiring that prescriptions 
bear original signatures. The Board interprets sec.2.14 as authorizing the Board 
to adopt substantive and procedural rules for the regulation of the profession 
of optometry. 
 
  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 25, 1996. 
 TRD-9601112 
  Lois Ewald 
 Executive Director 
 Texas Optometry Board 
    Effective date: February 15, 1996 
 Proposal publication date: December 15, 1995 
 For further information, please call: (512) 305-8500 
         
             
  TITLE 28. INSURANCE 
 Part I. Texas Department of Insurance 
  Chapter 7. Corporate and Financial Regulation 
  
  Subchapter A. Examination and Corporate Custodian and Tax 
 
  28 TAC sec.7.83 
 
  The Texas Department of Insurance adopts an amendment to  sec.7.83(c)(2), 
concerning the examination reports prepared by other jurisdictions than Texas, 
without changes to the proposed text as published in the September 15, 1995 
issue of the  Texas Register (20 TexReg 7261). 
 The rationale for the amendment to sec.7.83(c)(2) is to provide at some level a 
decrease in the cost of examining foreign and alien companies doing business in 
Texas, as examination costs are ultimately passed on to the consumers of the 
insurance company or the general public by way of premium tax credits, similar 
credits, or charges by the insurance company. Moreover, the amendment promotes 
more equal treatment of companies domiciled in other states without reference to 
NAIC accreditation status. 
 The rule as adopted provides that the department may accept an examination 
report on the company prepared by the insurance department for the company's 
state of domicile. The adoption of amended sec.7.83(c)(2) results in the 
elimination of any requirement that the examining insurance department was 
accredited under the NAIC Financial Regulation Standards and Accreditation 
Program, and it eliminates any requirement that the examination be performed 
under one or more examiners who are employed by such an accredited insurance 
department or that the examination was performed with the participation of an 
examiner who certifies that the examination report was performed in a manner 
consistent with the standards required by his/her insurance department. 
 For: American Counsel of Life Insurance, Washington, D.C. Against: None 
 The amendment is adopted pursuant to the Texas Insurance Code Annotated, 
Article 1.15. Article 1.15 authorizes the Commissioner of Insurance to 
promulgate and adopt rules and regulations for the conduct and execution of the 
duties and functions of the department, including examinations. 
 
  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 25, 1996. 
 TRD-9601117 
  Alicia M. Fechtel 
 General Counsel and Chief Clerk 
 Texas Department of Insurance 
    Effective date: February 15, 1996 
 Proposal publication date: September 15, 1995 
 For further information, please call: (512) 463-6327 
         
               
  Title 34. PUBLIC FINANCE 
 Part I. Comptroller of Public Accounts 
  Chapter 3. Tax Administration 
  
  Subchapter U. Public Utility Gross Receipts Tax 
 
  34 TAC sec.3.511 
 
  The Comptroller of Public Accounts adopts an amendment to sec.3.511, 
concerning due date for assessment, without changes to the proposed text as 
published in the October 17, 1995, issue of the Texas Register (20 TexReg 8413). 
 The section is being amended pursuant to Senate Bill 319, 74th Legislature, 
1995, which changes the section references and House Bill 2128, 74th 
Legislature, 1995, which extends the requirements for a public utility to prepay 
its gross receipts assessment for the years 1997 and 1998. 
 Two comments were received from Southwestern Bell Telephone recommending 
additional language to subsection (d)(2) to further define the payments and to 
make the refund of overpayments an option. 
 The comptroller determined that the comment recommending additional language in 
subsection (d)(2) does not directly address the proposed rule amendment and that 
the comment proposing a refund of overpayments is in conflict with Texas Civil 
Statutes, Article 1446c, sec.1.353(f). 
 This amendment is adopted under the Tax Code, sec.111.002, which provides the 
comptroller with the authority to prescribe, adopt, and enforce rules relating 
to the administration and enforcement of the provisions of the Tax Code, Title 
2. 
 The amendment implements Texas Civil Statutes, Article 1446c, sec.1.352 and 
sec.1.353. 
 
  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 26, 1996. 
 TRD-9601127 
  Martin Cherry 
 Chief, General Law 
 Comptroller of Public Accounts 
    Effective date: February 16, 1996 
 Proposal publication date: October 17, 1995 
 For further information, please call: (512) 463-4062 
         
         
  Subchapter U. Public Utility Gross Receipts Tax 
 
  34 TAC sec.3.513 
 
  The Comptroller of Public Accounts adopts an amendment to sec.3.513, 
concerning tax rate, gross receipts, exclusions and rates, with changes to the 
proposed text as published in the October 17, 1995, issue of the Texas Register  
(20 TexReg 8414). 
 The section is being amended pursuant to Senate Bill 319, Senate Bill 373, and 
House Bill 2128, 74th Legislature, 1995, which changes the section references. 
 One comment was received from Southwestern Bell Telephone concerning the order 
in which definitions appear in the section. 
 The comptroller agrees that the format should be changed and has taken measures 
to implement the change. 
 The amendment is adopted under the Tax Code, sec.111.002, which provides the 
comptroller with the authority to prescribe, adopt, and enforce rules relating 
to the administration and enforcement of the provisions of the Tax Code, Title 
2. 
 The amendment implements Texas Civil Statutes, Article 1446c, 
sec.sec.1.003(14), 1.351, 2.0011(1), and 3.002(9). 
 
 
  sec.3.513. Tax Rate, Gross Receipts, Exclusions and Rates. 
 
  (a) Definitions. The following words and terms, when used in this section, 
shall have the following meanings, unless the context clearly indicates 
otherwise. 
 
  (1) Gross receipts-Includes receipts from charges for services, products or 
commodities which are supplied or sold to an ultimate consumer. The tax 
assessment is not imposed on receipts derived from the sale of products or 
services which are purchased for resale. 
   
  (2)  Rate-Every compensation, tariff, charge, fare, toll, rental and 
classification, or any of them demanded, observed, charged, or collected whether 
directly or indirectly by any public utility for any service, product or 
commodity included in Texas Civil Statutes, Article 1446c, sec.2.0011(1) or 
sec.3.002(9), or any rules, regulations, practices, or contracts affecting any 
compensation, tariff, charge, fare, toll, rental, or classification. 
     
  (b)  Tax rate. Each public utility within the jurisdiction of the Public 
Utility Commission is assessed a tax equal to one-sixth of 1.0% of its gross 
receipts from rates charged to the ultimate customers. 
   
  (c)  Exclusions. Charges which represent taxes or assessments levied on a 
utility taxpayer, and which are passed on to its customers, remain a part of the 
rate charged by the utility, and are receipts subject to the tax. However, taxes 
which are levied on the consumers, and which are collected by utilities as 
agents for the taxing authority, are not receipts, and are not subject to the 
tax. 
 
  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 26, 1996. 
 TRD-9601128 
  Martin Cherry 
 Chief, General Law 
 Comptroller of Public Accounts 
    Effective date: February 16, 1996 
 Proposal publication date: October 17, 1996 
 For further information, please call: (512) 463-4062 
         
           
  34 TAC sec.3.555 
 
  The Comptroller of Public Accounts adopts an amendment to sec.3.555, 
concerning earned surplus: computation, with changes to the proposed text as 
published in the October 31, 1995, issue of the Texas Register (20 TexReg 8991). 
 The change in the text clarifies the term "1990 IRC" as used in subsection 
(b)(4). 
 The reasons for amending the rule are as follows. One amendment changes the 
definition of the Internal Revenue Code in accordance with Senate Bill 644, 74th 
Legislature, 1995. Amendments have been made to the provisions for business 
losses, explaining that a business loss is computed after apportionment and 
allocation, in accordance with Senate Bill 644, 74th Legislature, 1995. In 
accordance with agency policy, a provision has been added to clarify that a 
business loss may only be used by the entity that incurred the business loss; a 
provision has been added to address situations involving corporations who use a 
52/53 week accounting period; and a provision that restricted certain deductions 
for enterprise and solar energy computations has been deleted. 
 No comments were received regarding adoption of the amendment. 
 The amendment is adopted under the Tax Code, sec.111.002, which provides the 
comptroller with the authority to prescribe, adopt, and enforce rules relating 
to the administration and enforcement of the provisions of the Tax Code, Title 
2. 
 The amendment implements the Tax Code, sec.sec.171.001 et seq. 
 
 
  sec.3.555. Earned Surplus: Computation. 
 
  (a) Effective date. The provisions of this section apply to franchise tax 
reports originally due after January 1, 1992. 
   
  (b) Definitions. The following words and terms, when used in this section, 
shall have the following meanings, unless the context clearly indicates 
otherwise. 
 
  (1) Business loss-A negative amount after apportionment and allocation but 
before any deductions for solar energy devices under the Tax Code, sec.171.107, 
or investment in an enterprise zone under the Tax Code, sec.171.1015. 
   
  (2) Corporation-An entity subject to franchise tax under the Tax Code, 
sec.171. 
   
  (3) Dividends from a subsidiary, associate, or affiliate that does not 
transact a substantial portion of its business or maintain a substantial portion 
of its assets in the United States-Dividends treated as gross income from 
sources without the United States under the Internal Revenue Code, sec.862, and 
dividends received from United States corporations that would satisfy the 80% 
foreign business requirements of Internal Revenue Code, sec.861(c)(1). 
   
  (4)  Internal Revenue Code-For reports originally due on or after January 1, 
1996, the Internal Revenue Code (IRC) of 1986 in effect for the tax year 
beginning on or after January 1, 1994, and before January 1, 1995. For reports 
originally due on or after January 1, 1992 and before January 1, 1996, the 
Internal Revenue Code of 1986 in effect for the tax year beginning on or after 
January 1, 1990, and before January 1, 1991 (1990 IRC). The franchise tax law 
requires that the 1990 IRC be used for reports originally due prior to January 
1, 1996. Because of this requirement, there may be differences between federal 
taxable income reported for federal income tax purposes and reportable federal 
taxable income for franchise tax purposes for franchise tax reports originally 
due prior to 1996. To the extent that such differences exist, the 1990 IRC must 
be used to report the differences for reports originally due on or after January 
1, 1996. For example, if a corporation was denied any portion of an IRC sec.179 
deduction on an asset in computing taxable earned surplus on a franchise tax 
report due prior to January 1, 1996 (because the sec.179 deduction exceeded the 
$10,000 limit allowed under the 1990 IRC), the corporation will be allowed to 
compute depreciation on the asset based on the 1990 IRC (i.e., the corporation 
may depreciate the asset based on the $10,000 sec.179 deduction allowed under 
the 1990 IRC) for reports originally due on or after January 1, 1996. 
   
  (5) Schedule C special deductions-The special deductions allowed in computing 
federal taxable income as listed in column 
     
  (c) of Form 1120 of the Department of the Treasury Internal Revenue Service. 
Any limitations on Schedule C deductions imposed for federal income tax purposes 
will apply in computing such deductions for earned surplus. 
   
  (d) Accounting methods. In computing earned surplus, a corporation is deemed 
to have made an election to use the same methods used in filing its federal 
income tax return. 
   
  (e) Jobs and other credits. A corporation required to reduce or forego 
deductions in order to claim credits for federal income tax purposes cannot 
deduct any amount from reportable federal taxable income based on the reduced or 
foregone deductions. For example: 
 
  (1)  if a corporation, in computing federal taxable income, reduces the 
deduction for salaries and wages in order to claim a federal jobs credit, 
reportable federal taxable income is computed without adjustment of the federal 
deduction for salaries and wages; 
   
  (2) if a corporation elects, for federal income tax purposes, to take a 
foreign tax credit instead of a deduction for foreign income or profits taxes, 
reportable federal taxable income is computed without a deduction for such 
taxes. 
     
  (f)  Consolidated income tax returns. For the purposes of this section, if a 
corporation joins in filing a consolidated federal income tax return, the 
corporation must compute its earned surplus as though no consolidated federal 
income tax return were filed. Therefore, taxable income, compensation, and other 
items must be computed as though a separate federal income tax return had been 
filed by the corporation. For example, the corporation must eliminate all 
dividends received from members of the consolidated group with which the 
corporation filed a consolidated federal income tax return. No special or overt 
election is required for purposes of this dividend elimination. If the 
comptroller determines that transactions between members of a controlled group 
of corporations are not entered into on an arm's-length basis, the comptroller 
may distribute or allocate income and deductions as necessary to prevent 
franchise tax avoidance provided such adjustments are authorized by applying the 
principles in Internal Revenue Code, sec.482, and regulations thereunder. 
   
  (g) Deductions. In computing earned surplus for each reporting period, a 
corporation may take Schedule C deductions, deductions under the Internal 
Revenue Code, sec.78 or 951-964, and other items deducted in computing earned 
surplus only to the extent each item is included in computing reportable federal 
taxable income. 
   
  (h) Business losses. 
 
  (1) A business loss which is carried forward to a report year must be deducted 
from apportioned plus allocated taxable earned surplus after any allowable 
deductions for enterprise zone projects or solar energy devices. 
   
  (2)  A business loss which is carried forward to a successive year must be 
applied to the extent of apportioned plus allocated taxable earned surplus in 
that succeeding year. 
   
  (3) A corporation may not convey, assign, or transfer a business loss to 
another entity including, but not limited to, by merger. 
     
  (i) Deductions for solar energy devices and investments in enterprise zones. 
 
  (1) A corporation that elects to take a deduction from apportioned earned 
surplus for solar energy devices under the Tax Code, sec.171.107, or a deduction 
for investments in enterprise zones under the Tax Code, sec.171.1015, may not 
claim a deduction from taxable capital for such item. 
   
  (2) A deduction from apportioned earned surplus for solar energy devices or 
investments in enterprise zones may not reduce apportioned earned surplus below 
zero. Any unused deductions may not be carried over to a subsequent report. 
     
  (j) Officer and director compensation. Regarding the add-back of compensation 
of officers or directors of corporations, managers of limited liability 
companies, and directors and executive officers of banking corporations see 
sec.3.558 of this title (relating to Earned Surplus: Officer and Director 
Compensation). 
   
  (k) Temporary credit on net taxable earned surplus. 
 
  (1) A corporation which qualifies and properly elects a temporary credit from 
net taxable earned surplus under the Tax Code, sec.171.111, may take the credit 
as a reduction of the tax due on earned surplus. See sec.3.559 of this title 
(relating to Earned Surplus: Temporary Credit). 
   
  (2) If the temporary credit is elected on a report, the corporation must pay 
an additional tax of 0.2% of net taxable capital in addition to the franchise 
tax due under the Tax Code, sec.171.002. This additional tax is added to tax 
otherwise due before the provisions of the Tax Code, sec.171.002(d), are 
applied. In other words, if the amount of tax due after adding this additional 
tax is less than $100, then no tax is owed for the reporting period. 
     
  (l) Federal obligations. 
 
  (1) Dividends and interest received from federal obligations are not included 
in earned surplus or gross receipts for earned surplus purposes. 
   
  (2) For purposes of this subsection, the term "federal obligations" means: 
 
  (A)  stocks and other direct obligations of, and obligations unconditionally 
guaranteed by, the United States government and United States government 
agencies; and 
   
  (B) direct obligations of United States government-sponsored agencies. 
     
  (3) The following words and terms, when used in this subsection, shall have 
the following meanings, unless the context clearly indicates otherwise. 
 
  (A) Obligation-Any bond, debenture, security, mortgage-backed security, pass-
through certificate, or other evidence of indebtedness of the issuing entity. 
The term "obligation" does not include a deposit, a repurchase agreement, a 
loan, a lease, a participation in a loan or pool of loans, a loan collateralized 
by an obligation of an agency of the United States government or a loan 
guaranteed by an agency of the United States government. 
   
  (B) United States government-Any department and ministry of the federal 
government including the 12 Federal Reserve Banks. The definition of United 
States government does not include state or local governments or commercial 
enterprises owned in whole or in part by the United States government. In 
addition, the term does not include local government entities or commercial 
enterprises whose obligations are guaranteed by the United States government. 
   
  (C)  United States government agency-An instrumentality of the United States 
government whose obligations are fully and explicitly guaranteed as to the 
timely payment of principal and interest by the full faith and credit of the 
United States government. These agencies include the Government National 
Mortgage Association (GNMA), the Veterans Administration (VA), the Federal 
Housing Administration (FHA), the Farmers Home Administration (FmHA), the 
Export-Import Bank (Exim Bank), the Overseas Private Investment Corporation 
(OPIC), the Commodity Credit Corporation (CCC), and the Small Business 
Administration (SBA). 
   
  (D) United States government-sponsored agency-Agencies originally established 
or chartered by the United States government to serve public purposes specified 
by the United States Congress but whose obligations are not explicitly 
guaranteed by the full faith and credit of the United States government. These 
agencies include the Federal Home Loan Mortgage Corporation (FHLMC), the Federal 
National Mortgage Association (FNMA), the Farm Credit System, the Federal Home 
Loan Bank System, and the Student Loan Marketing Association (SLMA). 
       
  (m) 52-53 week accounting year end. A corporation which uses a 52-53 week 
accounting year end and has an accounting year ending the first four days of 
January of the year during which the annual report is originally due may use the 
preceding December 31 as the date through which taxable earned surplus is 
computed. 
   
  (n) Allocated taxable earned surplus. See the Tax Code sec.171.1061 regarding 
the allocation of certain taxable earned surplus to this state. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's authority. 
 Issued in Austin, Texas, on January 26, 1996. 
 TRD-9601160 
  Martin Cherry 
 Chief, General Law 
 Comptroller of Public Accounts 
    Effective date: February 16, 1996 
 Proposal publication date: October 31, 1995 
 For further information, please call: (512) 463-3725 
         
           
  34 TAC sec.3.556 
 
  The Comptroller of Public Accounts adopts an amendment to sec.3.556, 
concerning earned surplus: S corporations, with changes to the proposed text as 
published in the November 3, 1995, issue of the Texas Register  (20 TexReg 
9149). 
 The change in the text clarifies the term "1990 IRC" as used in subsection 
(b)(2). 
 The reason for amending the rule is to implement legislative changes enacted by 
Senate Bill 644, 74th Legislature, 1995. Subsection (b)(2) was amended to 
reflect the change to the definition of the Internal Revenue Code. 
 No comments were received regarding adoption of the amendment. 
 The amendment is adopted under the Tax Code, sec.111.002, which provides the 
comptroller with the authority to prescribe, adopt, and enforce rules relating 
to the administration and enforcement of the provisions of the Tax Code, Title 
2. 
 The amendment implements the Tax Code, sec.171.001. 
 
 
  sec.3.556. Earned Surplus: S Corporations. 
 
  (a) The provisions of this section apply to franchise tax reports originally 
due after January 1, 1992. 
   
  (b) Definitions. The following words and terms, when used in this section, 
shall have the following meanings, unless the context clearly indicates 
otherwise. 
 
  (1) C corporation-A corporation defined in Internal Revenue Code, 
sec.1361(a)(2). 
   
  (2) Internal Revenue Code-For reports originally due on or after January 1, 
1996, the Internal Revenue Code (IRC) of 1986 in effect for the tax year 
beginning on or after January 1, 1994, and before January 1, 1995. For reports 
originally due on or after January 1, 1992, and before January 1, 1996, the 
lnternal Revenue Code of 1986 in effect for the tax year beginning on or after 
January 1, 1990, and before January 1, 1991 (1990 IRC). The franchise tax law 
requires that the 1990 IRC be used for reports originally due prior to January 
1, 1996. Because of this requirement, there may be differences between federal 
taxable income reported for federal income tax purposes and reportable federal 
taxable income for franchise tax purposes for franchise tax reports originally 
due prior to 1996. To the extent that such differences exist, the 1990 IRC must 
be used to report the differences for reports originally due on or after January 
1, 1996. For example, if a corporation was denied any portion of an IRC sec.179 
deduction on an asset in computing taxable earned surplus on a franchise tax 
report due prior to January 1, 1996 (because the sec.179 deduction exceeded the 
$10,000 limit allowed under the 1990 IRC), the corporation will be allowed to 
compute depreciation on the asset based on the 1990 IRC (i.e., the corporation 
may depreciate the asset based on the $10,000 sec.179 deduction allowed under 
the 1990 IRC) for reports originally due on or after January 1, 1996. 
   
  (3)  S corporation-A corporation as described in the Internal Revenue Code, 
sec.1361. 
   
  (4) Tax reporting period-For the purposes of this section, the period upon 
which the tax is based under the Tax Code, sec.171.1532 or sec.171.0011. 
     
  (c) A corporation shall be treated as an S corporation to the extent the 
corporation qualifies for such treatment during the tax reporting period. See 
sec.3.558 of this title (relating to Earned Surplus: Officer and Director 
Compensation) regarding compensation used in computing earned surplus of an S 
corporation. 
   
  (d) Where and to the extent an S corporation allocates income and deductions 
to shareholders, such items will be treated as income and deductions of the S 
corporation as though the corporation were taxed as a C corporation for federal 
income tax purposes. 
 
  (1) Federal income tax requirements or limitations imposed on the S 
corporation apply for the purposes of this section. 
   
  (2) Unless otherwise provided, federal income tax limitations or other 
restrictions imposed on the shareholders of the S corporation with regard to 
claiming losses, deductions, and other items are ignored in determining taxable 
earned surplus of the S corporation. 
     
  (e) Treatment of specific items reported to S corporation shareholders in 
computing reportable federal taxable income. 
 
  (1) No deduction or reduction is allowed for excess net passive income tax, 
built-in gains taxes, capital gains taxes, the federal tax on fuels, or similar 
taxes imposed on the S corporation. 
   
  (2) Ordinary income from trade or business activities is included while 
ordinary losses from such activities are deducted. 
   
  (3) Net income from rental activities is included and net losses are deducted. 
   
  (4) Dividend income received by an S corporation is included except for: 
 
  (A)  amounts reportable under the Internal Revenue Code, sec.78 or 
sec.sec.951-964; 
   
  (B) dividends from a subsidiary, associate, or affiliate that does not 
transact a substantial portion of its business or maintain a substantial portion 
of its assets in the United States: 
 
  (i) if 80% or more of a corporate payor's gross receipts (as computed for 
earned surplus) are attributable to business outside the United States, the 
corporate payor is not doing a substantial portion of its business within the 
United States. The payor's gross receipts are measured based on the period upon 
which the recipient's tax is based under the Tax Code,  sec.171.0011 or 
sec.171.1532; 
   
  (ii) if 80% or more of a corporate payor's tangible assets (based on original 
cost) are situated outside the United States, the corporate payor does not 
maintain a substantial portion of its assets within the United States. The 
payor's assets are valued at the end of the tax reporting period upon which the 
recipient's tax is based under the Tax Code, sec.171.0011 or sec.171. 1532; 
     
  (C) dividends which qualify for exclusion under the provisions of sec.3.555(k) 
of this title (relating to Earned Surplus: Computation). 
     
  (5) Royalty income is included. 
   
  (6) Taxable interest is included unless the interest qualifies for exclusion 
under the provisions of sec.3.555(k) of this title (relating to Earned Surplus: 
Computation). Interest income which is exempt from federal income taxes is not 
included and expenses related to such income are not deductible in computing 
reportable federal taxable income. 
   
  (7) Salaries and wages used in computing ordinary income or loss are allowed 
in computing reportable federal taxable income after reduction for any jobs 
credit claimed on the federal income tax return for the S corporation. Other 
expenses which are reduced for credits claimed on the return similarly are 
allowed net of such credits. 
   
  (8) Deductions for charitable contributions are allowed. 
   
  (9) Capital losses in excess of capital gains may be deducted. 
   
  (10) If deductions for oil and gas depletion or intangible drilling costs are 
allowed to shareholders of an S corporation rather than to the entity itself, 
the S corporation must compute such deductions as though the entity were taxed 
as a C corporation for federal income tax purposes. 
   
  (11) The corporation is allowed to deduct Internal Revenue Code, sec.179, 
amounts reported to shareholders subject to limitations imposed on the S 
corporation at the corporate level. 
   
  (12)  An S corporation may deduct foreign income taxes reported to 
shareholders unless the taxes are otherwise deducted in computing taxable items 
reported to shareholders. 
   
  (13) The corporation is not allowed to deduct amounts reported to shareholders 
which are personal in nature even though such items may qualify as itemized 
deductions on the shareholder's income tax return. 
     
  (f) Unless otherwise provided under the Tax Code,  sec.171, this section, or 
the rules applicable to the Tax Code, sec.171, S corporations are treated the 
same as any other corporation in computing earned surplus. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's authority. 
 Issued in Austin, Texas, on January 26, 1996. 
 TRD-9601161 
  Martin Cherry 
 Chief, General Law 
 Comptroller of Public Accounts 
    Effective date: February 16, 1996 
 Proposal publication date: November 3, 1995 
 For further information, please call: (512) 463-3725 
         
           
  34 TAC sec.3.558 
 
  The Comptroller of Public Accounts adopts an amendment to sec.3.558, 
concerning earned surplus: officer and director compensation, with changes to 
the proposed text as published in the November 3, 1995, issue of the Texas 
Register (20 TexReg 9149). 
 The change in the text clarifies the term "1990 IRC" as used in subsection 
(b)(1). 
 The reason for amending the rule is to implement legislative changes enacted by 
Senate Bill 644, 74th Legislature, 1995. Subsection (b)(1) was amended to 
reflect the change to the definition of the Internal Revenue Code. 
 No comments were received regarding adoption of the amendment. 
 The amendment is adopted under the Tax Code, sec.111.002, which provides the 
comptroller with the authority to prescribe, adopt, and enforce rules relating 
to the administration and enforcement of the provisions of the Tax Code, Title 
2. 
 The amendment implements the Tax Code, sec.171.001. 
 
 
  sec.3.558. Earned Surplus: Officer and Director Compensation. 
 
  (a) The provisions of this section apply to franchise tax reports originally 
due after January 1, 1992. 
   
  (b) Definitions. The following words and terms, when used in this section, 
shall have the following meanings, unless the context clearly indicates 
otherwise. 
 
  (1) Internal Revenue Code-For reports originally due on or after January 1, 
1996, the Internal Revenue Code (IRC) of 1986 in effect for the tax year 
beginning on or after January 1, 1994, and before January 1, 1995. For reports 
originally due on or after January 1, 1992, and before January 1, 1996, the 
lnternal Revenue Code of 1986 in effect for the tax year beginning on or after 
January 1, 1990, and before January 1, 1991 (1990 IRC). The franchise tax law 
requires that the 1990 IRC be used for reports originally due prior to January 
1, 1996. Because of this requirement, there may be differences between federal 
taxable income reported for federal income tax purposes and reportable federal 
taxable income for franchise tax purposes for franchise tax reports originally 
due prior to 1996. To the extent that such differences exist, the 1990 IRC must 
be used to report the differences for reports originally due on or after January 
1, 1996. For example, if a corporation was denied any portion of an IRC sec.179 
deduction on an asset in computing taxable earned surplus on a franchise tax 
report due prior to January 1, 1996 (because the sec.179 deduction exceeded the 
$10,000 limit allowed under the 1990 IRC), the corporation will be allowed to 
compute depreciation on the asset based on the 1990 IRC (i.e., the corporation 
may depreciate the asset based on the $10,000 sec.179 deduction allowed under 
the 1990 IRC) for reports originally due on or after January 1, 1996. 
   
  (2) Employee-Every individual classified as an employee under Internal Revenue 
Code, sec.3401, and the applicable regulations (i.e., common law employees). An 
individual is treated as an employee of the party for whom services are 
performed even if the employee is reimbursed by a third party under a common 
paymaster or similar arrangement. For the purposes of this section: 
 
  (A) directors of a corporation or banking corporation are treated as employees 
of the corporation; 
   
  (B) managers of a limited liability company are treated as employees even 
though the managers may also be members. 
     
  (3) Compensation-The amount reportable to an officer or director for the tax 
reporting period as includable in the officer/director's federal taxable income 
without regard to any monetary limitations imposed for federal income tax 
purposes. Compensation is included wherever reportable on federal tax reporting 
forms including a Form W-2 Wage and Tax Statement, a Form 1099-MISC, or Schedule 
K-1 of Form 1065. For example: 
 
  (A) if a corporation (subject to the add-back of officer and director 
compensation) issues a Form W-2 to an officer, the compensation included in 
earned surplus is the amount reflected on Form W-2 that must be included in the 
officer's federal taxable income (Block 10 of the 1991 Form W-2); 
   
  (B) if a corporation (subject to the add-back of officer and director 
compensation) issues an officer and director of a corporation a Form W-2 and a 
Form 1099-MISC, compensation included in the corporation's earned surplus for 
that officer/director is the sum of the amount reflected on Form W-2 that the 
officer must include in federal taxable income, the amount reflected on Form 
1099-MISC as nonemployee compensation that the director must include in federal 
taxable income, plus any compensation which would be reportable on Form 1099-
MISC except for monetary limitations. 
     
  (4)  Officers and directors of a corporation other than a banking corporation-
The officers and directors determined in accordance with the laws of the 
corporation's state of incorporation and the corporation's by-laws. 
   
  (5) Executive officers and directors of a banking corporation. 
 
  (A) Executive officer of a banking corporation (bank), which includes a 
limited banking association, means a person who participates or has authority to 
participate (other than in the capacity of a director) in major policymaking 
functions of the bank, whether or not the officer has an official title, the 
title designates the officer an assistant, or the officer is serving without 
salary or other compensation. The chairman of the board, the president, every 
vice president, the cashier, the secretary, and the treasurer of a bank are 
considered executive officers unless the officer is excluded, by resolution of 
the board of directors or by the bylaws of the bank, from participation (other 
than in the capacity of a director) in major policymaking functions of the bank, 
and the officer does not actually participate therein. The term is not intended 
to include persons who may have official titles and may exercise a certain 
measure of discretion in the performance of their duties, including discretion 
in the making of loans, but who do not participate in the determination of major 
policies of the bank and whose decisions are limited by policy standards fixed 
by the senior management of the bank. For example, the term does not include a 
manager or assistant manager of a branch of a bank unless that individual 
participates, or is authorized to participate, in major policymaking functions 
of the bank. 
   
  (B) Directors of a banking corporation. 
 
  (i) For a banking corporation, other than a limited banking association, 
directors are determined based on the bank's charter, by-laws, and other 
requirements imposed by the appropriate regulatory or legal authorities. 
   
  (ii)  For a limited banking association, "directors" means the managers or 
directors determined based on the articles of association, regulations, and 
participation agreement if management is vested in a board of managers or board 
of directors. If management is not vested in a board of managers or board of 
directors, "directors" means the participants in the limited banking 
association. 
   
  (iii) Advisory directors as defined in the Code of Federal Regulations, Title 
12, sec.215.2, are not considered directors for the purposes of this section. 
       
  (6) Officers and directors of a limited liability company -For the purposes of 
this section, the "officers or directors" are the managers or similar management 
persons identified in the articles of organization, operating agreement, or 
similar agreements required under the laws of the state in which the company is 
organized. 
   
  (7)  Shareholder-An individual, corporation, organization, government or 
governmental subdivision or agency, business trust, estate, trust, partnership, 
association, or other legal entity in whose name shares issued by a corporation 
are registered, in whose name membership interests in a limited liability 
company are held, or in whose name participation shares in a limited banking 
association are held, unless the formation of an entity is for tax avoidance 
purposes as indicated in this paragraph. Any entity or individual in whose name 
shares of more than one class of stock are held shall be counted as one 
shareholder for the purposes of this section. For example, a shareholder having 
both common and preferred stock is counted as one shareholder. However, 
ownership interests held by separate legal entities will be counted as separate 
shareholders (or members) even if the separate legal entities have common 
shareholders (or members). If a trust, partnership, or other entity (the 
investor) which is a shareholder or other owner in a corporation (the investee) 
is organized or maintained primarily to avoid the add-back of compensation under 
the Tax Code, sec.171.110(a)(1), each shareholder or owner of such investor 
shall be considered a shareholder of the investee for the purposes of the Tax 
Code, sec.171.110(b)(1). 
   
  (8) Tax reporting period-For the purposes of this section, the period upon 
which the tax is based under the Tax Code, sec.171.1532 or sec.171.0011. 
   
  (9) Unless otherwise indicated in this section, the following will apply: 
 
  (A)  "Banking corporation" includes, but is not limited to, a limited banking 
association; 
   
  (B) "Corporation" includes, but is not limited to, a banking corporation and 
limited liability company; 
   
  (C) "Officer of a corporation" includes, but is not limited to, an executive 
officer of a banking corporation (as defined in paragraph (5) of this 
subsection) and an officer of a limited liability company (as defined in 
paragraph (6) of this subsection). 
   
  (D) "Director of a corporation" includes, but is not limited to, a director of 
a limited liability company (as defined in paragraph (6) of this subsection) and 
a director of a banking corporation (as defined in paragraph (5) of this 
subsection). 
       
  (c) Unless otherwise excluded, if an individual is an officer or director of a 
corporation for a portion of a tax reporting period, compensation for such 
individual is included in computing earned surplus to the extent compensation is 
allocable to the portion of the tax reporting period when the individual was an 
officer or director. 
   
  (d) If an individual is an officer or director of a corporation, all 
compensation to such individual in any capacity as an employee (as defined in 
subsection (b)(2) of this section) of such entity is included in computing 
earned surplus. 
   
  (e) Compensation, as defined in subsection (b)(3) of this section, is included 
in computing earned surplus even if any portion or all of the compensation is 
capitalized for federal income tax purposes. 
   
  (f) If any officer or director of a corporation performs services for such 
corporation which would normally be rendered to the corporation in that 
individual's capacity as an officer or director, any payment or other amount 
deducted by such entity will be compensation to the extent the comptroller 
determines that the intent was the avoidance of franchise tax. For example, if 
officers of a parent and subsidiary perform services for both corporations which 
are billed to the subsidiary by the parent, the comptroller may consider all or 
any portion of the billings as compensation paid to that subsidiary's officers 
which are also officers of the parent. Factors used to determine if such 
payments or other consideration are compensation may include, but are not 
limited to: 
 
  (1) the extent of remuneration to such officers, directors, or managers by the 
entity for whom the services are performed; 
   
  (2) the size and complexity of the business operations of the entity for whom 
the services are performed; and 
   
  (3) the scope of business activities of the entity or individual providing the 
services. 
     
  (g) Exemptions from compensation add-back. 
 
  (1) Compensation is not included in computing earned surplus under the Tax 
Code, sec.171.110, to the extent the compensation is attributable to any portion 
of a tax reporting period when a corporation has fewer than 36 shareholders, a 
limited liability company has fewer than 36 members, or a limited banking 
association has fewer than 36 participants and participant-transferees. 
   
  (2) A corporation or other entity subject to franchise tax is not required to 
include compensation in computing earned surplus for any portion of a tax 
reporting period during which the entity qualifies for treatment as an S 
corporation for federal income tax purposes. If the corporation fails to qualify 
as an S corporation or S corporation status is terminated for any reason, the 
compensation will be included in determining earned surplus at the earlier of 
the time that the entity fails to qualify as an S corporation or S corporation 
status is terminated unless the entity otherwise qualifies to exclude 
compensation in computing earned surplus. 
   
  (3) For the purposes of this subsection, remuneration of officers and 
directors shall not be considered compensation if such remuneration is 
excessive. Factors used in determining to what extent remuneration is excessive 
may include, but are not limited to: 
 
  (A) the officer's or director's qualifications; 
   
  (B) the nature, extent, and scope of the officer/director's work; 
   
  (C) the size and complexity of the business; 
   
  (D) a comparison of remuneration with the gross and net income of the 
business; 
   
  (E) the prevailing general economic conditions; 
   
  (F) remuneration compared to distributions to shareholders; 
   
  (G) prevailing rates of remuneration for comparable positions in comparable 
concerns; and 
   
  (H) the remuneration policy of the taxpayer as to all employees. 
     
  (4) A corporation is required to include compensation in computing earned 
surplus for any portion of a reporting period during which the corporation fails 
to qualify for exclusion under the Tax Code, sec.171.110(b). 
     
  (h) Subsidiary corporations. A subsidiary corporation may not qualify for the 
exclusion under the Tax Code, sec.171.110(b), if it has a parent corporation 
which does not qualify for the exclusion. For the purposes of the Tax Code, 
sec.171.110(c), a corporation qualifies as a parent if it ultimately controls 
the subsidiary even though the control may arise through any series or group of 
other subsidiaries or other entities. 
 
  (1) Control is presumed if a parent company directly or indirectly owns, 
controls, or holds a majority of the outstanding voting stock of a corporation 
or ownership interests in another entity. 
   
  (2) In determining if a corporation is a parent, the comptroller will take 
into account ownership through a related corporation, corporate group, or other 
noncorporate entity. If the corporation has control, as defined in paragraph (1) 
of this subsection, of a related corporation, corporate group, or other 
noncorporate entity that owns a corporation, the entire stock or membership 
interest owned by the related corporation, corporate group, or other 
noncorporate entity will be considered controlled by the corporation owning the 
related corporation, corporate group, or other noncorporate entity. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's authority. 
 Issued in Austin, Texas, on January 26, 1996. 
 TRD-9601162 
  Martin Cherry 
 Chief, General Law 
 Comptroller of Public Accounts 
    Effective date: February 16, 1996 
 Proposal publication date: November 3, 1995 
 For further information, please call: (512) 463-3725 
         
             
  34 TAC sec.3.561 
 
  The Comptroller of Public Accounts adopts an amendment to sec.3.561, 
concerning enterprise zones, with changes to the proposed text as published in 
the October 17, 1995, issue of the Texas Register (20 TexReg 8414). 
 A correction was made to the citation referenced in subsection (k) of this 
section. The subsection should have referenced Tax Code, sec.171.1015. 
 The reason for amending the rule is to implement legislative changes. Some of 
the definitions in subsection (b) were amended in accordance with legislation 
enacted by the 73rd Legislature, 1993, and the 74th Legislature, 1995. 
Subsection (j) was added to provide guidelines for corporations receiving an 
enterprise project designation after August 31, 1993. Subsection (k) was added 
to provide guidelines for corporations receiving an enterprise project 
designation after August 31, 1995. 
 No comments were received regarding adoption of the amendment. 
 The amendment is adopted under the Tax Code, sec.111.002, which provides the 
comptroller with the authority to prescribe, adopt, and enforce rules relating 
to the administration and enforcement of the provisions of the Tax Code, Title 
2. 
 The amendment implements the Tax Code, sec.171.501 and  sec.171.1015. 
 
 
  sec.3.561. Enterprise Zones. 
 
  (a) Except as otherwise provided in this section, the provisions of this 
section apply to franchise tax reports originally due on or after September 1, 
1991. 
   
  (b)  Definitions. The following words and terms, when used in this section, 
shall have the following meanings, unless the context clearly indicates 
otherwise. 
 
  (1) Enterprise project-A person, including a corporation or other entity, 
designated by the Texas Department of Commerce as an enterprise project under 
the Government Code, Chapter 2303. 
   
  (2)  Enterprise zone-An area of the state designated by the Texas Department 
of Commerce as an enterprise zone under the Government Code, Chapter 2303. 
   
  (3) New permanent job-A new employment position that is: 
 
  (A)  created by a qualified business as described by the Government Code, 
sec.2303.402 that has provided employment to a qualified employee of at least 1, 
820 hours annually (applicable to reports originally due on or after September 
1, 1995); and 
   
  (B) intended to exist under the Government Code, Chapter 2303 during the 
period the business is designated as an enterprise project. 
     
  (4) Qualified business-A person, including a corporation or other entity, that 
is certified as a qualified business under the Government Code, sec.2303.402. 
   
  (5) Qualified employee-A person who works for a qualified business and who 
performs at least 50% of the person's service for the business within the 
enterprise zone. See the Government Code, sec.2303.003. 
   
  (6) Qualified investment-Capital equipment or other investment that qualifies 
for depreciation for federal income tax purposes and that is placed in service 
in the enterprise zone not earlier than the 90th day before the date of 
designation as an enterprise project. The investment must be used in the normal 
course of business in the enterprise zone and must not be removed from the zone, 
except for repair and maintenance. 
     
  (c) A corporation may apply for a refund under the Tax Code, sec.171.501, each 
year that it is certified as eligible for refund by the Texas Department of 
Commerce. 
   
  (d) The comptroller shall issue a refund under the Tax Code, sec.171.501, 
after receiving certification from the Texas Department of Commerce that a 
qualified business has created 10 or more new permanent jobs for qualified 
employees in its enterprise zone. The 10 or more new permanent jobs must have 
been created during the calendar year containing the accounting year end on 
which the franchise tax report is based. For example, a corporation with a June 
30, 1992, accounting year end would be eligible for a refund of franchise tax 
paid on its 1993 annual report if 10 or more new permanent jobs are created 
during the 1992 calendar year. 
   
  (e) If a corporation is eligible for a refund under the Tax Code, sec.171.501, 
on its initial report and that report includes a regular annual period, the 
corporation will be entitled to two refunds: 
 
  (1) a refund for the initial and second periods; and 
   
  (2) a refund for the regular annual period. 
     
  (f) Claims for refund under this rule must be on the form provided by the 
comptroller for that purpose. The claim must indicate the report year in which 
franchise tax was paid. The claim must include certification from the Texas 
Department of Commerce that 10 or more new permanent jobs have been created 
during the applicable calendar year. 
   
  (g) A corporation that the Texas Department of Commerce has certified to be a 
qualified business eligible for a tax deduction may elect to reduce either its 
apportioned taxable capital or apportioned taxable earned surplus in accordance 
with the Tax Code, sec.171.1015, on each report based on a fiscal year during 
all or part of which the corporation is designated an enterprise project. An 
election for an initial period applies to the second tax period and to the first 
regular annual period. This requirement is applicable to the first regular 
annual period whether it is included in the corporation's initial report or 
first annual report. Otherwise, the election will not be binding on the 
corporation for future reports. 
 
  (1) The deduction from apportioned taxable capital is limited to 50% of the 
depreciated value of qualified investments. For example, a corporation with a 
June 30 fiscal year end is designated as an enterprise project on January 3, 
1991. The corporation's 1992 annual report (based on its June 30, 1991, fiscal 
year end) would be the first report in which it would be eligible for a taxable 
capital deduction under the Tax Code, sec.171.1015. The deduction would apply to 
qualified investments placed in service in the enterprise zone on or after 
January 3, 1991. 
   
  (2) The deduction from apportioned taxable earned surplus is limited to 5.0% 
of the depreciated value of qualified investments. For example, a corporation 
with a June 30 fiscal year end is designated as an enterprise project on January 
3, 1991. The corporation would be eligible for the earned surplus deduction on 
its 1992 annual report (based on its June 30, 1991, fiscal year end) under the 
Tax Code, sec.171.1015. The deduction would apply to qualified investments 
placed in service in the enterprise zone on or after January 3, 1991. 
     
  (h) A corporation must retain records substantiating its apportioned taxable 
capital or apportioned taxable earned surplus deduction. The records must be 
verifiable by audit and include copies of invoices showing the items purchased, 
the date of purchase, and the cost of the purchase. The records must also 
reflect the depreciated value of the items purchased and show that these items 
were placed in service in the zone after the corporation's designation as an 
enterprise project. 
   
  (i) A corporation receiving its enterprise project designation after August 
31, 1991, cannot claim a tax base deduction under the Tax Code, sec.171.1015, 
until after August 31, 1993. For example, a corporation with a November 30, 
1991, fiscal year end is designated an enterprise project on September 30, 1991. 
The corporation could not claim the tax base deduction on its 1992 report until 
after August 31, 1993. An amended report would have to be filed at that time. 
   
  (j) A corporation receiving its enterprise project designation after August 
31, 1993, cannot claim a tax base deduction under the Tax Code, sec.171. 1015, 
until after August 31, 1995. For example, a corporation with a November 30, 
1993, fiscal year end is designated an enterprise project on September 30, 1993. 
The corporation could not claim the tax base deduction on its 1994 report until 
after August 31, 1995. An amended report would have to be filed at that time. 
   
  (k) A corporation receiving its enterprise project designation after August 
31, 1995, cannot claim a tax base deduction under the Tax Code, sec.171.1015, 
until after August 31, 1997. For example, a corporation with a November 30, 
1995, fiscal year end is designated an enterprise project on September 30, 1995. 
The corporation could not claim the tax base deduction on its 1996 report until 
after August 31, 1997. An amended report would have to be filed at that time. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's authority. 
 Issued in Austin, Texas, on January 26, 1996. 
 TRD-9601163 
  Martin Cherry 
 Chief, General Law 
 Comptroller of Public Accounts 
    Effective date: February 16, 1996 
 Proposal publication date: October 17, 1995 
 For further information, please call: (512) 463-3725 
         
           
  34 TAC sec.3.562 
 
  The Comptroller of Public Accounts adopts an amendment to sec.3.562, 
concerning limited liability companies, with changes to the proposed text as 
published in the November 3, 1995, issue of the Texas Register (20 TexReg 9150). 
 The change in the text clarifies the term "1990 IRC" as used in subsection 
(b)(2). 
 The reason for amending the rule is to implement legislative changes enacted by 
Senate Bill 644, 74th Legislature, 1995. Subsection (b)(2) was amended to 
reflect the change to the definition of the Internal Revenue Code. 
 No comments were received regarding adoption of the amendment. 
 The amendment is adopted under the Tax Code, sec.111.002, which provides the 
comptroller with the authority to prescribe, adopt, and enforce rules relating 
to the administration and enforcement of the provisions of the Tax Code, Title 
2. 
 The amendment implements the Tax Code, sec.171.001. 
 
 
  sec.3.562. Limited Liability Companies. 
 
  (a) Effective date. The provisions of this section apply to franchise tax 
reports originally due on or after August 26, 1991. 
   
  (b) Definitions. The following words and terms, when used in this section, 
shall have the following meanings, unless the context clearly indicates 
otherwise. 
 
  (1) Limited liability company-A company organized and existing under the 
provisions of the Texas Limited Liability Company Act or a foreign limited 
liability company described in the Act, Article 1.02 A(9). 
   
  (2) Internal Revenue Code-For reports originally due on or after January 1, 
1996, the Internal Revenue Code (IRC) of 1986 in effect for the tax year 
beginning on or after January 1, 1994, and before January 1, 1995. For reports 
originally due on or after January 1, 1992, and before January 1, 1996, the 
lnternal Revenue Code of 1986 in effect for the tax year beginning on or after 
January 1, 1990, and before January 1, 1991 (1990 IRC). The franchise tax law 
requires that the 1990 IRC be used for reports originally due prior to January 
1, 1996. Because of this requirement, there may be differences between federal 
taxable income reported for federal income tax purposes and reportable federal 
taxable income for franchise tax purposes for franchise tax reports originally 
due prior to 1996. To the extent that such differences exist, the 1990 IRC must 
be used to report the differences for reports originally due on or after January 
1, 1996. For example, if a corporation was denied any portion of an IRC sec.179 
deduction on an asset in computing taxable earned surplus on a franchise tax 
report due prior to January 1, 1996 (because the sec.179 deduction exceeded the 
$10,000 limit allowed under the 1990 IRC), the corporation will be allowed to 
compute depreciation on the asset based on the 1990 IRC (i.e., the corporation 
may depreciate the asset based on the $10,000 sec.179 deduction allowed under 
the 1990 IRC) for reports originally due on or after January 1, 1996. 
   
  (3) C corporation-A corporation defined in Internal Revenue Code, 
sec.1361(a)(2). 
   
  (4)  Tax reporting period-For the purposes of this section, the period upon 
which the tax is based under the Tax Code, sec.171. 1532 or sec.171.0011. 
     
  (c) Taxable capital. To determine the taxable capital of a limited liability 
company, add the company's members' contributions, as provided for under the 
Texas Limited Liability Company Act, and surplus. 
 
  (1) The Texas Limited Liability Company Act, Article 5. 01A, provides that the 
contribution of a member may be in cash, property or services rendered, or a 
promissory note or other obligation to pay cash or transfer property to the 
limited liability company. 
   
  (2) A member's contribution is the sum of the cash contributed and the agreed 
value of any other contribution made plus the amount of cash and the agreed 
value of any other contribution which the member has agreed to make in the 
future as an additional contribution, provided that the promise by a member to 
make a contribution to, or otherwise pay cash or transfer property to, the 
limited liability company is set out in writing and signed by the member. 
     
  (d)  Earned surplus. Where and to the extent a limited liability company 
allocates income and deductions to its members for federal income tax, such 
items will be treated as income and deductions in determining earned surplus of 
the limited liability company as though it were taxed as a C corporation for 
federal income tax purposes. 
 
  (l) Federal income tax requirements or limitations imposed on the limited 
liability company apply for purposes of this section. 
   
  (2) Unless otherwise provided, federal income tax limitations or other 
restrictions imposed on the members of the limited liability company with regard 
to claiming losses, deductions, and other items are ignored in determining 
taxable earned surplus of the limited liability company. 
     
  (e) Limited liability company treated as partnership for federal income tax 
purposes. Treatment of specific items reported to limited liability company 
members in computing reportable federal taxable income for earned surplus 
purposes. 
 
  (1) Ordinary income from trade or business activities is included and ordinary 
losses from such activities are deducted. 
   
  (2) Net income from rental activities is included and net losses are deducted. 
   
  (3) Taxable interest is included unless the interest qualifies for exclusion 
under the provisions of sec.3.555(k) of this title (relating to Earned Surplus: 
Computation). Interest income which is exempt from federal income tax is 
excluded and expenses related to such income are not deductible in computing 
reportable federal taxable income. 
   
  (4) Dividend income received by a limited liability company is included except 
for: 
 
  (A) amounts reportable under the Internal Revenue Code, sec.78 or sec.sec.951-
964; 
   
  (B) dividends from a subsidiary, associate, or affiliate that does not 
transact a substantial portion of its business or regularly maintain a 
substantial portion of its assets in the United States: 
 
  (i) if 80% or more of a corporate payor's gross receipts (as computed for 
earned surplus) are attributable to business outside the United States, then the 
corporate payor is not doing a substantial portion of its business within the 
United States. The payor's gross receipts are measured based on the period upon 
which the recipient's tax is based under the Tax Code, sec.171.0011 or 
sec.171.1532; or 
   
  (ii) if 80% or more of a corporate payor's tangible assets (based on original 
cost) are situated outside the United States, then the corporate payor does not 
maintain a substantial portion of its assets within the United States. The 
payor's assets are valued at the end of the tax reporting period upon which the 
recipient's tax is based under the Tax Code, sec.171.0011 or sec.171.1532; 
     
  (C) dividends which qualify for exclusion under the provisions of sec.3.555(k) 
of this title (relating to Earned Surplus: Computation). 
     
  (5) Royalty income is included. 
   
  (6) Payments made to members which qualify as guaranteed payments under 
Internal Revenue Code, sec.707(c), and which constitute ordinary and necessary 
business expenses under Internal Revenue Code, sec.162, but are not subject to 
Internal Revenue Code, sec.263, are deductible. 
   
  (7)  Salaries and wages used in computing ordinary income or loss are allowed 
in computing reportable federal taxable income after deduction for any jobs 
credit claimed on the limited liability company federal income tax return. Other 
expenses which are reduced for credits claimed on the federal income tax return 
similarly are allowed net of such credits. 
   
  (8) Deductions for charitable contributions are allowed. 
   
  (9) Capital losses in excess of capital gains are deductible. 
   
  (10) If deductions for oil and gas depletion or intangible drilling costs are 
allowable to members of a limited liability company rather than to the entity 
itself, the limited liability company must compute such deductions as though the 
entity were taxed as a C corporation for federal income tax purposes. 
   
  (11) The limited liability company is allowed to deduct Internal Revenue Code, 
sec.179, amounts reported to members, subject to limitations imposed on the 
limited liability company as if it were taxed as a C corporation. 
   
  (12) A limited liability company may deduct foreign income taxes reported to 
members unless the taxes are otherwise deducted in computing taxable items 
reported to members. 
   
  (13) No deduction is allowed for amounts reported to members which are 
personal expenses even though such items may qualify as itemized deductions on 
the member's income tax return. 
     
  (f) Officer and director compensation. See sec.3.558 of this title (relating 
to Earned Surplus: Officer and Director Compensation) regarding compensation 
used in computing earned surplus of a limited liability company. 
   
  (g)  One-person limited liability companies. A one-person limited liability 
company may not deduct officer and director compensation from earned surplus. 
   
  (h) Corporate members of limited liability companies. 
 
  (1)  Taxable capital. 
 
  (A) A corporate member of a limited liability company must use the cost method 
of accounting for its investment in the limited liability company. 
   
  (B) Cost is the original valuation of the investment under Generally Accepted 
Accounting Principles. There will be no adjustment for the member's distributive 
share of the limited liability company's items of income or loss as reported 
annually by the limited liability company. The cost of an investee (limited 
liability company) will be reduced by distributions and/or withdrawals from the 
investee insofar as such distributions represent a return of capital. 
   
  (C) To the extent a distribution and/or withdrawal from the limited liability 
company is made up of current or previous undistributed earnings of the limited 
liability company and not a return of capital, it is included in gross receipts 
for taxable capital of the receiving corporate member. These distributions 
and/or withdrawals are apportioned based on the state of organization of the 
payor (limited liability company). 
     
  (2) Earned surplus. 
 
  (A) A corporate member's distributive share of a limited liability company's 
items of income or loss is not included in the member's earned surplus or gross 
receipts for earned surplus to the extent the items would have been reported at 
the limited liability company level. 
   
  (B) Distributions and/or withdrawals from a limited liability company are not 
included in earned surplus and are not considered gross receipts for 
apportionment purposes unless a gain is recognized for federal income tax 
purposes. These distributions and/or withdrawals are apportioned based on the 
state of organization of the payor (limited liability company). 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's authority. 
 Issued in Austin, Texas, on January 26, 1996. 
 TRD-9601164 
  Martin Cherry 
 Chief, General Law 
 Comptroller of Public Accounts 
    Effective date: February 16, 1996 
 Proposal publication date: November 3, 1995 
 For further information, please call: (512) 463-3725 
         
                 
  Subchapter GG. Insurance Tax 
 
  34 TAC sec.3.832 
 
  The Comptroller of Public Accounts adopts new sec.3.832, concerning the 
assessment for the Office of Public Insurance Counsel (O.P.I.C.), without 
changes to the proposed text as published in the November 24, 1995, issue of the 
Texas Register (20 TexReg 9835). 
 This new section defines the premiums to be included in the calculation of the 
assessment. The new section clarifies the tax base for the purpose of the 
assessment. 
 No comments were received regarding adoption of the new section. 
 The new section is adopted under the Tax Code, sec.111.002, which provides the 
comptroller with the authority to prescribe, adopt, and enforce rules relating 
to the administration and enforcement of the provisions of the Tax Code, Title 
2. 
 The new section implements the Insurance Code, Article 1.35B. 
 
  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, 1996. 
 TRD-9601041 
  Martin Cherry 
 Chief, General Law 
 Comptroller of Public Accounts 
    Effective date: February 14, 1996 
 Proposal publication date: November 24, 1995 
 For further information, please call: (512) 463-4062 
         
             Part VIII. State Depository Board 
  Chapter 171. Collateral Transactions 
  
  34 TAC sec.171.1 
 
  The Texas State Depository Board adopts an amendment to  sec.171.1, concerning 
the deposit of security collateral by financial institutions designated as state 
depositories, without changes to the proposed text as published in the September 
22, 1995, issue of the Texas Register (20 TexReg 7585). 
 In the past it has been difficult for the Texas State Treasury to obtain a 
reliable price for certain securities. The amendment will facilitate the ongoing 
repricing of securities which are deemed acceptable by the Texas State 
Depository Board as collateral for state funds. 
 The amendment clarifies what securities are acceptable as collateral for state 
funds. 
 No comments were received regarding adoption of the amendment. 
 The amendment is adopted under Texas Government Code, sec.404.013, which 
authorizes the State Depository Board to adopt rules governing the establishment 
and conduct of state depositories. 
 
  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, 1996. 
 TRD-9600966 
  James R. Howell 
 General Counsel 
 Texas State Treasury 
    Effective date: February 13, 1996 
 Proposal publication date: September 22, 1995 
 For further information, please call: (512) 463-5971 
         
             
  TITLE 40. SOCIAL SERVICES AND ASSISTANCE 
 Part I. Texas Department of Human Services 
  Chapter 17. Tel-assistance Service (TAS) Program 
  
  General Information 
 
  40 TAC sec.17.1 
 
  The Texas Department of Human Services (DHS) adopts an amendment to sec.17. 1, 
without changes to the proposed text as published in the December 22, 1995, 
issue of the Texas Register (20 TexReg 10985). 
 Justification for the amendment is an increase in the number of clients 
eligible for a reduction in their basic monthly telephone service of 65%. 
 The amendment will function by eliminating the requirement that recipients be 
age 65 or older and to establish residency requirements. As a result of action 
by the 74th Texas Legislature, the deletion of the age requirement is required 
by Texas Civil Statutes, Article 1446c-0, Section 3.602. 
 The department received no comments on the proposal. 
 The amendment is adopted under the Human Resources Code, Title 2, Chapter 22, 
which authorizes the department to administer public assistance programs, and 
under Texas Civil Statutes, Article 1446c-0, which provides for the Tel-
assistance Service Program. 
 The amendment implements the Human Resources Code, sec. sec.22.001-22.024, and 
Texas Civil Statutes, Article 1446c-0. 
 
  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, 1996. 
 TRD-9601056 
  Nancy Murphy 
 Section Manager, Media and Policy Services 
 Texas Department of Human Services 
    Effective date: February 14, 1996 
 Proposal publication date: December 22, 1995 
 For further information, please call: (512) 438-3765 
         
             Part IV. Texas Commission for the Blind 
  Chapter 159. Administrative Rules and Procedures 
  
  Procedures of the Commission 
 
  40 TAC sec.159.6 
 
  The Texas Commission for the Blind adopts an amendment to sec.159.6, 
concerning meetings of the board without changes to the proposed text as 
published in the December 26, 1995, issue of the Texas Register (20 TexReg 
11111). 
 The amendment is adopted to expand the minimum number of times the board meets 
in a calendar year from one to four. The amendment will serve as notice to the 
public that the board will meet at least quarterly unless otherwise agreed to by 
two-thirds of the board. 
 No comments were received regarding adoption of the amendment. 
 The amendment is adopted under the Human Resources Code, Title 5, Chapter 91, 
which authorizes the commission to adopt rules prescribing the policies and 
procedures followed by the commission in the administration of its programs. 
 
  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 29, 1996. 
 TRD-9601192 
  Pat D. Westbrook 
 Executive Director 
 Texas Commission for the Blind 
    Effective date: February 19, 1996 
 Proposal publication date: December 26, 1995 
 For further information, please call: (512) 459-2611 
         
           Chapter 163. Vocational Rehabilitation Program 
  
  Subchapter A. General Information 
 
  40 TAC sec.163.5 
 
  The Texas Commission for the Blind adopts new sec.163.5, concerning the 
commission's Vocational Rehabilitation Program without changes to the proposed 
text as published in the December 26, 1995, issue of the Texas Register  (20 
TexReg 11111). 
 The commission adopts this section to explain that applicants and consumers may 
appeal determinations made by rehabilitation counselors concerning eligibility 
for services, denial of services, or termination of services. 
 No comments were received regarding adoption of the new rule. 
 The new section is adopted under the Human Resources Code, Title 5, Chapter 91, 
sec.91.011(g), which authorizes the commission to adopt rules prescribing the 
policies and procedures followed by the commission in the administration of its 
programs, and 29 United States Code sec.sec.701 et seq, Title I of the 
Rehabilitation Act of 1993, as amended, which requires the commission to offer 
to applicants and consumers the opportunity to appeal determinations. 
 
  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 29, 1996. 
 TRD-9601193 
  Pat D. Westbrook 
 Executive Director 
 Texas Commission for the Blind 
    Effective date: February 19, 1996 
 Proposal publication date: December 26, 1995 
 For further Information, please call: (512) 459-2611 
         
         
  Subchapter E. Consumer Participation in Cost of Services. 
 
  40 TAC sec.163.62, sec.163.63 
 
  The Texas Commission for the Blind adopts amendments to  sec.163.62 and 
sec.163.63, concerning consumer participation in the cost of vocational 
rehabilitation services, without changes to the proposed text as published in 
the December 26, 1995, issue of the Texas Register (20 TexReg 11113). 
 The amendments are adopted to clarify the definitions of dependent and minor 
for the purposes of determining family income and to remove the waiver authority 
retained by the executive director under the subchapter to ensure statewide 
equitable treatment. 
 No comments were received regarding adoption of the amendments. 
 The amendments are adopted under the Human Resources Code, Title 5, Chapter 91, 
sec.91.011(g), which authorizes the commission to adopt rules prescribing the 
policies and procedures followed by the commission in the administration of its 
programs. 
 
  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 29, 1996. 
 TRD-9601194 
  Pat D. Westbrook 
 Executive Director 
 Texas Commission for the Blind 
    Effective date: February 19, 1996 
 Proposal publication date: December 26, 1995 
 For further information, please call: (512) 459-2611 
         
         
  Subchapter F. Maximum Affordable Payment 
 
  40 TAC sec.163.75 
 
  The Texas Commission for the Blind adopts an amendment to sec.163.75, 
concerning the maximum amount the commission pays for a medical or medically 
related service and interpreter services through the commission's Vocational 
Rehabilitation Program, without changes to the proposed text as published in the 
December 26, 1995, issue of the Texas Register  (20 TexReg 11112). 
 The purpose of the amendment is to use different verb forms in the rule to 
clarify that the payment schedule shall not be so low as to effectively deny a 
person a necessary service. 
 No comments were received regarding adoption of the amendment. 
 The amendment is adopted under the Human Resources Code, Title 5, Chapter 91, 
sec.91.011(g), which authorizes the commission to adopt rules prescribing the 
policies and procedures followed by the commission in the administration of its 
programs. 
 
  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 29, 1996. 
 TRD-9601195 
  Pat D. Westbrook 
 Executive Director 
 Texas Commission for the Blind 
    Effective date: February 19, 1996 
 Proposal publication date: December 26, 1995 
 For further information, please call: (512) 459-2611 
         
           Chapter 174. Endowment Loan Fund 
  
  40 TAC sec.sec.174.2-174.4, 174.6, 174.8-174.12 
 
  The Texas Commission for the Blind adopts amendments to  sec.sec.174.2-174.4, 
174.6, 174.8-174.12, concerning procedures for obtaining a loan from the agency 
for the purchase of technological aids. The amendment to sec.174.8 is adpoted 
with changes to the proposed text as published in the December 26, 1995, issue 
of the Texas Register (20 TexReg 11114). Amendments to sec.sec.174.2-174.4, 
174.6, and 174.9-174.12 are adopted without changes and will not be republished. 
 The amendments are adopted to insert appropriate verb forms for clarity, to 
correct cross references to other rules that have changed in the commission's 
recodification process, and to correct terminology no longer used by the 
commission in the provision of services. 
 No comments were received regarding adoption of the amendments. The Commission 
is amending sec.174.8(d) to correct the agency's address, which was overlooked 
in the proposal. 
 The amendments are adopted under the Human Resources Code, Title 5, Chapter 91, 
sec.91.0301, which authorizes the commission to establish a program to make 
loans to finance the purchase of technological aids for persons who are visually 
handicapped, and which authorizes the commission to promulgate rules to 
administer the program. 
 
 
  sec.174.8. Application. 
 
  (a)-(b) (No change.) 
   
  (c) An evaluation shall be made of an applicant's financial condition. The 
applicant's financial condition must be such as to allow him or her to make 
reasonable payments. The income and debts of the applicant's spouse may be 
considered in the evaluation. In such cases, the promissory note shall be 
executed jointly. 
   
  (d) The commission adopts by reference agency forms titled "Endowment Loan 
Fund Application," "Promissory Note," and "Security Agreement," as well as 
Standard Form UCC-1 (Rev. 10-28-81), entitled "Financing Statement," approved by 
the Secretary of State of Texas to document all information required of an 
applicant in applying for and in securing a loan, and subsequent repayment. 
Copies of these forms are available for viewing at any district office of the 
commission and the central office located at 4800 North Lamar in Austin. 
   
  (e)  Disapproval of loan requests shall be made in writing to the applicant 
and shall specify reasons for denial. 
 
  This agency hereby certifies that the section 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 29, 1996. 
 TRD-9601196 
  Pat D. Westbrook 
 Executive Director 
 Texas Commission for the Blind 
    Effective date: February 19, 1996 
 Proposal publication date: December 26, 1995 
 For further information, please call: (512) 459-2611