Part VI.
Texas Board of Professional Engineers
Chapter 131.
Practice and Procedure
Subchapter H. Licensing
22 TAC §131.132
The Texas Board of Professional Engineers proposes an amendment
to §131.132, concerning licensing.
The amendment will establish provisions for the issuance of provisional
licenses in accordance with the Texas Engineering Practice Act, §20A.
John R. Speed, P.E., executive director, Texas Board of Professional Engineers,
has determined that for the first five-year period the section is in effect
there will no effect for state or local government.
Mr. Speed also has determined that for each year of the first five years
the section is in effect the public benefit anticipated as a result of enforcing
the section will be established provisions for the issuance of provisional
licenses in accordance with the Texas Engineering Practice Act, §20A.
There will be no effect on small businesses. There is no anticipated economic
cost to persons who are required to comply with the section as proposed.
Comments on the proposal may be submitted to John R. Speed, P.E., Executive
Director, Texas Board of Professional Engineers, P.O. Drawer 18329, Austin,
Texas 78760.
The amendment is proposed under Texas Civil Statutes, Article
3271a, §8(a), which provide the Texas Board of Professional Engineers
with the authority to promulgate rules in accordance with the Texas Engineering
Practice Act, §20A.
Texas Civil Statutes, Article 3271a, §20A is affected by the proposed
amendment.
§131.132.Provisional Licenses.
(a)
The board
may
[
(b)
The provisional license may
be converted to a regular license by the executive director upon submission
of five reference statements as described in §131.71(b) of this title
(relating to References), and approval of those references within the context
of previously submitted information. If the executive director does not approve
the conversion of the provisional license to a regular license, the materials
submitted to the board shall be considered an application for a regular license
and shall be subject to the processes of §§131.111-131.116 of this
title (relating to Board Review of Application).
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April
19, 1999.
TRD-9902240
John R. Speed, P.E.
Executive Director
Texas Board of Professional Engineers
Earliest possible date of adoption: May 30, 1999
For further information, please call: (512) 440-7723
Chapter 535.
Provisions of the Real Estate License Act
Subchapter A. General Provisions Relating to the Requirement of Licensure
22 TAC §§535.1-535.3
The Texas Real Estate Commission (TREC) proposes amendments
to §535.1, concerning when a real estate license is required, §535.2,
concerning the broker's responsibility, and §535.3, concerning compensation
accepted by a salesperson. The amendments would generally shorten the sections
by eliminating unnecessary provisions and combining other provisions. These
changes are proposed in connection with TREC's pending review of its rules
in Chapter 535 of the Texas Administrative Code. Adoption of the amendments
would continue the process of reducing the volume of TREC's rules wherever
possible and making the rules easier for the public to use.
The amendment to §535.1 would clarify that Texas Civil Statutes, Article
6573a, (the Act) applies to those persons acting as real estate brokers or
salespersons in Texas, and that a person not licensed in Texas may conduct
real estate business from another state on the Internet, as well as by telephone
or correspondence. Several subsections would be deleted as unnecessary since
the issues they concern are either addressed elsewhere in TREC's rules or
in the Act. The section also would be revised to combine a number of subsections
which describe activities for which a license is not required, such as the
performance of secretarial or clerical functions. A general definition of
the terms "property" and "real property" would be provided for clarification
of the terms used in TREC's rules.
The amendment to §535.2 would eliminate unnecessary provisions which
address matters not within the jurisdiction of the commission, combine other
provisions relating to the responsibility of the broker, and restate other
provisions in clearer language. The amendment to §535.3 would broaden
the scope of that section to address payment of compensation by salespersons
as well as compensation paid to salespersons.
Mark A. Moseley, General Counsel , has determined that for the first five-year
period the sections are in effect there will be no fiscal implications for
state or local government as a result of enforcing or administering the sections.
There is no anticipated impact on local or state employment as a result of
implementing the sections.
Mr. Moseley also has determined that for each year of the first five years
the sections as proposed are in effect the public benefit anticipated as a
result of enforcing the sections will be a reduction in the number of TREC
rules and greater ease in reading the remaining rules. There is no anticipated
economic cost to persons who are required to comply with the proposed sections.
Comments on the proposal may be submitted to Mark A. Moseley, General Counsel,
Texas Real Estate Commission, P.O. Box 12188, Austin, Texas, 78711-2188.
The amendments are proposed under Texas Civil Statutes, Article
6573a, §5(h), which authorize the Texas Real Estate Commission to make
and enforce all rules and regulations necessary for the performance of its
duties.
The statute which is affected by this proposal is Texas Civil Statutes,
Article 6573a.
§535.1.License Required.
(a)
Texas Civil Statutes, Article 6573a (the Act) applies
to persons acting as real estate brokers or salespersons within this state,
regardless of the location of the real estate involved or the residence of
the person's customers or clients. For the purposes of the Act, conducting
business from another state by mail, telephone, the Internet, e-mail or other
electronic medium is not considered acting within this state.
[
[(b)
The Real Estate License Act does not
govern activities in other states. Real estate licensure is not required if
negotiations for the sale of Texas property are not carried on or conducted
within the State of Texas.]
[(c)
The Real Estate License Act is an agency
law and requires licensure of those who would act as real estate agents in
Texas, but the Texas Real Estate Commission does not approve or disapprove
of land to be sold in Texas. There are no special requirements for a broker
to offer foreign real property for sale in Texas.]
[(d)
Negotiating from another state with someone
within the State of Texas or offering property by mail from another state
to residents of Texas does not require Texas real estate licensure.]
[(e)
The Real Estate License Act permits Texas-licensed
brokers to cooperate with and share earned commission with persons licensed
as brokers by other states, but all negotiations within Texas must be handled
by Texas licensees. For the purposes of this section, "states" includes the
states, territories, and possessions of the United States and any foreign
country or governmental subdivision thereof.]
(b)
[
(c)
[
[(1)
training or motivating personnel; and]
[(2)
performing duties generally associated
with office administration and personnel matters.]
(d)
[
§535.2.Broker's Responsibility.
(a)
[
[(b)
Licensure as either a Texas real estate
salesperson or broker does not require membership in any trade association
or local board.]
[
A broker is responsible for the authorized
acts of the broker's salespersons, but the broker
is not required to
supervise the salespersons directly
[
[(d)
A salesperson may work in or out of a
real estate office without direct supervision of the salesperson's sponsoring
broker. This in no way lessens the degree of responsibility of the sponsoring
broker for the salesperson's actions.]
[(e)
A real estate salesperson is not required
by this Act to sell a home or other real property owned by the salesperson
through the salesperson's sponsoring broker. Such may be a matter of civil
agreement between the two.]
(b)
[
[(g)
A broker is responsible for the authorized
acts of the broker's associates whether they are licensed as salespersons
or brokers.]
(c)
[
§535.3.Compensation to or paid by a [
A salesperson may not receive a commission or other fee except
with the consent of the salesperson's sponsoring broker or the broker who
sponsored the salesperson when the salesperson became entitled to the commission
or fee. A salesperson may not pay a commission or other fee to another person
except with the consent of the salesperson's sponsoring broker.
[
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on
April 16, 1999.
TRD-9902232
Mark A. Moseley
General Counsel
Texas Real Estate Commission
Earliest possible date of adoption: May 30, 1999
For further information, please call: (512) 465-3900
22 TAC §535.4
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the Texas Real Estate Commission or in the Texas Register office, Room 245,
James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Texas Real Estate Commission (TREC) proposes
the repeal of §535.4, concerning compensation paid by a salesperson.
The provisions in §535.4 would be moved to §535.3 in connection
with a proposed amendment to that section. These changes are proposed as part
of TREC's pending review of its rules in Chapter 535 of the Texas Administrative
Code. Adoption of the repeal would continue the process of reducing the volume
of TREC's rules wherever possible and making the rules easier for the public
to use.
Mark A. Moseley, General Counsel , has determined that for the first five-year
period the repeal is in effect there will be no fiscal implications for state
or local government as a result of enforcing or administering the repeal.
There is no anticipated impact on local or state employment as a result of
implementing the repeal.
Mr. Moseley also has determined that for each year of the first five years
the repeal as proposed is in effect the public benefit anticipated as a result
of enforcing the repeal will be a reduction in the number of TREC rules and
greater ease in reading the remaining rules. There is no anticipated economic
cost to persons who are required to comply with the proposed repeal.
Comments on the proposal may be submitted to Mark A. Moseley, General Counsel,
Texas Real Estate Commission, P.O. Box 12188, Austin, Texas, 78711-2188.
The repeal is proposed under Texas Civil Statutes, Article 6573a,
§5(h), which authorize the Texas Real Estate Commission to make and enforce
all rules and regulations necessary for the performance of its duties.
The statute which is affected by this proposal is Texas Civil Statutes,
Article 6573a.
§535.4.Compensation Paid by Salesperson.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of the Secretary of State, on
April 16, 1999.
TRD-9902231
Mark A. Moseley
General Counsel
Texas Real Estate Commission
Earliest possible date of adoption: May 30, 1999
For further information, please call: (512) 465-3900
22 TAC §§535.11, 535.14, 535.18
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Real Estate Commission or in the Texas Register office, Room
245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Texas Real Estate Commission (TREC) proposes
the repeal of §535.11, concerning the definition of real estate, §535.14,
concerning offers to dispose of real estate, and §535.18, concerning
auctions. These repeals are proposed in connection with TREC's review of the
rules in Chapter 535 of the Texas Administrative Code and pending amendments
to the subchapter in which the repealed sections are located. Adoption of
the repeals would continue the process of reducing the volume of TREC's rules
wherever possible and making the rules easier for the public to use.
Section 535.11 lists a series of kinds of property which are not interests
in real property. Because the term "real estate" is defined in Texas Civil
Statutes, Article 6573a, (the Act), it is therefore unnecessary to devote
a section of TREC rules to listing property interests which are not within
the statutory definition. The repeal of §535.14 also would delete an
unnecessary section; conduct by a person acting in another state is being
addressed by a contemporaneous proposal to amend §535.1. The repeal of
§535.18 would delete an unnecessary provision which merely restates the
law.
Mark A. Moseley, General Counsel , has determined that for the first five-year
period the repeals are in effect there will be no fiscal implications for
state or local government as a result of enforcing or administering the repeals.
There is no anticipated impact on local or state employment as a result of
implementing the repeals.
Mr. Moseley also has determined that for each year of the first five years
the repeals as proposed are in effect the public benefit anticipated as a
result of enforcing the repeals will be a reduction in the number of TREC
rules and greater ease in reading the remaining rules. There is no anticipated
economic cost to persons who are required to comply with the proposed repeals.
Comments on the proposal may be submitted to Mark A. Moseley, General Counsel,
Texas Real Estate Commission, P.O. Box 12188, Austin, Texas, 78711-2188.
The repeals are proposed under Texas Civil Statutes, Article
6573a, §5(h), which authorize the Texas Real Estate Commission to make
and enforce all rules and regulations necessary for the performance of its
duties.
The statute which is affected by this proposal is Texas Civil Statutes,
Article 6573a.
§535.11.Real Estate Defined.
§535.14.Offers to Dispose of Real Estate.
§535.18.Auctions.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of the Secretary of State, on
April 16, 1999.
TRD-9902234
Mark A. Moseley
General Counsel
Texas Real Estate Commission
Earliest possible date of adoption: May 30, 1999
For further information, please call: (512) 463-3900
22 TAC §§535.12, 535.13, 535.15-535.17, 535.20, 535.21
The Texas Real Estate Commission (TREC) proposes amendments
to §535.12, concerning general definitions, §535.13, concerning
dispositions of real estate, §535.15, concerning negotiations, §535.16,
concerning listings, §535.17, concerning appraisals, §535.20, concerning
the procurement of prospects, and §535.21, concerning unimproved lot
sales and listing publications. The amendments would generally shorten the
sections by eliminating unnecessary provisions and combining other provisions.
These changes are proposed in connection with TREC's pending review of its
rules in Chapter 535 of the Texas Administrative Code. Adoption of the amendments
would continue the process of reducing the volume of TREC's rules wherever
possible and making the rules easier for the public to use.
The amendment to §535.12 would delete subsections which are unnecessary
because they merely restate the general definition of "real estate broker"
contained in Texas Civil Statutes, Article 6573a, (the Act) or address issues
which may be resolved by referring directly to the Act. The remaining language
would be revised to make it easier to read. The amendment to §535.13
would combine several subsections to clarify the activities for which a person
is required to be licensed and update the section to make it consistent with
recent Attorney General Letter Opinion Number 98-119, which permits unlicensed
employees of corporations and other business entities to act for their employers.
The amendment also clarifies that an entity may be considered to be an owner
if the entity either holds record title to the property or has an equitable
title or right acquired by contract with the record title holder and that
a corporation or limited liability company is required to be licensed as a
real estate broker if it or its employee receives or expects to receive a
valuable consideration from the record title holder for negotiating a sale
or other disposition of the property.
The amendment to §535.15 would delete provisions concerning activities
which may be performed by a broker's employees. The deleted provisions would
be combined and moved to §535.1 in connection with a contemporaneous
proposal to amend that section. The amendment to §535.16 would rewrite
the section for clarity and delete unnecessary provisions which merely restate
the law. A definition of the term "net listing" would be added to make the
section easier to understand. The amendment to §535.17 would rewrite
and shorten the section for clarity and delete subsections which merely restate
the law or which address issues which may be resolved by referring to the
Act.
The amendments to §535.20 and §535.21 would rewrite the sections
for clarity and would eliminate provisions which are repetitive or found elsewhere
In TREC rules.
Mark A. Moseley, General Counsel , has determined that for the first five-year
period the sections are in effect there will be no fiscal implications for
state or local government as a result of enforcing or administering the sections.
There is no anticipated impact on local or state employment as a result of
implementing the sections.
Mr. Moseley also has determined that for each year of the first five years
the sections as proposed are in effect the public benefit anticipated as a
result of enforcing the sections will be clarification of the activities for
which a real estate license is required and greater ease in reading TREC rules.
There is no anticipated economic cost to persons who are required to comply
with the proposed sections.
Comments on the proposal may be submitted to Mark A. Moseley, General Counsel,
Texas Real Estate Commission, P.O. Box 12188, Austin, Texas, 78711-2188.
The amendments are proposed under Texas Civil Statutes, Article
6573a, §5(h), which authorize the Texas Real Estate Commission to make
and enforce all rules and regulations necessary for the performance of its
duties.
The statute which is affected by this proposal is Texas Civil Statutes,
Article 6573a.
§535.12.General.
(a)
[
[(b)
Real estate sales commissions or fees
are not fixed by the Real Estate License Act or by these sections.]
[(c)
Licensure is not required for a person
to list the person's property with a licensee. Compensation to the owner for
granting the listing does not require licensure of the owner.]
[
A person may invest in real estate or contract
to purchase real estate and then sell it or offer to sell it without having
a real estate license.
A license
[
(b)
[
[(f)
The granting of real estate licensure
does not divest a person of previously held privileges.]
§535.13.Dispositions of Real Estate.
(a)
Acting as a principal, a person may purchase, sell,
lease, or sublease real estate for profit without being licensed as a real
estate broker or salesperson.
[
(b)
Unless otherwise exempted by Texas Civil Statutes, Article
6573a (the Act), a person who
manages real property or
collects
rentals for an owner of real property and for a valuable consideration must
be licensed if the person also rents or leases the property for the owner.
[(c)
Unless otherwise exempted by this Act,
those who hold themselves out to the general public as being in the property
management business must possess real estate licensure. Those who manage real
property for others and for compensation must be licensed.]
(c)
[
[(e)
The Real Estate License Act does not
require the licensing of a mobile home park.]
(d)
[
(e)
[
(f)
[
(1)
does not own the property or lease the property from its
owner;
(2)
receives a valuable consideration; and
(3)
is not exempted from the requirement of a license
by the Act, §3.
§535.15.Negotiations.
(a)
Locating and bringing together a buyer and seller [
(b)
A real estate license
[
[(c)
Real estate licensure is required for
a person to act as an agent in the selling or exchanging of either commercial
or residential properties]
[(d)
Showing real property for sale, exchange,
purchase, rent or lease is an act of a broker for which a real estate license
is required if a person shows the property for another person and for a fee,
commission, or other valuable consideration, or with the intention or in the
expectation or on the promise of receiving or collecting a fee, commission,
or other valuable consideration.]
[(e)
Real estate licensure is required of
rental agents doing all solicitation by telephone unless such agents are employees
of the owner of the property concerned.]
[(f)
A clerical employee of a real estate
broker is not required to be licensed if such employee engages in no solicitation
work and does not hold himself or herself out as authorized to act as a real
estate agent.]
[(g)
Answering of the telephone and acts of
a secretarial nature done in a broker's office do not require real estate
licensure.]
[(h)
A person can be hired by a broker to
act as a hostess, attendant or custodian at and of homes which a broker offers
for sale without coming within the purview of The Real Estate License Act,
so long as such person does not engage in activities defined as acts of a
broker or salesperson which require licensure.]
§535.16.Listings.
(a)
Trade associations or other organizations which
[
[(b)
Licensure would be required of a trade
association or organization if it or its listing service lists real property
and expects to receive compensation, either directly or indirectly, as a result
of the listings.]
(b)
[
(c)
[
§535.17.Appraisals.
(a)
A salesperson may make, sign, and present real estate appraisals
for the salesperson's sponsoring broker, but the
salesperson must submit
appraisals [
[(b)
Although a real estate license is required
before a party may engage in the appraisal of real estate, a real estate license
itself is not an appraiser's license.]
(b)
[
[(d)
Real estate licensure is not required
for one to testify as to the value of real property, but if in preparing to
testify, the person actually does appraise the property for another person
and for compensation, licensure would be required.]
[(e)
Real estate licensure is not required
for an employee of an investment firm performing appraisals in the course
of the employee's employment.]
[(f)
A trade association or organization is
required to be licensed as a real estate broker when it offers to appraise
or actually appraises real estate for others and for compensation.]
[(g)
Real estate licensure is not required
for one to estimate the cost of repairing or replacing damaged portions of
real property.]
[(h)
The selling or appraising of household
items or antiques is not activity requiring licensure under the Real Estate
License Act.]
[(i)
A Texas real estate broker's license
entitles one to appraise real estate in Texas for another person and for compensation.]
(c)
[
(d)
[
(e)
[
§535.20.Procuring Prospects.
(a)
This section prohibits a person not licensed as a Texas
real estate broker or salesperson from receiving a [
[(b)
Real estate licensure is required for
one to procure or assist in the procuring of prospective tenants of real property
for compensation in any form, including but not limited to rent bonuses, discounts,
gifts, or other things of value.]
[(c)
The referral of a prospective purchaser,
for compensation, is an act requiring real estate licensure.]
(b)
[
(1)
The person is engaged in the business of selling goods
or services to the public.
(2)
The person sells goods or services to a real estate
licensee who intends to offer the goods or services as an inducement to potential
buyers, sellers, landlords or tenants.
(3)
After selling the goods or services to the real estate
licensee, the person refers the person's customers to the real estate licensee.
(4)
The payment to the person for the goods or services
is not contingent upon the consummation of a real estate transaction by the
person's customers.
§535.21.Unimproved Lot Sales; Listing Publications.
(a)
A person must be licensed as a real estate broker
or salesperson to
[
[(b)
Real estate licensure is required to
authorize a marketing company or its employees to act as the real estate agent
for another entity.]
(b)
[
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on
April 16, 1999.
TRD-9902230
Mark A. Moseley
General Counsel
Texas Real Estate Commission
Earliest possible date of adoption: May 30, 1999
For further information, please call: (512) 465-3900
22 TAC §§535.31-535.35
The Texas Real Estate Commission (TREC) proposes amendments
to §535.31, concerning exempt attorneys at law, §535.32, concerning
exempt attorneys in fact, §535.33, concerning exempt public officials,
§535.34, concerning exempt salespersons employed by an owner, and §535.35,
concerning exempt employees renting or leasing their employer's real estate.
The amendments would generally shorten the sections by eliminating unnecessary
provisions and combining other provisions. These changes are proposed in connection
with TREC's pending review of its rules in Chapter 535 of the Texas Administrative
Code. Adoption of the amendments would continue the process of reducing the
volume of TREC's rules wherever possible and making the rules easier for the
public to use.
The amendment to §535.31 would restate the exemption for licensed
attorneys and combine several subsections to make the section easier to read.
Provisions relating to the attorney's client and non-client relationships,
State Bar of Texas rules and membership in trade associations would be deleted
as unnecessary. The amendment to §535.32 would make nonsubstantive changes
to make the section concerning the exemption for attorneys-in-fact easier
to read. The amendment to §535.33 would restate the exemption for public
officials and delete subsections which merely provide examples of public officials
exempt from the requirement of holding a license or registration issued by
TREC. The amendment to §535.34 would delete unnecessary provisions which
merely provide examples of relationships between a builder and other persons
who are not entitled to claim an exemption from licensing requirements. The
amendment to §535.35 would make nonsubstantive changes and delete a subsection
that merely repeats the statutory exemption for employees renting or leasing
their employer's real estate.
Mark A. Moseley, general counsel, has determined that for the first five-year
period the sections are in effect there will be no fiscal implications for
state or local government as a result of enforcing or administering the sections.
There is no anticipated impact on local or state employment as a result of
implementing the sections.
Mr. Moseley also has determined that for each year of the first five years
the sections as proposed are in effect the public benefit anticipated as a
result of enforcing the sections will be a reduction in the number of TREC
rules and greater ease in reading the remaining rules. There is no anticipated
economic cost to persons who are required to comply with the proposed sections.
Comments on the proposal may be submitted to Mark A. Moseley, General Counsel,
Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188.
The amendments are proposed under Texas Civil Statutes, Article
6573a, §5(h), which authorize the Texas Real Estate Commission to make
and enforce all rules and regulations necessary for the performance of its
duties.
The statute which is affected by this proposal is Texas Civil Statutes,
Article 6573a.
§535.31.Attorneys at Law.
[
A licensed attorney is
[
[
Licensed attorneys are exempt
from the requirements of The Real Estate License Act, but they are not eligible
to qualify as designated agents for a corporation which is licensed as a broker
unless such attorneys are otherwise qualified in accordance with the requirements
of the Act.]
[
Attorneys who desire real
estate licensure must follow the same steps which would be necessary if they
were not attorneys.]
[
A Texas-licensed attorney
is exempted from real estate licensure requirements whether dealing with clients
or with non-clients.]
[
An attorney should make his
or her own determination regarding whether acting as a real estate agent on
the basis of a law license may violate the State Bar's Code of Professional
Responsibility.]
[
This provision is not a waiver
of the standards of eligibility and qualification elsewhere established in
this Act. Law school credits may fulfill educational requirements.]
[
This Act does not govern an
attorney's eligibility for trade association or organization membership. Whether
an attorney who is not licensed as a real estate broker is eligible for such
membership would be determined by the association's or organization's requirements
or restrictions. ]
§535.32.Attorneys in Fact.
A person holding a
[
§535.33.Public Officials.
[
Public officials and employees
of governmental
or quasi-governmental units
are exempted from the requirement of
being licensed as a
real estate
broker or salesperson
[
[
A person may serve on a tax
equalization board for a city or a school district for compensation without
being required to have a real estate license.]
[
One appraising property for
the county under an order of the county commissioner's court is exempted under
this section.]
[
An organization or its employee
which makes surveys for various taxing authorities for the purpose of establishing
tax values would be considered an arm of the taxing authority and exempted
under this section.]
[
Licensure is not required
of one employed by a governmental unit to evaluate property for tax purposes.]
[
A salesperson making appraisals
for the Veterans Administration must do so through the salesperson's sponsoring
broker.]
§535.34.Salespersons Employed by an Owner of Land and Structures Erected by the Owner.
[
"Salesperson employed by an owner" means a
person employed and directly compensated by an owner.
[
"Salesperson employed by an
owner" does not include:]
[
a real estate licensee who lists, orally or
in writing, an owner's property for sale;]
[
any person employed by, associated with,
cooperating with, or sponsored by a real estate licensee who lists, orally
or in writing, an owner's property for sale; or]
[
any person who, having no pre-existing
employment or listing agreement with an owner, sells or attempts to sell an
owner's property.]
§535.35.Employees Renting and Leasing Employer's Real Estate.
[
Withholding
[
[
Employees of an owner of real
property may negotiate with respect to renting or leasing the owner's properties
without obtaining real estate licensure.]
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April
16, 1999.
TRD-9902229
Mark A. Moseley
General Counsel
Texas Real Estate Commission
Earliest possible date of adoption: May 30, 1999
For further information, please call: (512) 465-3900
22 TAC §535.41, §535.42
The Texas Real Estate Commission (TREC) proposes amendments
to §535.41, concerning procedures for meetings of the members of the
commission, and §535.42, concerning TREC's jurisdiction and authority.
The amendment to §535.41 would make nonsubstantive changes to make the
section easier to read and consistent in style with TREC's other rules. The
amendment to §535.42 would delete unnecessary language, combine provisions
and clarify the authority of the staff administrative law judge to order issuance
of a probationary license. Adoption of the amendments would continue the process
of reducing the volume of TREC's rules wherever possible and making the rules
easier for the public to use.
Mark A. Moseley, general counsel, has determined that for the first five-year
period the sections are in effect there will be no fiscal implications for
state or local government as a result of enforcing or administering the sections.
There is no anticipated impact on local or state employment as a result of
implementing the sections.
Mr. Moseley also has determined that for each year of the first five years
the sections as proposed are in effect the public benefit anticipated as a
result of enforcing the sections will be the elimination of unnecessary rules
and clarification of the authority of the TREC staff. There is no anticipated
economic cost to persons who are required to comply with the proposed sections.
Comments on the proposal may be submitted to Mark A. Moseley, General Counsel,
Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188.
The amendments are proposed under Texas Civil Statutes, Article
6573a, §5(h), which authorize the Texas Real Estate Commission to make
and enforce all rules and regulations necessary for the performance of its
duties.
The statute which is affected by this proposal is Texas Civil Statutes,
Article 6573a.
§535.41.Procedures.
(a)
Meetings.
(1)
(No change.)
(2)
Meetings
will
[
(3)
Meetings
must
[
(b)
Quorum. Five members
constitute
[
(c)
Officers.
(1)
Officers of the commission [
(2)
(No change.)
(d)
Order of business.
(1)
With the exception of proceedings in contested cases, meetings
must
[
(2)
Proceedings in contested cases
will
[
§535.42.Jurisdiction and Authority.
(a)
[
[
The Real Estate License Act
does not require the registration of subdivisions offered for sale or other
disposition within Texas.]
[
The commission does not mediate disputes
between or among licensees concerning entitlement to sales commissions
or recommend individual licensees to the public
.
[
The commission does not recommend
individual licensees to the public.]
(b)
[
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April
16, 1999.
TRD-9902228
Mark A. Moseley
General Counsel
Texas Real Estate Commission
Earliest possible date of adoption: May 30, 1999
For further information, please call: (512) 465-3900
22 TAC §§535.51-535.53
The Texas Real Estate Commission (TREC) proposes amendments
to §535.51, concerning general requirements for a real estate license,
§535.52, concerning individual applicants, and §535.53, concerning
applications by corporations and limited liability companies. The amendments
would revise the sections to reflect more accurately the procedures TREC follows
in processing applications, and shorten the sections by combining their provisions.
Nonsubstantive changes also would make the sections easier to read. These
changes are proposed in connection with TREC's pending review of its rules
in Chapter 535 of the Texas Administrative Code. Adoption of the amendments
would continue the process of reducing the volume of TREC's rules wherever
possible and making the rules easier for the public to use.
The amendment to §535.51 would clarify that applicants must file the
application for a license on the form adopted by the commission for that purpose
and that applications will be returned to the applicant if requisite education
or experience requirements have not been satisfied. The amendment to §535.52
generally restates TREC's statutory authority to disapprove an application
at any time prior to the issuance of a license if the applicant fails to satisfy
TREC as to the person's honesty, trustworthiness and integrity. The amendment
to §535.53 combines and shortens the provisions relating to the licensing
of corporations and limited liability companies. A provision relating to the
authority of an unlicensed corporate officer would be deleted in §535.53,
because that subject is being addressed in a proposed amendment to §535.13.
Mark A. Moseley, general counsel, has determined that for the first five-year
period the sections are in effect there will be no fiscal implications for
state or local government as a result of enforcing or administering the sections.
There is no anticipated impact on local or state employment as a result of
implementing the sections.
Mr. Moseley also has determined that for each year of the first five years
the sections as proposed are in effect the public benefit anticipated as a
result of enforcing the sections will be clarification of the licensing process
for applicants. There is no anticipated economic cost to persons who are required
to comply with the proposed sections.
Comments on the proposal may be submitted to Mark A. Moseley, General Counsel,
Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188.
The amendments are proposed under Texas Civil Statutes, Article
6573a, §5(h), which authorize the Texas Real Estate Commission to make
and enforce all rules and regulations necessary for the performance of its
duties.
The statute which is affected by this proposal is Texas Civil Statutes,
Article 6573a.
§535.51.General Requirements.
(a)
A person who wishes to be licensed by the commission
must file an application for the license on the form adopted by the commission
for that purpose.
[
(b)
The commission shall return applications
[
(1)-(5)
(No change).
(6)
education or experience requirements have not
been satisfied
[
(c)-(d)
(No change.)
§535.52.Individuals.
(a)
The commission may disapprove an application if the
applicant fails to satisfy the commission
[
(b)
(No change.)
(c)
The fact that an individual has had disabilities of minority
removed does not affect the requirement that an applicant be 18 years of age
to be eligible for
a license
[
[
The requirement that the Commission
be satisfied as to the honesty, trustworthiness and integrity of the applicant
will not necessarily be considered until all other requirements have been
met, including the passing of the examination.]
§535.53.Corporations and Limited Liability Companies.
(a)
For the purposes of qualifying for, maintaining, or
renewing a license, a corporation or limited liability company must designate
one person holding an active Texas real estate broker license to act for it.
The corporation or limited liability company may not act as a broker during
any period in which it has not designated a person to act for it who meets
the requirements of Texas Civil Statutes, Article 6573a (the Act). A broker
may not act as a designated person at any time while the broker's license
is inactive, expired, suspended or revoked.
[
[
There is only one designated
person for each broker license issued to a corporation or limited liability
company.]
(b)
[
[
An individual who is an officer
of a corporation or the manager of a limited liability company and is acting
in behalf of the corporation or limited liability company is not required
to have a license in order to sell real estate owned by the corporation or
limited liability company, provided the individual receives no special compensation
therefor.]
[
If a corporation or limited
liability company is to be licensed, one of its officers or managers must
be licensed as an active Texas real estate broker.]
[
A corporation or limited liability
company formed under the laws of a state other than Texas may be accepted
as a Texas resident for purposes of this section if it is qualified to do
business in Texas; its officers or managers, its principal place of business
and all of its assets are located in Texas; and all of its officers and directors
or managers and members are Texas residents.]
[
An individual whose real estate
broker license has been suspended or revoked may not, during the period of
such suspension or revocation, act as the designated person for a corporation
or limited liability company licensed as a real estate broker.]
[
A corporation or limited liability
company licensed as a real estate broker must designate another of its officers
to act for it during any period of time in which its designated person ceases
to be an officer or manager of the corporation or limited liability company
or in which the individual real estate broker license of its designated person
has been suspended or revoked. A corporation or limited liability company
is not authorized to exercise its licensure privileges until another of its
officers or managers has been designated to act for it during any such period.]
[
A corporation or limited liability
company may not renew its license unless the person designated by it is licensed
as an active Texas real estate broker.]
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April
16, 1999.
TRD-9902233
Mark A. Moseley
General Counsel
Texas Real Estate Commission
Earliest possible date of adoption: May 30, 1999
For further information, please call: (512) 465-3900
Chapter 663.
Standards of Responsibility and Rules of Conduct
Subchapter A. Ethical Standards
does not
]
issue
a
provisional
license
[
licenses at this time
]
upon approval of the executive director to any applicant who
submits proof of a current engineering license in another National Council
of Examiners for Engineering and Surveying (NCEES) jurisdiction, provides
a current NCEES record certifying status as a Model Law Engineer, submits
a completed application form, and has not been sanctioned for a violation
of any law or rule in the practice of engineering in any jurisdiction. The
provisional license shall be non-renewable and valid for a period of one year
from the date of issuance. A provisional license holder shall be subject to
all laws and rules of the board and shall enjoy all benefits of licensure
.
Part XXIII.
Texas Real Estate Commission
The Real Estate License Act requires licensure of persons negotiating within
this state for the sale of real estate for another person and for compensation.
The situs of the real estate or residence of its owner does not control.
]
(f)
] Unless otherwise exempted
by
the
[
this
] Act, a person must be licensed as [
either
] a real estate broker or salesperson [
in order
] to
show a broker's listings, [
or
] solicit listings of real property
or perform any act defined as that of a real estate broker by the Act. An
unlicensed person may be hired by a broker to act as a host or hostess at
a property being offered for sale by the broker, provided the unlicensed person
engages in no activity for which a license is required.
(g)
]
The employees, agents
or associates of a licensed broker, including a corporation or limited liability
company licensed as a broker, must be licensed as real estate brokers or salespersons
if they
[
Real estate licensure is required of a real estate broker's
employees, agents, or associates who
] direct or supervise other
persons in the performance of
[
employees, agents, or associates
while the other employees, agents, or associates are performing
] acts
for which
a license
[
licensure
] is required. [
Provided, however, that
]
A license
[
licensure
]
is not required for the performance of
secretarial, clerical, or
administrative tasks
, such as training personnel, performing duties
generally associated with office administration and personnel matters. Unlicensed
employees, agents, or associates may not solicit business for the broker or
hold themselves out as authorized to act as real estate brokers or salespersons.
[
. "Administrative tasks" include, but are not limited to, the
following:
]
(h)
]
As used in this chapter,
the terms "property" and "real property" have the same meaning as "real estate"
as that term is defined in the Act.
[
Real estate licensure is not
required of a partnership acting as a real estate broker in Texas. A partner
or non-partner employee who acts as a real estate agent in the partnership's
name must be licensed as a real estate broker or salesperson.
]
Other than as contemplated by this section, The Real
License Act does not regulate the working agreements between or among licensees.
]
(c)
]
may absent himself or herself
as the broker chooses
].
(f)
] A real estate
broker
acting as an
agent owes the very highest fiduciary obligation to the
agent's principal and is obliged to convey to the principal all information
of which the agent has knowledge and which may affect the principal's decision.
A broker is obligated
[
It is the broker's obligation
] under
a listing contract to negotiate the best possible transaction for the principal,
the person the broker has agreed to represent.
(h)
] A broker is responsible for
the proper handling of escrow monies placed with the broker,
although
the broker may authorize other persons to sign checks for the broker.
[
but whom the broker designates to sign checks is the broker's internal
business and not regulated by this Act
].
Accepted by ] Salesperson.
A salesperson is not permitted to receive compensation for acts as a licensed
real estate salesperson, except through the salesperson's sponsoring broker
or through the broker under whom the salesperson was licensed when he or she
earned the right to compensation, although the broker need not actually receive
the money and pay it to the salesperson. Payments not made by or through the
broker must be made with the broker's knowledge and consent.
]
Subchapter B. Definitions
The method of compensation, whether commission, salary,
or otherwise, is not the sole criterion for requiring a real estate license.
One who acts as a real estate agent but charges a set fee instead of taking
a commission is still required to be licensed.
]
(d)
]
Texas real estate licensure
] is not required
for a person to buy or sell
[
of one
who buys and sells
] real property only for the person's own account.
(e)
]
A person
[
One
] who owns property jointly [
with another
] may sell and
convey title to his or her interest in the property, but the person must be
licensed to act for compensation as an agent for the other owner unless otherwise
exempted
by Texas Civil Statutes, Article 6573a, (the Act)
[
from the requirement of licensure
].
Subleasing may be done without licensure
for the sublessor's own profit but not for compensation to be paid by another
unless the recipient is otherwise exempted from the requirement of licensure.
]
(d)
]
A person must be licensed
as a real estate broker to operate
[
Real estate broker licensure
is required for the operation of
] a rental agency. This section does
not prohibit employment of an answering service or unlicensed clerical or
secretarial employees identified to callers as such to confirm information
concerning the size, price, and terms of property advertised.
(f)
]
A real estate license
[
Real estate licensure
] is
not
required for
an individual employed
[
a person hired
] by a corporation
or other business entity
for the purpose of
buying real property
for the entity or
selling real property owned by the
entity
[
corporation
].
An entity is considered to be an owner if it
holds record title to the property or has an equitable title or right acquired
by contract with the record title holder. A corporation or limited liability
company is considered to be acting as a broker and is required to be licensed
under the Act if it or its employee receives, or expects to receive, a valuable
consideration from the record title holder for negotiating a sale or other
disposition of the property.
(g)
]
A real estate license
[
Real estate licensure
] is required of a subsidiary corporation,
which, for compensation, negotiates in Texas for the sale of its parent corporation's
real property.
(h)
] Arranging for a person to
occupy a vacant residential property is an act requiring a real estate license
if the actor:
through correspondence, or telephone
] constitutes negotiation if done
from within the borders of Texas.
Real estate licensure
] is required for
a person to solicit listings or
[
one
] to negotiate in Texas for listings.
A corporation formed so as to unite those who engaged in the real estate
business for the purpose of exerting effectively a beneficial influence upon
the real estate business and to
] provide a computerized listing service
for
their
[
its
] members, but which
do
[
does
] not receive compensation
when the real estate is sold
[
for the sale of real estate
] would not be required to be licensed
under
Texas Civil Statutes, Article 6573a (the Act )
[
this
Act
].
(c)
]
A "net listing" is a
listing agreement in which the broker's commission is the difference ("net")
between the sales proceeds and an amount desired by the owner of the real
property.
A broker
may not
[
should
] take net listings
unless
[
only when
] the principal
requires
[
insists upon
] a net listing and [
when
] the principal appears
to be familiar with current market values of real property. When a broker
accepts a listing, the broker enters into a fiduciary relationship with the
principal, whereby the broker is obligated to make diligent efforts to obtain
the best price possible for the principal. The use of a net listing places
an upper limit on the principal's expectancy and places the broker's interest
above the principal's interest with reference to obtaining the best possible
price.
If a net listing is used, a broker should modify the listing agreement
[
Net listings should be qualified
] so as to assure the principal
of not less than the principal's desired price and to limit the broker to
a specified maximum commission.
(d)
] A real estate licensee is
obligated to advise a property owner as to the licensee's opinion of the market
value of a property when negotiating a listing or offering to purchase the
property for the licensee's own account as a result of contact made while
acting as a real estate agent.
must be submitted
] in the broker's name and
the broker is responsible for the appraisals.
[
are the broker's
responsibility. A real estate salesperson may not appraise real property for
others and for compensation without such activity being conducted through
the salesperson's sponsoring broker.
]
(c)
]
Texas Civil Statutes,
Article 6573a (the Act) does not apply to appraisals performed by the employees
of a financial institution or investment firm in connection with a contemplated
loan or investment by their employers.
[
This section does not cover
a situation wherein a savings and loan association, mortgage bank, commercial
bank, credit union, or any other financial institution, or its employees,
in contemplation of making a loan, appraises a piece of property and charges
and receives a fee for its services. If a financial institution or its employees
appraise property for a fee and not in contemplation of making a loan based
on the appraisal, the activity would be considered within the coverage of
this section and a license would be required.
]
(j)
] Except as provided by this
section, appraisals of real property performed in this state by Texas real
estate licensees
must
[
shall
] be conducted in accordance
with the Uniform Standards of Professional Appraisal Practice of the Appraisal
Foundation in effect at the time the appraisal is performed. A real estate
licensee may[
, for a separate fee,
] provide an opinion of value
or comparative market analysis which does not conform with the Uniform Standards
of Professional Appraisal Practice of the Appraisal Foundation, if the licensee
provides the person for whom the opinion or analysis is prepared with a written
statement containing the following language: "THIS IS AN OPINION OF VALUE
OR COMPARATIVE MARKET ANALYSIS AND SHOULD NOT BE CONSIDERED AN APPRAISAL.
In making any decision that relies upon my work, you should know that I have
not followed the guidelines for development of an appraisal or analysis contained
in the Uniform Standards of Professional Appraisal Practice of the Appraisal
Foundation."
(k)
] The statement required by
subsection
(c)
[
(j)
] of this section must be made part
of any written opinion or analysis report and must be reproduced verbatim.
(l)
] The exception allowed by subsection
(c)
[
(j)
] of this section does not apply to a transaction
in which the Resolution Trust Corporation or a federal financial institutions
regulatory agency has required compliance with the Uniform Standards of Professional
Appraisal Practice of the Appraisal Foundation.
referral
] fee
,
including but not limited to rent bonuses, discounts, gifts or other
things of value
from another
person for a referral of a prospective
buyer, seller, landlord or tenant
concerning the sale, exchange, purchase,
rental or lease of real estate.
(d)
] A person is not required to
be licensed as a real estate broker or salesperson if all of the following
conditions are met.
Real estate licensure is required of those who
] advertise for others regarding real property, accept calls received
in response to such advertisements, and refer the callers to the owner of
the property.
(c)
] A person may contract to advertise
real estate for purchase, sale, lease or rental in a publication without being
licensed under Texas Civil Statutes, Article 6573a, (the Act), unless payment
of any fee or consideration the person receives is contingent upon the purchase,
sale, lease, or rental of the property advertised in the publication. For
the purposes of this section an advance fee is a contingent fee if the person
is obligated to return the fee if the property is not purchased, sold, leased
or rented.
This
[
The
] section shall be narrowly construed
to effectuate the purposes for which this section was adopted.
Subchapter C. Exemptions to Requirements of Licensure
(a)
]
Licensed
attorneys are
] exempt from the requirements of
Texas Civil Statutes,
Article 6573a, (the Act)
[
the Real Estate License Act
] but
cannot sponsor real estate salespersons [
for licensure
]
or
serve as the designated officer or manager of a licensed corporation or limited
liability company
unless
the attorney is
[
such attorneys
are
] also licensed as a real estate
broker
[
brokers
].
This provision is not a waiver of the standards of eligibility
and qualification elsewhere established in the Act.
(b)
(c)
(d)
(e)
(f)
(g)
A
] power of attorney which
is recorded in the county in which the particular real property is located
and which specifically describes the real property to be sold
may
[
authorizes a person to
] act as a real estate agent for the owner
of such property without
being licensed as a real estate broker or salesperson,
provided
the [
necessity of real estate licensure. An unlicensed
] person
does not
[
cannot
] use
powers of
attorney
[
the power of attorney method
] to engage in the
real estate agency business.
(a)
]
licensure
] while performing their
official
duties [
as such
].
(b)
(c)
(d)
(e)
(f)
(a)
]
(b)
(1)
(2)
(3)
(a)
]
An owner-employer's
act of withholding
] income and F.I.C.A. taxes from wages paid another
person is considered
[
would be
] evidence of employment.
(b)
Subchapter D. The Commission
shall
] be held
at such places as the commission deems proper.
shall
] be called
by the chairperson on the chairperson's own motion or upon the written request
of five members.
shall
constitute
] a quorum.
shall
] consist of
a chairperson, vice-chairperson and secretary.
shall
] be conducted in accordance with Roberts Rule
of Order.
shall
] be conducted in accordance with the Administrative Procedure
Act, Texas Government Code, §§2001.001 et seq and Chapter 533 of
this title (relating to Practice and Procedure).
The commission can advise with reference to the laws
it administers but questions regarding other laws should be directed to the
appropriate agency or to a private attorney.
]
(b)
(c)
]
(d)
(e)
] An employee of the commission
specifically authorized by it pursuant to
Texas Civil Statutes, Article
6573a, (the Act)
[
the Act
], §5(t), to conduct hearings
and render final decisions in contested cases
may order issuance of a
probationary license under §535.94 of this title (relating to Hearing
on Application Disapproval: Probationary Licenses) and
may suspend or
revoke a license or reprimand or place on probation a licensee for a violation
of the Act or a rule of the commission.
Subchapter E. Requirements for Licensure
Only a licensed broker may apply as sponsoring
broker for licensure of a real estate salesperson.
]
Applications are returned
] to applicants or the sponsoring broker (in
the case of an application for an active salesperson license) when it has
been determined that the application [
is not acceptable because, on its
face, it
] fails to comply with one of the following requirements[
, based upon The Real Estate License Act, §6 and §7
].
on broker applications, any requisite active experience
or education is not established
].
Civil judgments, criminal
convictions or bankruptcy proceedings would not in themselves bar an applicant
from obtaining real estate licensure, although the facts on which such legal
action was based may cause disapproval of the application if the circumstances
fail to satisfy the commission
] as to the honesty, trustworthiness,
or integrity of the applicant.
licensure
].
(d)
An individual must
hold an active Texas real estate broker license to act as the designated person
for a corporation or limited liability company licensed as a Texas real estate
broker.
]
(b)
(c)
]
Section 6 of the Act
[
This section
] applies only to corporations or limited liability
companies which are created under the laws of this state
, provided, however,
that a corporation or limited liability company formed under the laws of a
state other than Texas will be considered to be a Texas resident for purposes
of this section if it is qualified to do business in Texas; its officers or
managers, its principal place of business and all of its assets are located
in Texas; and all of its officers and directors or managers and members are
Texas residents
.
(d)
(e)
(f)
(g)
(h)
(i)
Part XXIX.
Texas Board of Professional Land Surveying