For further information, please call: (512) 305-7700

22 TAC §461.31

The Texas State Board of Examiners of Psychologists proposes an amendment to §461.31, concerning Abolition Date for Psychological Associate Advisory Committee Set for September 1, 2005; Board Review of Psychological Associate Advisory Committee. The amendment is being proposed in order to ensure compliance with the statutory mandate of Texas Government Code, §§2110.001-2110.008, by stating the purpose and describing the tasks of the Committee and by clarifying the manner in which the Committee reports to the Agency.

Ms. Lee also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be to ensure that the Psychological Associate Advisory Committee has a clearly stated purpose and definitive tasks as required by §2110.005, and to ensure that all workings of the Committee are presented to the agency in a timely manner. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the rule as proposed.

Comments on the proposal may be submitted by April 30, 1999, to Janice C. Alvarez, Texas State Board of Examiners of Psychologists, 333 Guadalupe, Suite 2-450, Austin, Texas 78701, (512) 305-7700.

The amendment is proposed under Texas Civil Statutes, Article 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it.

The proposed amendment does not affect other statutes, articles, or codes.

Psychological Associate Advisory Committee (the PAAC) The PAAC is an Advisory Commitee to the Board. In Compliance With Texas Government Code, Title 10, Chapter 2110, Pertaining to State Agency Advisory Committees, the Following Provisions are Established by Rule. [ ~~Abolition Date for Psychological Associate Advisory Committee Set for September 1, 2005; Board Review of Psychological Associate Advisory Committee.~~ ]

The PAAC's purpose is to develop and recommend for Board consideration rules pertaining to psychological associates, as provided in 19A of the Act.

The PAAC has seven tasks which are demarcated in 19A(l) of the Act.

The PAAC reports directly to the Board. The PAAC shall designate one of its members to present a recommended rule, the PAAC's rationale for the rule, and any supporting materials, to the Board either orally or in writing at a regularly scheduled meeting of the Board.

In conjunction with the agency's budgeting process, [ ~~The abolition date for the Psychological Associate Advisory Committee is hereby set for September 1, 2005. The~~ ] the Board shall annually evaluate [ ~~review~~ ] the PAAC on measures required by Chapter 2110.006 of the Government Code [ Committee's work, the Committee's usefulness and the costs related to the Committee's existence, including the cost of agency staff time spent in support of the Committee's activities in conjunction with the Board's budgeting process ].

The abolition date for the PAAC is set for September 1, 2005.

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 February 25, 1999.

TRD-9901182

For further information, please call: (512) 305-7700

Chapter 462. Complaints and Enforcement

22 TAC §§462.1-462.14

The Texas State Board of Examiners of Psychologists proposes new §§462.1-462.14, concerning complaints and enforcement. The new rules are being proposed in order to reorganize and clarify the rules of the Board.

Sherry L. Lee, Executive Director, 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 rules.

Ms. Lee also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be to make the rules easier for licensees and the general public to follow and understand. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the sections as proposed.

Comments on the proposals may be submitted by April 30, 1999, to Janice C. Alvarez, Texas State Board of Examiners of Psychologists, 333 Guadalupe, Suite 2-450, Austin, Texas 78701, (512) 305-7700.

The new rules are proposed under Texas Civil Statutes, Article 4512c, which provides the Texas State Board of Examiners of Psychologists with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it.

The proposed new rules do not affect other statutes, articles, or codes.

§462.1.Timeliness of Complaints.

A complaint is timely filed if it is received by the Board, in proper form, within five years of the date of the termination of professional services. A complaint alleging sexual misconduct, as defined by the Board rules, by a licensee or alleging the infliction of physical harm upon a client or patient by a licensee is timely filed if received within ten years of the occurrence of the allegations.

§462.2.Complaint Procedure Notification.

Methods of Notification. The Board and its licensees shall provide notification to the public that complaints can be filed with the Board by publishing the Board's name, its mailing address, and telephone number by the following method:

Displaying a sign in a prominent location, on a wall in all rooms where psychological services are conducted in a position that is reasonably likely to be viewed by individuals occupying the room, on paper of no less than 8« inches by 11 inches in size, with the Board approved notification statement printed in black. The Board approved notification statement must be printed in both English and Spanish.

The Board approved English notification statement reads as follows: "Be it known that the Texas State Board of Examiners of Psychologists receives questions and complaints regarding the practice of psychology. For assistance please contact: Texas State Board of Examiners of Psychologists, 333 Guadalupe, Suite 2-450, Austin, Texas 78701, (512) 305-7700, or 800-821-3205."

The Board approved Spanish notification statement reads as follows: "Se desea informar que la ComisiAn Estatal Examinadora de PsicAlogos de Texas recibe toda clase de consultas y quejas sobre el ejercicio profesional de la psicologAa en el Estado de Texas. Si usted necesita de este servicio, comunAquese con: Texas State Board of Examiners of Psychologists, 333 Guadalupe, Suite 2-450, Austin, Texas 78701, (512) 305-7700 o 800-821-3205."

The Board approved notification statement is provided to licensees at the time of licensure. Additional Board approved notification statements may be obtained directly from the Board's office at any time.

In addition to the Board approved notification sign, licensees may also notify consumers by the following methods:

on each registration form, application, or written contract for services of a licensee; or

in a bill for services provided by a licensee.

§462.3.Standardized Complaint Form.

All complaints filed against a licensee must be submitted to the Board on the Board approved standardized complaint form. The Board approved complaint form can be obtained free of charge from the Board's office or downloaded from the Board's web site.

The Board shall make available to each person who wishes to file a complaint: the Board approved complaint form, release of information forms, Rules and Regulations of the Board.

The complaint form must be physically delivered to the Board office in person or by mail service to be considered filed. Fax transmittal and or E-mail do not constitute physical delivery.

All required release forms must be signed, witnessed and returned to the Board, along with the complaint form, before a complaint can be processed.

§462.4.Complaint Investigation.

The Board has established a priority rating system to distinguish between categories of complaints. The priority rating system is as follows:

cases involving imminent physical harm to the public;

cases involving sexual misconduct on the part of a licensee;

cases involving current applicants for licensure;

cases involving other administrative violations of Board Rules or the Act;

(5)

cases involving covert or other undercover investigations in conjunction with any of the above priorities.

The Investigation Division shall dispose of all complaints in a timely manner. A schedule shall be established for conducting each phase of a complaint that is under the control of the Board not later than the 30th day after the date the complaint is received by the Board. The schedule shall be kept in the information file of the complaint, and all parties shall be notified of the projected time requirements for pursuing the complaint. A change in the schedule must be noted in the complaint information file, and all parties to the complaint must be notified in writing not later than the seventh day after the date the change is made.

The Board will dismiss complaints at a regularly scheduled Board Meeting. Any person who files a complaint will be notified by letter of Board action to dismiss the complaint.

The services of a private investigator shall be retained only in the event that staff investigator positions are vacant or inadequate to provide essential investigative services. The services of a private investigative agency shall be obtained in accordance with the procurement procedures of the General Services Commission.

§462.5.Complaint Disposition.

A preliminary investigation shall be conducted to determine if the Board has jurisdiction over the complaint and to determine the nature of the allegations. The complainant will be provided the opportunity to explain the allegations made in the complaint.

A review will be conducted after the preliminary investigation to determine if the complaint states an allegation which, if true, would constitute a violation of the Board's Act and rules.

Complaints that do not state a violation of the Board's Act or rules shall be returned to the complainant. If the complaint alleges a violation of another agency's Act or rules, the complaint shall be referred to the appropriate agency.

Complaints that state a violation of the Board's Act and rules shall be investigated by an investigator assigned by the Manager of the Investigation Division.

Following completion of the investigation, an investigation report shall be drafted. This report shall include a recommendation as to whether the investigation has produced sufficient evidence to establish probable cause that a violation of the Board's Act and rules has occurred.

The Investigation Division Manager and the counsel for the Board shall review the investigation report, evidence and the case file of the complaint to determine if there is sufficient evidence to demonstrate a violation of the Board's Act, rules, or order to recommend probable cause to the Board.

A complaint for which the staff determines probable cause shall be referred to a Disciplinary Review Panel of the Board for an informal conference. Counsel for the Board shall serve the Respondent with a Notice of Violations and Informal Settlement Conference.

(h)

A complaint for which the staff determines that probable cause does not exist shall be referred to the Board for dismissal.

§462.6.Temporary Suspension of a License.

An executive committee of the Board, consisting of the Board Chair, Complaints Committee Chair, and a public member, shall temporarily suspend the license of a licensee under the Act if the executive committee determines, based on evidence or information presented to the committee, that the continued practice by the licensee constitutes a continuing or imminent threat to the public welfare.

A temporary suspension under subsection (a) of this section may also be ordered on a majority vote of the Board at a scheduled Board meeting.

The date of suspension will be either the date the executive committee votes to suspend the license, or the date that a majority of the Board votes to suspend the license.

A license temporarily suspended under this rule will be suspended without notice or hearing provided that, at the time of the suspension, a hearing to determine that disciplinary proceedings under this Act should be initiated against the licensee is scheduled to be held not later than the 14th day after the date of suspension. A second hearing on the suspended license shall be held not later than the 60th day after the date the suspension was ordered. If the second hearing is not held in the time required by this rule, the suspended license is automatically reinstated unless the delay was precipitated by the licensee for the purpose of procuring automatic reinstatement of the license.

Hearings for the temporary suspension of a license shall be held at the State Office of Administrative Hearings in accordance with Board Rules and the Act.

§462.7.Persons with Criminal Backgrounds.

The Board may revoke or suspend an existing valid license, disqualify a person from receiving or renewing a license, or deny to a person the opportunity to be examined for a license due to a felony conviction if the offense directly relates to the performance of the activities of a licensee and the conviction directly affects such person's present fitness to perform as a licensee of this Board.

No person currently serving a sentence in prison for a felony is eligible to obtain or renew his/her license.

In determining whether a criminal conviction directly relates to the performance of a licensee, the Board shall consider the factors listed in the Texas Civil Statutes, Article 6252.13c(4)(b).

Those crimes which the Board considers as directly related to the performance of a licensee include but are not limited to:

any felony or misdemeanor of which fraud, dishonesty, or deceit is an essential element;

any criminal violation of the Psychologists' Licensing Act or other statutes regulating or pertaining to the profession of psychology;

any criminal violation of statutes regulating other professions in the healing arts, which includes, but is not limited to medicine and nursing;

any crime involving moral turpitude;

In determining whether a criminal conviction directly affects a person's present activity, the Board shall consider the factors listed in Texas Civil Statutes, Article 6252-13c(4)(c)(1)-(6).

It shall be the responsibility of the applicant to secure and provide to the Board the recommendations of the prosecution, law enforcement, and correctional authorities regarding all criminal offenses.

The applicant shall also furnish proof in such form as may be required by the Board that he/she maintained a record of steady employment and has supported his/her dependents and has otherwise maintained a record of good conduct and has paid all outstanding court costs, supervision fees, fines and restitution as may have been ordered in all criminal cases in which he/she has been convicted.

§462.8.Rehabilitation Guidelines.

In the event of revocation or suspension of a license due to non-compliance with the rules of the Board and/or its ethical principles, licensees can expect to receive from the Board a plan of rehabilitation. The plan shall outline the steps the person must follow in order to be considered for relicensure or removal of suspension. Completion of the plan may lead to consideration of submission of an application for relicensure; removal of suspension; removal of supervision requirements. In the event the licensee has not met the Board's criteria for rehabilitation, the plan may be revised, expanded, and/or continued depending upon the progress of the rehabilitation program.

The Board may follow one or more options in devising a rehabilitation program:

The individual may be supervised in all or selected areas of activities related to his/her practice as a licensee by a licensed psychologist approved by the Board for a specified length of time.

The Board will specify the focus of the supervision.

The Board will specify the number of hours per week required in a face-to-face supervisory contract.

The supervisor will provide periodic and timely reports to the Board concerning the progress of the supervisee.

Any fees for supervision time will be the responsibility of the supervisee.

(E)

The supervisor is acting as a 'friend' of the Board. Judgements of the supervisor are to be made independently and without reference to Board opinions.

The individual may be expected to successfully complete a variety of appropriate educational programs. Appropriate educational formats may include but are not limited to workshops, seminars, courses in regionally accredited universities, or organized pre- or post-doctoral internship settings. Workshops or seminars which are not held in a setting of academic review (approved continuing education) need prior approval of the Board. Any course of study must be approved by the Board prior to enrollment if it is to meet the criteria of a rehabilitation plan.

The Board may require of the individual:

psychodiagnostic evaluations by a psychologist approved by the Board;

a physical examination including alcohol and drug screening by a physician approved by the Board;

psychotherapy on a regular basis from a psychologist approved by the Board;

any other requirement that seems appropriate to the individual case.

The Board may require the individual to:

take or retake and pass the appropriate professional examination;

take or retake and pass the Jurisprudence Examination;

take or retake and pass the Oral Examination;

complete any other requirement that seems appropriate to the individual case.

§462.9.Complaints Alleging Violations of Court Orders.

No complaint will be processed against a licensee if such complaint is predicated upon a violation of a court order unless such complaint includes certified court documents which show that the court has decided that the licensee did violate the specific court order and the court's response to such violation.

§462.10.Rules of Evidence in Contested Cases.

The rules of evidence described in the Administrative Procedure Act will be followed by the Board and its hearing officers. Considering that the Board commonly relies upon information presented to it in applications, written responses, and related documentation in the routine conduct of its affairs, including official decision-making in the processing of applications for licensure, evidence of a similar type will be considered and may be relied upon by the Board and its hearing officers in the conduct of the Board's affairs involving official decision-making in all matters relating to licensure, including disciplinary matters in contested cases.

§462.11.Legal Actions Reported.

Any legal action, civil or criminal in nature, taken against a licensee or practice of a licensee must be reported to the Board's office by sending a copy of the initial pleadings to the Board within twenty days of the filing of such action with the court. The licensee may, if desired, submit any further documentation and/or a written explanation along with a copy of the pleadings.

§462.12.Suspension of License for Failure to Pay Child Support.

On receipt of a final court or attorney general's order suspending a license due to failure to pay child support, the executive director shall immediately determine if the Board has issued a license to the obligator named on the order, and, if a license has been issued:

enter an order of suspension of the license;

report the suspension as appropriate; and

demand surrender of the suspended license.

The Board shall implement the terms of a final court or attorney general's order suspending a license without additional review or hearing. The Board will provide notice as appropriate to the licensee or to others concerned with the license.

The Board may not modify, remand, reverse, vacate, or stay a court or attorney general's order suspending a license issued under the Texas Family Code, Chapter 232, and may not review, vacate, or reconsider the terms of an order.

A licensee who is the subject of a final court or attorney general's order suspending his or her license is not entitled to a refund for any fee paid to the Board.

If a suspension overlaps a license renewal period, an individual with a license suspended under this section shall comply with the normal renewal procedures in the Act and this chapter; however, the license will not be renewed until subsections (g) and (h) of this section are met.

An individual who continues to engage in the practice of psychology or continues to use the titles "Licensed Psychologist," "Provisionally Licensed Psychologist," "Licensed Psychological Associate," "Licensed Specialist in School Psychology" or the initials "L.P.," "P.L.P.," "L.P.A.," or L.S.S.P." after the issuance of a court or attorney general's order suspending the license is liable for the same civil and criminal penalties provided for engaging in the prohibited activity without a license or while a license is suspended as any other license holder of the Board.

On receipt of a court or attorney general's order vacating or staying an order suspending a license, the executive director shall promptly issue the affected license to the individual if the individual is otherwise qualified for the license.

(h)

The individual must pay a reinstatement fee in an amount equal to the annual renewal fee set out in §473.3 of this title (relating to Annual Renewal Fees) prior to issuance of the license under subsection (g) of this section.

§462.13.Non-compliance with Continuing Education Requirements.

An individual who fails to comply with the Board's mandatory continuing education requirements shall be subject to a complaint for non-compliance with the Board's rules. If a complaint is filed against a licensee for non-compliance and the licensee resigns in lieu of adjudication of the complaint or the license is voided as delinquent and the licensee later applies for licensure, the complaint shall be reinstated; and the application shall be held in abeyance until the complaint is resolved.

Any licensee who has failed to submit proof of full compliance with §461.11 of this title (relating to Continuing Education) shall be referred to the investigation division pursuant to a complaint for non-compliance with §461.15 of this title (relating to Compliance with Act, Rules, Board Directives and Orders) on the forty-fifth day after the original renewal date for the license. The filing of a complaint under this provision shall be in addition to any penalties or requirements assessed by the licensing division for renewal.

§462.14.Monitoring of Licensees.

The Compliance Division is responsible for monitoring licensees who are ordered by the Board to perform certain acts. The Compliance Division ascertains that the licensee performs the required acts within the designated time period.

The Compliance Division is responsible for implementing the preventive approach of the Board to enforcement of the Act and the Rules of the Board by identifying and monitoring licensees who represent a risk to the public.

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 February 25, 1999.

TRD-9901183

For further information, please call: (512) 305-7700

Chapter 463. Applications

22 TAC §463.16

The Texas State Board of Examiners of Psychologists proposes an amendment to §463.16, concerning Degree Requirements for Provisionally Licensed Psychologists. The amendment is being proposed in order to clarify the degree requirements for licensed psychologists in the State of Texas.

Ms. Lee also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be to assist the Board in the licensure of competent professionals, thereby protecting the public. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the rule as proposed.

Comments on the proposal may be submitted by April 30, 1999, to Janice C. Alvarez, Texas State Board of Examiners of Psychologists, 333 Guadalupe, Suite 2-450, Austin, Texas 78701, (512) 305-7700.

The amendment is proposed under Texas Civil Statutes, Article 4512c, which provides the Texas State Board of Examiners of Psychologists with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it.

The proposed amendment does not affect other statutes, articles, or codes.

§463.16.Degree Requirements for Provisionally Licensed [ ~~Certification of~~ ] Psychologists.

The applicant's transcript must state that the applicant has a doctoral degree that designates a major in psychology. Additionally, the doctoral degree must be from [ ~~A doctoral degree based upon a program of studies whose content is "primarily psychological" means a doctoral degree granted from a department of psychology in~~ ] a regionally accredited institution [ ~~where the applicant's transcript designates a major in psychology~~ ].

The substantial equivalence of a doctoral degree received prior to January 1, 1979 based upon a program of studies whose content is primarily psychological means a doctoral degree based on a program which meets the following criteria:

(1)-(3)

There must be a clear authority and primary responsibility for the core and specialty areas whether or not the program cuts across administrative lines. The program must have identifiable faculty and administrative heads who are psychologists responsible for the graduate program. Psychology faculty are individuals who are licensed or provisionally licensed or certified psychologists, [ ~~or members/fellows of the American Psychological Association,~~ ] or diplomates of the American Board of Professional Psychology, or hold a doctoral degree in psychology from a regionally accredited institution.

(5)-(10)

Any person intending to apply for provisional licensure [ ~~certification~~ ] under the substantial equivalence clause must file with the Board an affidavit showing:

Courses meeting each of the requirements noted in subsection (b) of this section, [ ~~463.16(B) above~~ ] verified by official transcripts;

(2)-(3)

~~The Board will consider post-doctoral course work in determining the eligibility of an applicant when such course work terminates in a doctoral degree that is consistent with this rule.~~ ]

[ ~~(d)~~

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 February 25, 1999.

TRD-9901184

For further information, please call: (512) 305-7700

Part XXIII. Texas Real Estate Commission

Chapter 537. Professional Agreements and Standard Contracts

22 TAC §§537.11, 537.21, 537.36

The Texas Real Estate Commission (TREC) proposes amendments to §§537.11, 537.21, and 537.36, concerning standard contract forms. These actions would adopt by reference two revised forms to be used by Texas real estate licensees when negotiating a contract contingency for the sale of other property by the buyer or when negotiating a contract in which an abstract of title is to be used in lieu of a policy of title insurance. The amendment to §537.11 also would clarify that licensees may reproduce forms from printed copies or electronically from files available from TREC on the agency's site on the World Wide Web and that a computer program for using the forms may permit the user to strike through language at the direction of the parties to the contract. Nonsubstantive language changes also would be made to make the section consistent with other TREC rules.

Contract forms promulgated by TREC are developed by the Texas Real Estate Broker-Lawyer Committee, an advisory committee consisting of six brokers appointed by TREC and six attorneys appointed by the President of the State Bar of Texas. Forms are developed by the committee to expedite real estate transactions and reduce controversies to a minimum while safeguarding the interests of the parties. Real estate licensees are required to use forms promulgated by TREC in the kind of transaction for which they were intended, unless the parties to the transaction or their attorneys prepare the documents relating to the transaction. The amendments are proposed as part of the continuing review and revision of the forms promulgated by TREC and in connection with the pending rule review of Chapter 537 of this title.

The proposed amendment to §537.11 would add form TREC Number 10-3, Addendum for Sale of Other Property by Buyer, and form TREC Number 29-1, Addendum for Abstract of Title, to the list of forms promulgated by TREC. The amendment to §537.21 would adopt by reference the revised Addendum for Sale of Other Property by Buyer, which is used in a transaction when a buyer desires to make the purchase of one property contingent upon the sale of, and receipt of the sales proceeds for, another property. Non-substantive language changes have been made to the form to make it consistent with the language used in other forms promulgated by TREC. Specifically, the mandatory term "shall" is used only when requiring a party to perform an obligation.

The amendment to §537.36 would adopt by reference a revised Addendum for Abstract of Title, which is used in a transaction when the parties wish to rely upon examination of an abstract of title by the buyer's attorney rather than a policy of title insurance. The form has been rearranged and non-substantive language changes made for clarity and to use the term "shall" only when obligating a party to perform an obligation.

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 availability of current standard contract forms and clearer guidelines concerning the use and reproduction of the forms. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the proposed sections, other than the costs of obtaining copies of the forms, which would be available at no charge through the TREC web site, and available from private printers at an estimated cost of $7.50 per set of 50 copies.

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 that is affected by these sections is Texas Civil Statutes, Article 6573a.

§537.11.Use of Standard Contract Forms.

A licensee may [ ~~shall~~ ] not practice law, offer, give nor attempt to give advice, directly or indirectly; the licensee may [ ~~he shall~~ ] not act as a public conveyancer nor give advice or opinions as to the legal effect of any contracts or other such instruments which may affect the title to real estate; the licensee may [ ~~he shall~~ ] not give opinions concerning the status or validity of title to real estate; and the licensee may [ ~~he shall~~ ] not attempt to prevent nor in any manner whatsoever discourage any principal to a real estate transaction from employing a lawyer. However, nothing herein shall be deemed to limit the licensee's fiduciary obligation to disclose to the licensee's [ ~~his~~ ] principals all pertinent facts which are within the knowledge of the licensee, including such facts which might affect the status of or title to real estate.

A licensee may [ ~~shall~~ ] not undertake to draw or prepare documents fixing and defining the legal rights of the principals to a transaction. In negotiating real estate transactions, the licensee may fill in forms for such transactions, using exclusively forms which have been approved and promulgated by the Texas Real Estate Commission or such forms as are otherwise permitted by these rules. When filling in such a form, the licensee may only fill in the blanks provided and may not add to or strike matter from such form, except that licensees shall add factual statements and business details desired by the principals and shall strike only such matter as is desired by the principals and as is necessary to conform the instrument to the intent of the parties. A licensee may [ ~~shall~~ ] not add to a promulgated earnest money contract form factual statements or business details for which a contract addendum, lease or other form has been promulgated by the commission for mandatory use. Nothing herein shall be deemed to prevent the licensee from explaining to the principals the meaning of the factual statements and business details contained in the said instrument so long as the licensee does not offer or give legal advice. It is not the practice of law as defined in this Act for a real estate licensee to complete a contract form which is either promulgated by the Texas Real Estate Commission or prepared by the Texas Real Estate Broker-Lawyer Committee and made available for trial use by licensees with the consent of the Texas Real Estate Commission. Contract forms prepared by the Texas Real Estate Broker-Lawyer Committee for trial use may be used on a voluntary basis after being approved by the commission.

Where it appears that, prior to the execution of any such instrument, there are unusual matters involved in the transaction which should be resolved by legal counsel before the instrument is executed or that the instrument is to be acknowledged and filed for record, the licensee shall advise the principals that each should consult a lawyer of his choice before executing same.

A licensee may [ ~~shall~~ ] not employ, directly or indirectly, a lawyer nor pay for the services of a lawyer to represent any principal to a real estate transaction in which [ ~~he,~~ ] the licensee[ , ] is acting as an agent. The licensee may [ ~~also~~ ] employ and pay for the services of a lawyer to represent only the licensee in a real estate transaction, including preparation of the contract, agreement, or other legal instruments to be executed by the principals to the transactions.

A licensee [ ~~broker~~ ] shall advise the principals that the instrument they are about to execute is binding on them.

(h)

Forms approved or promulgated by the commission may [ ~~shall~~ ] be reproduced only from the following sources:

numbered copies [ ~~proofs~~ ] obtained from the commission , whether in a printed format or electronically reproduced from the files available on the commission's Internet site ;

printed copies made from copies [ ~~proofs~~ ] obtained from the commission;

legible photocopies made from such [ ~~proofs or printed~~ ] copies; or

computer-driven printers following these guidelines.

The computer file or program containing the form text must not allow the end-user direct access to the text of the form and may only permit the user to insert language in blanks in the forms or to strike through language at the direction of the parties to the contract .

Typefaces or fonts must appear to be identical to those used by the commission in printed copies [ ~~proofs~~ ] of the particular form.

The text and number of pages must be identical to that used by the commission in printed copies [ ~~proofs~~ ] of the particular form.

The spacing, length of blanks, borders and placement of text on the page must appear to be identical to that used by the commission in printed copies [ ~~proofs~~ ] of the form.

(E)

The name and address of the person or firm responsible for developing the software program must be legibly printed below the border at the bottom of each page in no less than six point type and in no larger than 10 point type.

(F)

The text of the form must be obtained from a copy [ ~~proof~~ ] of the form bearing a control number assigned by the commission.

(i)

The control number of each copy [ ~~proof~~ ] must appear on all forms reproduced from the copy [ ~~proof~~ ], including forms reproduced by computer-driven printers.

(j)

§537.21.Standard Contract Form TREC No. 10-3 [ ~~10-2~~ ].

The Texas Real Estate Commission adopts by reference standard contract form TREC No. 10-3 [ ~~10-2~~ ] approved by the Texas Real Estate Commission in 1999 [ ~~1994~~ ]. This document is published by and available from the Texas Real Estate Commission, P.O. Box 12188, Capitol Station, Austin, Texas 78711.

§537.36.Standard Contract Form TREC No. 29-1 [ ~~29-0~~ ].

The Texas Real Estate Commission adopts by reference standard contract form TREC No. 29-1 [ ~~29-0~~ ] approved by the Texas Real Estate Commission in 1999 [ ~~1993~~ ]. This document is published by and available from the Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188.

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 March 1, 1999.

TRD-9901232

Mark A. Moseley

General Counsel

Texas Real Estate Commission

For further information, please call: (512) 465-3900

Chapter 541. Rules Relating to the Provisions of Texas Civil Statutes, Article 6252-13c

22 TAC §541.1

The Texas Real Estate Commission (TREC) proposes an amendment to §541.1, concerning criminal offense guidelines. The amendment would add registered easement or right-of-way agents to the list of licensees subject to the section. The section enumerates the kinds of criminal offenses which may result in the disapproval of an application for a license or disciplinary action against a licensee under the authority of Texas Civil Statutes, Article 6252-13c. Registered easement and right-lf-way agents are subject to the provisions of the section pursuant to §535.400 of this title (relating to Registration of Easement or Right-of-way Agents); the amendment is necessary to clarify that the section applies to persons licensed or registered by the commission or seeking a license or registration.

Mark A. Moseley, general counsel , has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. There is no anticipated impact on local or state employment as a result of implementing the section.

Mr. Moseley also has determined that for each year of the first five years the section as proposed is in effect the public benefit anticipated as a result of enforcing the section will be clarification of the criminal offense guidelines for applicants, licensees and registrants. There is no anticipated economic cost to persons who are required to comply with the proposed section.

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 amendment 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.

§541.1.Criminal Offense Guidelines.

For the purposes of Texas Civil Statutes, Article 6252-13c, the Texas Real Estate Commission considers the following felonies or misdemeanors to be criminal offenses which may be directly related to the duties and responsibilities of the occupation of real estate broker, real estate salesperson, easement or right-of-way agent, professional inspector, real estate inspector or apprentice inspector for the reason that the commission of the following criminal offenses tends to demonstrate inability to represent the interest of another with honesty, trustworthiness and integrity:

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 February 23, 1999.

TRD-9901136

Mark A. Moseley

General Counsel

Texas Real Estate Commission

For further information, please call: (512) 465-3900

Part XXV. Structural Pest Control Board

Chapter 591. General Provisions

The Texas Structural Pest Control Board proposes amendments to §§591.1-591.3, 591.5, 591.7-591.13, and 591.21, concerning the purpose of the board; rule making; suspension of rules; board meetings; board records; board acceptance of documents; board hearings; administrative penalties; determination of administrative penalties; settlements; public comment; and definition of terms and proposes the repeal of §591.22, concerning copies and certificates.

The proposed amendments of said sections define the purpose of the board in terms more compatible with the statutory language of VACS art. 135b-6; eliminate the duplication of language contained in the Administrative Procedures Act and includes the participation of an industry member of the board when changes to regulations are proposed; clarifies that the board can only suspend the rules adopted by the board and not statutes enacted by the legislature; allows the board to order a public hearing in any pending matter other than a contested case; clarifies that all official records of the board are open to inspection under the provisions of the Texas Open Records Act; clarifies the boards document acceptance process; makes grammatical changes; clarifies that only administrative hearings of the board held by the State Office of Administrative Hearings under the procedural rules of said office are covered, provides rules for filing exceptions to proposals for decision and replies thereto and for default judgements, provides that reimbursement on non-party witness expenses is discretionary with the board; clarifies the types of violations for the penalty ranges concerned and provides that the hearing costs will be added to the administrative penalty when the respondent affirmatively requests a hearing and then fails to appear that the hearing; makes provisions more compatible with the statutory language of VACS art. 135b-6, §10B; provides that the chairman of the board may recognize any person to speak before the board and may limit the time allotted to the speaker; changes the definition of apprentice to make it clear that an apprentice is not a licensee. The proposed repeal of said section eliminates the duplication of provisions elsewhere in the rules of the board and provisions contained in the Texas Open Records Act.

Benny M. Mathis, Executive Director has determined that there will not be fiscal implications as a result of enforcing or administering the proposed rules.

There will be no estimated additional cost, estimated reduction in cost or estimated loss or increase in revenue to state or local government for the first five-year period the proposed rules will be in effect.

There will be no cost per employee, cost per hour of labor or cost per $100 of sales to small or large businesses.

Benny M. Mathis, Executive Director has determined that for each year of the first five years the proposed rules are in effect, the public benefits anticipated as a result of enforcing the proposed rules will be the better understanding of the rules by the customer/consumer, the licensee/service provider and the public at large and the better application and enforcement of such rules for the benefit of the customer/consumer and the public at large.

There is no anticipated economic cost to individuals who are required to comply with the proposed rules.

Comments on the proposal may be submitted to Benny Mathis, Executive Director, Structural Pest Control Board, 1106 Clayton Lane #100LW, Austin, Texas, 78723.

22 TAC §591.1

The amendments to the rule are proposed under Vernon's Ann. Civ. Stat., art. 135b-6, which provides the Structural Pest Control Board with the authority to license and regulate the structural pest control industry.

The following is the rules, statutes, articles and/or code that are affected by the proposed rule: §§591.1-591.3, VACS article 135b-6, §§591.5, 591.7-591.13, 591.21, and 591.2

§591.1.[ ~~Origin and~~ ] Purpose of the Board.

The Board will provide for the protection of the health, safety and welfare of the citizens of Texas and the environment by licensing, regulating, and developing standards and criteria for structural pest control. [ The Board will carry out the right and duty of the state to protect the health and welfare of its citizens, to protect the environment against the misuse of pesticides, and to promote a more professional standard for the structural pest control industry. ]

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 February 24, 1999.

TRD-9901170

For further information, please call: (512) 451-7200

22 TAC §591.2

The amendments of rules and repeal are proposed under Vernon's Ann. Civ. Stat., Art. 135b-6, which provides the Structural Pest Control Board with the authority to license and regulate the structural pest control industry.

The following is the rules, statutes, articles and/or code that are affected by the proposed rule: §591.1, VACS article, 135b-6, §§591.3, 591.5, 591.7-591.13, 591.21, and 591.22.

§591.2.Rule Making.

[ The Board may adopt, repeal, or amend sections under the authority of the Act at anytime; provided, however, that notice of such amendment or new section shall be given in the manner of such amendment or new section shall be given in the manner required by law. ] When there are proposed changes to the regulations, there shall be at least one public member, [ ~~and~~ ] one ex officio member and one industry member present at the board meeting when such proposed changes are made.

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 February 24, 1999.

TRD-9901169

For further information, please call: (512) 451-7200

22 TAC §591.3

The amendments to the rule are proposed under Vernon's Ann. Civ. Stat., Article 135b-6, which provides the Structural Pest Control Board with the authority to license and regulate the structural pest control industry.

The following is the rules, statutes, articles and/or code that are affected by the proposed rule: §591.1, VACS article 135b-6, §§591.3, 591.5, 591.7-591.13, 591.21, and 591.22.

§591.3.Suspension of Rules.

The Board may suspend or waive any section of the rules , in whole or in part, for good cause shown, when the particular facts or circumstances justify.

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 February 24, 1999.

TRD-9901168

For further information, please call: (512) 451-7200

22 TAC §591.5

The amendments to the rule are proposed under Vernon's Ann. Civ. Stat., Art. 135b-6, which provides the Structural Pest Control Board with the authority to license and regulate the structural pest control industry.

The following is the rules, statutes, articles and/or code that are affected by the proposed rule: §591.1 VACS art., 135b-6, §§591.3, 591.5, 591.7-591.13, 591.21, and 591.22.

§591.5.Board Meetings.

All board meetings will be held in Austin, Texas, [ ~~in the office of the Board,~~ ] unless a change of place is determined by the board.

(c)-(f)

The Board may order a public hearing in any pending matter other than a contested case where the public interest would be best served thereby.

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 February 24, 1999.

TRD-9901167

For further information, please call: (512) 451-7200

22 TAC §591.7

The following is the rules, statutes, articles and/or code that are affected by the proposed rule: §591.1, VACS art., 135b-6, §§591.3, 591.5, 591.7-591.13, 591.21, and 591.22.

§591.7.Board Records.

All official records of the Board, [ ~~except files relating to applications for employment, or confidential records of investigations or other sensitive records;~~ ] shall be public records open to inspection at any reasonable time by any person under the provisions of the Texas Open Records Act ; but such records shall not be taken from the Board office.

Copies of official records may be made and certified by the Chairman, Vice-Chairman, or the Executive Director, the expense thereof to be borne by the person or party requesting same. The cost of all such copies is [ ~~to be~~ ] set according to [ ~~the~~ ] General Services Commission rules .

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 February 24, 1999.

TRD-9901166

For further information, please call: (512) 451-7200

22 TAC §591.8

The following is the rules, statutes, articles and/or code that are affected by the proposed rule: §591.1, VACS art., 135b-6, §§591.3, 591.5, 591.7-591.13, 591.21, and 591.22.

§591.8.Board Acceptance of Documents.

All instruments, correspondence, and materials delivered to the Board will be stamped or marked [ ~~as Received and the~~ ] with the date received [ ~~thereof~~ ] clearly indicated. On any application or petition requiring Board action for acceptance or filing, a preliminary examination will be conducted by the staff to determine if the application or petition is in proper form and accompanied by the necessary fee.

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 February 24, 1999.

TRD-9901165

For further information, please call: (512) 451-7200

22 TAC §591.9

The amendment to the rule are proposed under Vernon's Ann. Civ. Stat., Art. 135b-6, which provides the Structural Pest Control Board with the authority to license and regulate the structural pest control industry.

The following is the rules, statutes, articles and/or code that are affected by the proposed rule: §591.1, VACS art., 135b-6, §§591.3, 591.5, 591.7-591.13, 591.21, and 591.22.

§591.9.Board Administrative Hearings.

~~[(a)~~

~~The Board may order a public hearing in any pending matter other than a contested case where the public interest would be best served thereby.]~~

[ ~~(b)~~ ] The administrative hearings of the board on any matter shall, unless otherwise ordered, be held in Austin , Texas by the State Office of Administrative Hearings. All hearings are governed by the procedural rules of that office (1 TAC §155.1 et.sec) .

~~[(c)~~

~~Notice of meetings and hearings will be in accord with the Open Meetings Act and Administrative Procedure Act.]~~

~~[(d)~~

In computing any period of time prescribed or allowed by this chapter, by order of the agency, or by any applicable statute, the period shall begin on the day after the act, event, or default in controversy and conclude on the last day of such computed period, unless it be a Saturday, Sunday, or legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday, or legal holiday.]

~~[(e)~~

No stipulation or agreement between parties or their representatives regarding any matter involved in a proceeding before the Board may be enforced unless it is in writing and signed by the parties or their representatives or unless it is dictated into the record during the course of a hearing.]

~~[(f)~~

Any party may appear before the agency and be represented by an attorney at law. Any person may appear on his own behalf, or be represented by a bona fide full-time employee. A corporation, partnership, or association may appear and be represented by any bona fide officer, partner, or full-time employee authorized to bind the corporation, partnership, or association to a legal contract.]

[ ~~(g)~~ ] [ In a contested case, all motions for consideration must be filed with the hearings officer or administrative law judge no less than five days prior to the date on which the matter is scheduled to be heard. ] Exceptions to an [ ~~a hearing officer's or~~ ] administrative law judge's proposal for decision, if any, must be filed with the [ ~~hearing officer or~~ ] administrative law judge no later than 20 days after the date the proposal for decision is issued. Replies to exceptions, if any, must be filed within 30 days after the date the proposal for decision is issued [ ~~ten days of the date the exceptions are filed~~ ].

[ ~~(h)~~ ] A party who appeals a final decision in a contested disciplinary case shall pay all cost of preparation of any original or certified copy of the record of the agency proceedings that is required to be transmitted to the reviewing court.

[ ~~(i)~~ ] The Board may [ ~~commission will~~ ] reimburse a non-party witness in a formal disciplinary hearing for travel expenses at the rates established by the Administrative Procedures Act.

[ ~~(j)~~ ] If a respondent fails to appear in person or by legal representative on the day and at the time set for public hearing, the administrative law judge, upon motion by the Board's representative, shall enter a default judgment in the matter adverse to the respondent who has failed to attend the [ ~~public~~ ] hearing. For purposes of this section, default judgment shall mean the issuance of a proposal for decision against the respondent in which the allegations against the respondent in the notice of [ ~~public~~ ] hearing are deemed admitted as true without any requirement for additional proof to be submitted by the petitioner.

[ ~~(k)~~ ] Any default judgment granted under this section will be entered on the basis of the allegations contained in the notice of [ ~~public~~ ] hearing and upon the proof of proper notice to the defaulting party opponent. For purposes of this section, proper notice means notice sufficient to meet the provisions of the Government Code, §§2001.051, 2001.052, and 2001.054 and this section; the notice must be mailed to the last known address provided to the Structural Pest Control Board pursuant to its regulations, such notice also shall include the following language in capital letters in 12-point boldface type: FAILURE TO APPEAR AT THE HEARING WILL RESULT IN THE ALLEGATIONS AGAINST YOU AS CONTAINED IN THIS NOTICE BEING ADMITTED AS TRUE, REGARDLESS OF WHETHER ADDITIONAL PROOF IS SUBMITTED.

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 February 24, 1999.

TRD-9901164

For further information, please call: (512) 451-7200

22 TAC §591.10

The following is the rules, statutes, articles and/or code that are affected by the proposed rule: §591.1, VACS art., 135b-6, §§591.3, 591.5, 591.7-591.13, 591.21, and 591.22.

§591.10.Administrative Penalties.

The Executive Director shall be responsible, after investigation by the agency staff, for determining whether a violation of the Structural Pest Control Act (The Act) or a rule or order adopted by the Board has occurred which allows the assessment of an administrative penalty. If [ ~~after such investigation and determination~~ ] it is found a violation has occurred, the Executive Director may issue a violation report as described in the Act, §10B.

(b)-(e)

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 February 24, 1999.

TRD-9901163

For further information, please call: (512) 451-7200

22 TAC §591.11

The amendments to the rules are proposed under Vernon's Ann. Civ. Stat., Art. 135b-6, which provides the Structural Pest Control Board with the authority to license and regulate the structural pest control industry.

The following is the rules, statutes, articles and/or code that are affected by the proposed rules: §591.1, VACS art., 135b-6, §§591.3, 591.5, 591.7-591.13, 591.21, and 591.22.

§591.11.Determination of Administrative Penalties.

Base penalty (BP) amounts will be established that consider the seriousness of the violation. Examples of possible violations of the Structural Pest Control Act and a possible base penalty for each violation and each day a violation exists are as follows. The violations are not limited to the list and the base penalty may vary depending upon the circumstances.

Violations which do not affect [ ~~present a hazard to~~ ] the public health, safety, welfare, or [ to ] the environment such as practices which are false, misleading or deceptive [ ~~failure to honor contract~~ ] or failure to notify the Board of an address where a licensee may be reached may be assessed a penalty of $250 to $2,000 per violation.

Minor violations which affect [ ~~present a minor hazard to~~ ] the public health, safety, welfare, or [ to ] the environment that may result from actions such as failure to supervise employees or failure to maintain proper insurance coverage may be assessed a penalty of $300 to $3,000 per violation.

Major violations which may affect [ ~~present a major hazard to~~ ] the public health, safety, welfare, or [ to ] the environment [ ~~that may result from actions~~ ] such as use inconsistent with the label or intentional misrepresentation may be assessed a penalty of $500 to $5,000 per violation.

(5)

The cost of the hearing will be added to and made a part of the administrative penalty when the respondent has affirmatively requested a hearing and fails to appear at the specified time and date of the hearing. This provision does not apply if a continuance is granted or the hearing is rescheduled and respondent subsequently appears at the hearing. for any other reason.

Adjustment will be determined in the reduction or addition to the base penalty as appropriate in four categories.

History of previous violations. Consideration will be given to such items as length of time since violation has occurred and [ ~~inconsistency of~~ ] compliance history.

(2)-(4)

The cost of the hearing will be added to the administrative penalty when the respondent has affirmatively requested a hearing and fails to appear at the specified time and date of the hearing. This provision does not apply if a continuance is granted or the hearing is rescheduled for any other reason.]

~~[(5)~~

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 February 24, 1999.

TRD-9901162

Benny M. Mathis

For further information, please call: (512) 451-7200

22 TAC §591.12

The amendment is proposed under Vernon's Annotated Civil Statutes, Article 135b-6, which provides the Structural Pest Control Board with the authority to license and regulate the structural pest control industry.

The following rules, statutes, articles and/or code are affected by the proposed rule: §591.1, VACS Article, 135b-6, §§591.3, 591.5, 591.7-591.13, 591.21, 591.22.

§591.12. Settlements.

It is Board policy to encourage resolution of complaints against structural pest control licenses. This provision provides procedures for the settlement of complaints.

At the request of the licensee or the Executive Director, the Executive Director may designate a time and place for a settlement conference of a complaint investigated by the Board. A licensee shall be notified in writing of the time and place of the settlement conference and the alleged violations. Licensees or their representatives attending the conference shall be empowered to act on behalf of the licensee and bind the licensee to any settlement.

~~[ ~~(c)~~~~

~~Settlements reached under this provision must be approved by the Board before they become effective.]~~

[ ~~(d)~~ ] Settlements may include any combination of sanctions available to the Board. They may also include requiring extra training and education and refunds not exceeding the original contracted amounts or services not different from the original contracted services.

[ ~~(e)~~ ] Informal settlements may be proposed by state investigators when authorized by the Executive Director. The settlements must follow the guidelines set out in this section, except that a state investigator shall not settle a complaint involving a misapplication. State investigators shall propose retreatments and/or refunds only as terms of their informal settlements. The retreatments and/or refunds shall not exceed the amounts or be different from the treatments agreed upon in the original contract for services.

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 February 24, 1999.

TRD-9901161

For further information, please call: (512) 451-7200

22 TAC §591.13

The following rules, statutes, articles and/or code are affected by the proposed rule: §591.1, VACS Article, 135b-6, §§591.3, 591.5, 591.7-591.13, 591.21, 591.22.

§591.13. Public Comment.

[ ~~On written request received not later than three days prior to a scheduled Board meeting~~ ] A [ a ] person shall be permitted to appear before the Board during the public comment period regarding any issue under the jurisdiction of the Board. The Chairman may recognize any person to speak and reserves the right to limit the time allotted to the speaker.

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 February 24, 1999.

TRD-9901160

For further information, please call: (512) 451-7200

22 TAC §591.21

The amendment is proposed under Vernon's Annotated Civil Statutes, Article, 135b-6, which provides the Structural Pest Control Board with the authority to license and regulate the structural pest control industry.

The following rules, statutes, articles and/or code are affected by the proposed rule: §591.1, VACS Article, 135b-6, §§591.3, 591.5, 591.7-591.13, 591.21 and 591.22.

§591.21. Definition of Terms.

In addition to the definitions set out in the Structural Pest Control Act, Section 2, the following words, names, and terms shall have the following meanings, unless the context clearly indicates otherwise.

Act-The Texas Structural Pest Control Act, Texas Civil Statutes, Article 135b-6, as amended.

Apprentice-A sales or service employee who has been registered with the Structural Pest Control Board, but has not yet passed a technician examination. An apprentice card [ ~~license~~ ] is valid for a maximum of 12 months.

Bait Process-The use of food or other requisite that may be treated with a pesticide and/or other mitigating agent that will adversely affect the pest.

Barrier-For the purposes of a termite treatment, an area of soil or other material which has been treated with a termiticide.

(5)

Board-The Structural Pest Control Board

(6)

Category-The type of service or services a person or business entity is authorized to perform.

(7)

Chairman-An individual appointed by the Governor, who presides at the Board meetings.

(8)

Contract-A binding agreement between two or more persons or parties that spell out in writing, the terms and conditions or such agreement, and will include, but not limited to, warranties or guarantees for pest control work.

(9)

Executive Director-The person employed by the Board who administers the provisions of this of this Act and the rules and regulations promulgated by the Board.

(10)

Investigator-A structural pest control investigator employed by the Board.

(11)

License-A document issued by the Board to a person authorizing the practicing and/or supervising of the professional service or services indicated thereon.

(12)

Licensee-The holder of a valid license.

(13)

Personal Contact-Physical presence at a work location.

(14)

Revoke-To cancel a license issued under authority of the Structural Pest Control Act. When a business license is revoked, the holder of said license must acquire a new license by completing a new application, and paying the required fee. In the case of the certified applicator, the holder of such certified applicator's license must acquire a new license by completing a new application, paying a required fee, and being re-examined in each category desired by said person.

(15)

Suspend-To cease operations for a period of time as specified by the Board.

(16)

Vice-Chairman-An individual appointed Board member elected by the Board, who presides at the Board meeting in the absence of the Chairman.

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 February 24, 1999.

TRD-9901159

For further information, please call: (512) 451-7200

22 TAC §591.22

(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 Structural Pest Control Board or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeal is proposed under Vernon's Annotated Civil Statutes, Article 135b-6, which provides the Structural Pest Control Board with the authority to license and regulate the structural pest control industry.

The following rules, statutes, articles and/or code are affected by the proposed repeal: §591.1, VACS Article, 135b-6, §§591.3, 591.5, 591.7-591.13, 591.21 and 591.22.

§591.22. Copies and Certificates.

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 February 24, 1999.

TRD-9901158

For further information, please call: (512) 451-7200

Chapter 595. Compliance and Enforcement

The Structural Pest Control Board proposes amendments to §595.2. and §595.5., concerning Employee Registration and Termination and Contracts. The proposed amendments for employee registration and termination specify the board's notice and license requirements upon the employment and termination of all technicians and apprentices by a business licensee or certified noncommercial applicator and the proposed amendments for contracts specify the types of documents upon which the name, location address and telephone number of both the board and the licensee must appear and the types of documents upon which the name, location address and telephone number of only the licensee must appear.

Benny M. Mathis, Executive Director, has determined that for each year of the first five years the proposed rules are in effect there are no fiscal implications as a result of enforcing or administering the proposed rules.

There will be no estimated cost, estimated reduction in cost or estimated loss or increase in revenue to state or local government for the first five year period the proposed rules will be in effect.

There will be no cost per employee, cost per hour of labor or cost per $100 of sales to small or large businesses.

Benny M. Mathis, Executive Director has determined that for each year of the first five years the proposed rules are in effect, the public benefits anticipated as a result of enforcing the proposed rules will be the better understanding of the rules by the customer/consumer, the licensee/service provider and the public at large, and the better application and enforcement of such rules for the benefit of the customer/consumer and the public at large.

There is no anticipated economic cost to individuals who are required to comply with the proposed rules.

Comments on the proposals may be submitted to Benny M. Mathis, Executive Director, Structural Pest Control Board, 1106 Clayton Lane #100LW, Austin, Texas 78723.

22 TAC §595.2

The amendment is proposed under Vernon's Annotated Civil Statute Article 135b-6, which provides the Structural Pest Control Board with the authority to license and regulate the structural pest control industry.

The following rules, statutes, articles and/or code are affected by the proposed amendment: §595.2, §595.5, VACS, Article 135b-6.

§595.2. Employee Registration and Termination .

It shall be the duty of the business licensee or certified noncommercial applicator to inform the Board in writing of the employment and termination of all technicians and apprentices.

Notice [ ~~Such notice~~ ] of employment shall be furnished within ten days of the date of employment and shall include the full name and home address of the technician or apprentice, the date of employment, and if applicable, the branch office at which he will be employed, and other information as may be required. This notice shall be provided on a form as prescribed by the Structural Pest Control Board.

When employing a technician, the business licensee or certified noncommercial applicator shall obtain from the Board a license for such technician. Any registration of license fees paid for technicians and apprentices shall not be refundable or transferred to another technician or apprentice.

Notice of termination shall include the employee name, license number and date of termination, and be provided to the Structural Pest Control Board within 30 days of the date of termination.

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 February 24, 1999.

TRD-9901155

For further information, please call: (512) 451-7200

22 TAC §595.5

The following rules, statutes, articles and/or code are affected by the proposed amendment: §595.2, §595.5, VACS, Article 135b-6.

§595.5. Contracts.

Each written contract, warranty, service agreement, termite treatment disclosure document or guarantee [ ~~for service~~ ] of a business regulated by the Structural Pest Control Board must contain the name, address and telephone number of the Board on the face of the document. It must also include the business name, location address, telephone number and the statement "Licensed and regulated under the Structural Pest Control Act".

The business name, telephone number and location address [ ~~requirement in subsection (a) of this section~~ ] shall be on the face of any [ ~~contract, warranty,~~ ] invoice left with the customer at the time of service. [ ~~termite treatment disclosure document or guarantee issued by the pest control operator.~~ ]

The requirements [ ~~requirement~~ ] in subsections [ ~~subsection~~ ] (a) and (b) of this section shall be legible and printing shall be in at least seven-point type.

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 February 24, 1999

TRD-9901154

For further information, please call: (512) 451-7200

Chapter 599. Treatment Standards

The Texas Structural Pest Control Board proposes amendments to §599.2, §599.3, concerning Subterranean Termite Post Construction Treatments and Subterranean Termite Pre-construction termite treatments. The proposed amendments for Post Construction Treatments specify the requirements and procedures for such treatments and pesticide applications; permit the treatment of less than the entire structure to accommodate the customer's desires and specify where durable signs shall be placed upon completion of a termite treatment, other than a bait treatment, and where such signs shall be placed at the first placement of baits and/or monitoring stations for termite treatments using a bait product and the proposed amendments for pre-construction treatments specify the requirements and procedures for full and partial treatments and pesticide applications; the information and notices to be provided and given to the board; requirements and procedures for commercial treatments; and the administrative penalty for violations.

Benny M. Mathis, Executive Director has determined that for the first five year period the proposed rules will be in effect there will be no fiscal implications as a result of enforcing or administering the proposed rules.

There will be no estimated reduction in cost or estimated loss or increase in revenue to state or local government for the first five year period the proposed rules will be in effect.

There will be no cost per employee, cost per hour of labor or cost per $100 of sales to small or large businesses.

There is no anticipated economic cost to individuals who are required to comply with the proposed rules.

Comments on the proposal may be submitted to Benny M. Mathis, Executive Director, Structural Pest Control Board, 1106 Clayton Lane #100LW, Austin, Texas 78723.

22 TAC §599.2

The following rules, statutes, articles and/or code are affected by the proposed amendment: §599.2, §599.3, VACS, Article 135b-6.

§599.2. Subterranean Termite Post Construction Treatments.

All pesticide applications must be made in accordance with the directions and precautions specified on the labeling of the pesticide used. Except, the applications of less than the labeled concentration may be applied if the volume of spray mix is increased to achieve the intended rate of active ingredient per foot in the treatment zone.

A treatment of less than the entire structure will be permitted to accommodate the customer's desires and to allow the treating company to perform the job in a manner prescribed by their professional evaluation.

All treatments must strictly adhere to the procedures outlined in the disclosure statement required in §599.4 of this title (relating to Termite Treatment Disclosure Documents). Except, that deviation will be permitted when unexpected circumstances occur necessitating a change in the treatment and the certified applicator responsible issues a written addendum to the contract or disclosure documents prior to final billing for the jobs.

Upon completion of a termite treatment, other than a bait treatment the company responsible for providing the treatment shall leave a durable sign adjacent to the [ ~~hot~~ ] water heater closet , [ or ] electric breaker box, [ or ] beneath the kitchen sink or in the interior bath trap access giving the name and address of the licensee, the final date of the treatment, and a statement that the notice should not be removed.