Part I.
Texas Department of Public Safety
Chapter 3.
Traffic Law Enforcement
Subchapter B. Enforcement Action
37 TAC §3.22, §3.24
The Texas Department of Public Safety adopts amendments to
§3.22 and §3.24, concerning the instances in which written warnings
will not be issued and speed law enforcement, without changes to the proposed
text as published in the December 18, 1998, issue of the
Texas Register
(23 TexReg 12869).
The justification for these amendments is to clarify department policy.
No comments were received regarding adopting these amendments.
The amendments are adopted pursuant to Texas Government Code,
§411.006(4), which authorizes the director to adopt rules, subject to
commission approval, considered necessary for the control of the department.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on April
19, 1999.
TRD-9902277
Dudley M. Thomas
Director
Texas Department of Public Safety
Effective date: May 9, 1999
Proposal publication date: December 18, 1998
For further information, please call: (512) 424-2135
37 TAC §3.59, §3.62
The Texas Department of Public Safety adopts amendments to
§3.59, Regulations Governing Transportation of Hazardous Materials and
§3.62, Regulations Governing Transportation Safety. Section 3.62 is adopted
with changes to the proposed text as published in the December 18, 1998, issue
of the
Texas Register
(23 TexReg 12870). Section
3.59 is adopted without changes and will not be republished.
The justification for the amendments will be to ensure to the public that
a motor carrier is in compliance with all of the statutes and regulations
pertaining to the safe operation of commercial vehicles in this state.
The amendments are necessary to implement changes resulting from revisions,
additions, and interpretations to the Federal Hazardous Materials Regulations
and the Federal Motor Carrier Safety Regulations. Additional amendments are
provided to clarify the department's requirements for municipal certification
of police officers to enforce the safety regulations and the procedures for
administering the Compliance Audit Review Program.
Section 3.62(k)(3)(B) is amended to correct a grammatical error in spelling
and §3.62(l)(2)(D) concerning Administrative Penalties is amended to
correct the amount of the penalty which was incorrectly shown as $11,000 in
the proposed rules to the correct amount of $1,100.
A summary of the comments received and the department's response to the
comments follow:
COMMENT: The rules pertaining to §3.62(h), Municipal Certification
Requirements, do not assure inspections will be conducted safely to the drivers
and motoring public and the commercial motor vehicle drivers have knowledge
that the inspectors are trained and certified to conduct such inspections
through the use of special insignia that would be worn on the uniform of the
certified officer.
RESPONSE: The department believes that it should be the responsibility
of every officer enforcing the safety regulations to ensure that the roadside
inspection is conducted in a safe environment for all parties involved as
a normal course of action. Thus the need to add the suggested language, which
is overly broad and open to varying interpretations which would only serve
to create confusion in the program, is unnecessary.
The department is aware of the concerns of the motor carrier industry about
which officers have been certified to enforce the regulations. However, we
believe that the decision to require an insignia to be worn on the uniform
of the certified police officers should be at the option of the municipalities
within the uniform dress policies of the agencies and not a requirement that
should be placed on the agencies by the department. We also believe that this
is an issue that should be addressed at the motor carrier-police administrator
level instead of at the driver-police officer level. To address this issue,
the department will update and maintain an accurate list of all municipal
police officers that have been trained and certified to enforce the regulations
along with the agency contact person and make the list available to the motor
carrier industry.
COMMENT: The language in §3.62(h)(2) concerning the de-certification
of a municipality's authority to enforce the safety regulations should read
"shall" instead of "may."
RESPONSE: The department believes that the language in the proposed rules
provides a mechanism to de-certify a municipality's authority to enforce the
safety regulations under certain conditions while also providing both sides
with the opportunity to resolve problems without de-certification. Although
this language is more permissive than that suggested by the industry, it has
the potential of accomplishing the same results.
COMMENT: The rules pertaining to §3.62(j), Maintaining Certification,
should include language pertaining to suspending the officer for failing to
attend refresher training.
RESPONSE: The department believes that the language in the proposed rules
adequately address this issue in that an officer must attend minimum refresher
training once each year in order to maintain his or her certification.
COMMENT: The rules pertaining to §3.62(k), Safety Audit Program, concerning
follow-up investigations of motor carriers that have been subject to an enforcement
action should be amended to exclude any motor carrier having a satisfactory
rating at the time of the enforcement action. Texas Motor Transportation Association
(TMTA) is concerned that the use of existing personnel to conduct a follow-up
investigation of a motor carrier that had obtained a satisfactory rating is
unreasonable, unfair, and an inappropriate use of the department's resources
given the thousands of motor carriers in the state that have never received
a compliance review.
RESPONSE: The fact that a motor carrier had obtained a satisfactory safety
rating in the previous investigation should not be the determining factor
in deciding whether or not to conduct a follow-up investigation. The purpose
of the follow-up investigation is to verify that the motor carrier has taken
the steps to correct the violations that were discovered in the previous investigation
that led to the enforcement action. The follow-up investigations are consistent
with the department's requirement to implement a Compliance Review Program
that is compatible with the federal program.
A public hearing was held on February 17, 1999 at the department headquarters
in Austin. Listed below are the comments received at the hearing followed
by the department's response:
COMMENT: Clarification was requested concerning what the cities are going
to be required to do under the requirements of §3.62(h)(1)(A) pertaining
to the cities executing a Memorandum of Understanding with the department
concerning the working policies and procedures of the inspection program whereby
the resources of all agencies will be maximized, duplication of efforts will
be minimized, and uniformity in the program will be maintained.
RESPONSE: The purpose of the Memorandum of Understanding is to provide
a framework within the safety enforcement program that will ensure that all
agencies, both state and municipal, are conducting the inspections in the
same manner, that all enforcement policies are uniform, and that all agencies
recognize and accept the inspections of all of the certified agencies. The
department will require the municipalities to enter into the Memorandum of
Understanding and agree to comply with the same enforcement standards that
the department is subject to on a national level. This framework will allow
a motor carrier to travel between the different certified municipalities and
throughout the state with no change in operating procedures resulting from
different enforcement program.
COMMENT: Issue concerning the cities' acceptance and issuance of the Commercial
Vehicle Safety Alliance (CVSA) decal.
RESPONSE: The Memorandum of Understanding will allow the department to
distribute CVSA decals to the municipalities to be used by the police officers
and placed on the vehicle to show that the vehicle has passed the inspection
with no defects. As a condition of the Memorandum of Understanding, an agency
agrees to accept a decal issued by any certified officer for a period of ninety
days without re-inspecting the vehicle unless the officer detects an obvious
violation. This program minimizes duplication of efforts.
COMMENT: Clarification of the language in §3.62(h)(1)(A) concerning
maintaining uniformity in the inspection program. Will the department provide
a representative for each region to serve as an overseer for the municipalities
participating in that region?
RESPONSE: The department believes that the key to maintaining uniformity
in the inspection program is communication. Thus, a representative from the
department's License & Weight Service in each region will be assigned
to maintain contact with the municipal police agency within the region on
a routine basis to provide updates to the program, answer questions concerning
the inspection and enforcement procedures, and help to resolve any conflicts
or issues that may arise within the program.
COMMENT: The rules pertaining to §3.62(j), Maintaining Certification
requiring that an officer must attend a refresher training course approved
by the department once each year. What will the training pertain to and where
and when will it be provided?
RESPONSE: The department is currently finalizing the outline for the refresher
training course. The course will consist of information from each course offered
in §3.62(i). An officer will be required to attend only that portion
of the refresher training applicable to the course in which he or she has
been certified. The one-week refresher course will be conducted at the Department
of Public Safety Academy in Austin during the week of May 10 - 14 and May
17 - 21.
COMMENT: Issue concerning the officer's ability to conduct Level V inspections.
RESPONSE: The reference to the Level V inspections was taken from the CVSA
guidelines and are intended to be used for terminal inspections completed
by troopers conducting compliance reviews and not as one of the levels of
roadside inspections conducted by the municipal officers.
COMMENT: The rules pertaining to §3.62(i)(4), Motor Coach course.
Clarification was requested concerning the availability of and requirements
to attend the Motor Coach Inspection Course.
RESPONSE: The Motor Coach Inspection Course is available for municipal
officers. While the course is not mandatory for municipal officers, the officers
must take the course in order to conduct inspections of the motor coach.
The interested parties to the proposed rules in attendance at the public
hearing included Sergeant Lonnie Robinson and Patrolman R. Metcalf of the
Pasadena Police Department, Sergeant Russell Schmidt of the Austin Police
Department, and Les Findeisen of the Texas Motor Transportation Association.
The amendments are adopted pursuant to Texas Civil Statutes,
Article 6675d, Texas Transportation Code, Chapter 644, and Texas Government
Code, §411.006(4) and §411.018, which provide the director of the
Texas Department of Public Safety with the authority to establish rules for
the conduct of the work of the Texas Department of Public Safety, and which
authorize the director to adopt rules regulating the safe operation of commercial
motor vehicles.
§3.62. Regulations Governing Transportation Safety.
(a)
General. The director of the Texas Department of Public
Safety incorporates, by reference, the Federal Motor Carrier Safety Regulations,
Title 49, Code of Federal Regulations, Parts 382, 385, 386, 390-393, and 395-397
including amendments and interpretations thereto. The rules adopted herein
are to ensure that:
(1)
a commercial motor vehicle is safely maintained, equipped,
loaded, and operated;
(2)
the responsibilities imposed on a commercial motor
vehicle's operator do not impair the operator's ability to operate the vehicle
safely; and,
(3)
the physical condition of a commercial motor vehicle's
operator enables the operator to operate the vehicle safely.
(b)
Terms. Certain terms, when used in the federal regulations
as adopted in subsection (a) of this section, will be defined as follows:
(1)
the definition of motor carrier will be the same as that
given in Texas Transportation Code §643.001(6);
(2)
hazardous material shipper means a consignor, consignee,
or beneficial owner of a shipment of hazardous materials;
(3)
interstate or foreign commerce will include all movements
by motor vehicle, both interstate and intrastate, over the streets and highways
of this state;
(4)
department means the Texas Department of Public Safety;
(5)
director means the director of the Texas Department
of Public Safety or the designee of the director;
(6)
regional highway administrator means the director
of the Texas Department of Public Safety;
(7)
farm vehicle means any vehicle or combination of vehicles
controlled and/or operated by a farmer or rancher being used to transport
agriculture products, farm machinery, and farm supplies to or from a farm
or ranch;
(8)
commercial motor vehicle has the meaning assigned
by Texas Transportation Code §548.001(1);
(9)
foreign commercial motor vehicle has the meaning assigned
by Texas Civil Statutes, Article 6675c-2;
(10)
agricultural commodity is defined as an agricultural,
horticultural, viticultural, silvicultural, or vegetable product, bees and
honey, planting seed, cottonseed, rice, livestock or a livestock product,
or poultry or a poultry product that is produced in this state, either in
its natural form or as processed by the producer, including wood chips. The
term does not include a product which has been stored in a facility not owned
by its producer;
(11)
planting and harvesting seasons are defined as January
1 to December 31; and,
(12)
producer is defined as a person engaged in the business
of producing or causing to be produced for commercial purposes an agricultural
commodity. The term includes the owner of a farm on which the commodity is
produced and the owner's tenant or sharecropper.
(c)
Applicability.
(1)
The regulations shall be applicable to the following vehicles:
(A)
a vehicle with an actual gross weight, a registered gross
weight, or a gross weight rating in excess of 26,000 pounds when operating
intrastate;
(B)
a farm vehicle with an actual gross weight, a registered
gross weight, or a gross weight rating in excess of 48,000 pounds when operating
intrastate;
(C)
a vehicle designed to transport more than 15 passengers,
including the driver; and,
(D)
a vehicle transporting hazardous material requiring a placard.
(2)
a motor carrier transporting household goods
for compensation in intrastate commerce in a vehicle not defined in Texas
Transportation Code §548.001(1) is subject to the record keeping requirements
in 49 Code of Federal Regulations, Part 395 and the hours of service requirements
specified in this subchapter.
(3)
a foreign commercial motor vehicle that is owned or
controlled by a person or entity that is domiciled in or a citizen of a country
other than the United States.
(4)
a contract carrier transporting the operating employees
of a railroad on a road or highway of this state in a vehicle designed to
carry 15 or fewer passengers.
(5)
All regulations contained in Title 49, Code of Federal
Regulations, Parts 382, 385, 386, 390-393 and 395-397, and all amendments
thereto pertaining to interstate drivers and vehicles are also adopted except
as otherwise excluded.
(6)
Nothing in this section shall be construed to prohibit
an employer from requiring and enforcing more stringent requirements relating
to safety of operation and employee health and safety.
(d)
Exemptions. Exemptions to the adoption in subsection (a)
of this section were made pursuant to Texas Transportation Code §644.052,
Texas Civil Statutes, Article 6675d, §5 (as authorized by Senate Bill
370 and House Bill 1418), and §5 (as authorized by Senate Bill 1486),
and §3A and are adopted as follows:
(1)
Such regulations shall not apply to the following vehicles
when operated intrastate:
(A)
a vehicle used in oil or water well servicing or drilling
which is constructed as a machine consisting in general of a mast, an engine
for power, a draw works, and a chassis permanently constructed or assembled
for such purpose or purposes;
(B)
a mobile crane which is an unladen, self-propelled vehicle
constructed as a machine used to raise, shift, or lower weights;
(C)
a vehicle transporting a seed cotton module; or,
(D)
concrete pumps.
(2)
Drivers in intrastate commerce will be permitted
to drive 12 hours following eight consecutive hours off duty.
(3)
Drivers in intrastate commerce who are not transporting
hazardous materials and were regularly employed in Texas as commercial vehicle
drivers prior to August 28, 1989, are not required to meet the medical standards
contained in the federal regulations.
(A)
For the purpose of enforcement of this regulation, those
drivers who reached their 18th birthday on or after August 28, 1989, shall
be required to meet all medical standards.
(B)
The exceptions contained in this paragraph shall not be
deemed as an exemption from drug testing requirements contained in Title 49,
Code of Federal Regulations, Part 382.
(4)
The maintenance of any type of government form,
separate company form, driver's record of duty status, or a driver's daily
log is not required if the vehicle is operated within a 150 air-mile radius
of the driver's normal work reporting location if;
(A)
the owner has another method by which he keeps, as a business
record, the date, time and location of the delivery of product or service
so that a general record of the driver's hours of service may be compiled;
or
(B)
another law requires or specifies the maintenance of delivery
tickets, sales invoices, or other documents which show the date of delivery
and quantity of merchandise delivered, so that a general record of the driver's
hours of service may be compiled; and
(C)
the business records generally include the following information:
(i)
the time the driver reports for duty each day;
(ii)
the total number of hours the driver is on duty each day;
(iii)
the time the driver is released from duty each day; and
(iv)
the total time on duty for the preceding seven days in
accordance with Title 49, Code of Federal Regulations, Part 395.8(j)(2) for
drivers used for the first time or intermittently.
(5)
The provisions of Title 49, Code of Federal
Regulations, §395.3 shall not apply to drivers transporting agricultural
commodities in intrastate commerce for agricultural purposes within a 150
air-mile radius from the source of the commodities or the distribution point
for the farm supplies during planting and harvesting seasons.
(6)
Unless otherwise specified, a motor carrier transporting
household goods for compensation in intrastate commerce in a vehicle not defined
in Texas Transportation Code §548.001(1) is subject to the record keeping
requirements in Title 49, Code of Federal Regulations, Part 395 and the hours
of service requirements specified in this subchapter.
(7)
Unless otherwise specified, a contract carrier is
subject only to Title 49, Code of Federal Regulations, Part 391, except 391.11(b)(4)
and Subpart E, Parts 393, 395, and 396, except §396.17.
(e)
Exceptions. Exceptions adopted by the director of the Texas
Department of Public Safety not specified in Texas Transportation Code, §644.053,
are as follows:
(1)
Title 49, Code of Federal Regulations, Part 393.86, requiring
rear-end protection shall not be applicable provided the vehicle was manufactured
prior to September 1, 1991 and is used solely in intrastate commerce.
(2)
Drivers of vehicles under this section operating in
intrastate transportation shall not be permitted to drive after having worked
and/or driven for 70 hours in any consecutive seven-day period.
(3)
Drivers of vehicles operating in intrastate transportation
claiming the 150 mile radius exemption in subsection(d)(4) of this section
must return to the work reporting location and be released from work within
12 consecutive hours.
(4)
Title 49, Code of Federal Regulations, Part 391.11b(l),
is not adopted for intrastate drivers. The minimum age for an intrastate driver
shall be 18 years of age.
(5)
Title 49, Code of Federal Regulations, Part 391.1lb(2),
is not adopted for intrastate drivers. An intrastate driver must have successfully
passed the examination for a Texas Commercial Driver's License and be a minimum
age of 18 years old.
(6)
The Alcohol Testing Regulations of Title 49, Code
of Federal Regulations, Part 382 will become effective January 1, 1996, for
intrastate drivers.
(7)
The Drug Testing Regulations of Title 49, Code of
Federal Regulations, Part 382, as in effect on December 21, 1990, under Part
391.81, remain in effect under this adoption of Part 382.
(8)
Texas Transportation Code, §547.401 and §547.404,
concerning brakes on trailers weighing 15,000 pounds gross weight or less
take precedence over the brake requirements in the federal regulations for
trailers of this gross weight specification unless the vehicle is required
to meet the requirements of Federal Motor Vehicle Safety Standard No. 121
(49 Code of Federal Regulations 571.121) applicable to the vehicle at the
time it was manufactured.
(9)
Texas Transportation Code, Chapter 642, concerning
identifying markings on commercial motor vehicles shall take precedence over
Title 49, Code of Federal Regulations, Part 390.21, for vehicles operated
in intrastate commerce.
(10)
Title 49, Code of Federal Regulations, Part 390.23
(Relief from Regulations), is adopted for intrastate motor carriers with the
following exceptions:
(A)
Title 49, Code of Federal Regulations, Part 390.23(a)(2)
is not applicable to intrastate motor carriers making residential deliveries
of heating fuels, public utilities as defined in the Public Utility Regulatory
Act, the Gas Utility Regulatory Act, and the Texas Water Code and charged
with the responsibility for maintaining essential services to the public to
protect health and safety provided the carrier:
(i)
documents the type of emergency, the duration of the emergency,
and the drivers utilized; and
(ii)
maintains the documentation on file for a minimum of six
months.
(B)
The requirements of Title 49, Code of Federal Regulations,
Parts 390.23(c)(1) and (2), for intrastate motor carriers shall be:
(i)
the driver has met the requirements of Texas Transportation
Code §644; and
(ii)
the driver has had at least eight consecutive hours off-duty
when the driver has been on duty for 15 or more consecutive hours, or the
driver has been on duty for more than 70 hours in seven days.
(f)
Vision Waiver. Under this section the Texas Department
of Public Safety may provide a waiver for a person who is otherwise disqualified
under Title 49, Code of Federal Regulations, Part 391.41(b)(10) provided that
intrastate drivers meet the vision standards specified in § 16.9 of this
title (relating to Qualifications to Drive in Intrastate Commerce).
(1)
Applications for a waiver shall be accepted by the Texas
Department of Public Safety's Motor Carrier Bureau.
(2)
Waivers will be approved by the director or his designee
and issued in conjunction with the medical examiner's certificate required
by Title 49, Code of Federal Regulations, Part 391.43.
(3)
Waivers granted under this paragraph are valid for
a period not to exceed two years after the date of the medical examiner's
physical examination of the vision waiver applicant.
(4)
Applications for renewals will be granted provided
the applicant continues to meet the vision standards adopted by the Texas
Department of Public Safety (intrastate drivers must meet vision standards
specified in §16.9 of this title, relating to Qualifications to Drive
in Intrastate Commerce) and all other requirements of Title 49, Code of Federal
Regulations, Part 391.43.
(5)
Applicants denied a waiver may appeal the decision
of the department by contacting the director, in writing, within 20 days after
receiving notification of the denial. The request for an appeal must contain
the name, address and driver's license number of the applicant, the reasons
why the waiver should be granted, and include all pertinent documents which
support the reasons why the waiver should be granted. The denial is stayed
pending the review of the director. The decision of the director is final.
(g)
Authority to Enforce.
(1)
An officer of the department may enter or detain on a highway
or at a port of entry a motor vehicle that is subject to Texas Transportation
Code §644 and Texas Civil Statutes, Article 6675d.
(2)
An officer of the department may prohibit the further
operation of a vehicle on a highway or at a port of entry if the vehicle or
operator of the vehicle is in violation of a federal safety regulation or
rule adopted under Texas Transportation Code, §644, and Texas Civil Statutes,
Article 6675d, by declaring the vehicle or operator out-of-service using the
North American Standard Uniform Out-of-Service Criteria as a guideline.
(3)
Police officers from any of the following Texas cities
meeting the training and certification requirements contained in subsection
(h) of this section and certified by the department may enter or detain on
a highway or at a port of entry within the municipality a motor vehicle subject
to Texas Transportation Code §644 and Texas Civil Statutes, Article 6675d:
(A)
a municipality with a population of 100,000 or more;
(B)
a municipality with a population of 25,000 or more, any
part of which is located in a county with a population of 2.4 million or more;
or,
(C)
a municipality any part of which is located in a county
bordering the United Mexican States.
(4)
A certified police officer from an authorized
municipality may prohibit the further operation of a vehicle on a highway
or at a port of entry within the municipality if the vehicle or operator of
the vehicle is in violation of a federal safety regulation or rule adopted
under Texas Transportation Code, §644, and Texas Civil Statutes, Article
6675d, by declaring the vehicle or operator out-of-service using the North
American Standard Uniform Out-of-Service Criteria as a guideline.
(h)
Municipal Certification Requirements.
(1)
Police officers from an authorized municipality may be
trained and certified to enforce the federal safety regulations provided the
municipality:
(A)
executes a Memorandum of Understanding with the department
concerning the working policies and procedures of the inspection program whereby
the resources of all agencies will be maximized, duplication of efforts will
be minimized, and uniformity in the inspection program will be maintained;
(B)
implements a program that ensures their officers are conducting
the inspections following the guidelines approved by the department;
(C)
implements a program that ensures their officers perform
the required number of inspections annually to maintain the officers' certification;
(D)
agrees to suspend immediately any officer that fails to
maintain their certification or that fails to perform the inspections following
the guidelines approved by the department;
(E)
provides a list to the department by January 31st of each
year of the officers that have been suspended and are no longer certified;
(F)
provides all roadside inspection data to the department
through electronic systems that are compatible with the department's system
within 30 days of the inspection.
(2)
Failure to comply with the provisions of the
Memorandum of Understanding or the training, officer certification, or data-sharing
requirements by the municipality may constitute grounds to decertify the municipality's
authority to enforce the federal safety regulations.
(i)
Training and Certification Requirements.
(1)
Minimum standards. Police officers from the municipalities
specified in subsection (g) of this title and certified to enforce this article
must meet the following standards:
(A)
successfully complete the North American Standard Roadside
Inspection Course;
(B)
participate in an on-the-job training program following
each course with a certified officer and perform a minimum of 30 level one
inspections.
(2)
Hazardous materials. Police officers desiring
to enforce the Hazardous Materials Regulations must:
(A)
successfully complete the North American Standard Roadside
Inspection Course;
(B)
successfully complete a Basic Hazardous Materials Course;
(C)
participate in an on-the-job training program following
each course with a certified officer and perform a minimum of 16 level one
inspections.
(3)
Cargo Tank Specification. Police officers desiring
to enforce the Cargo Tank Specification requirements must:
(A)
successfully complete the North American Standard Roadside
Inspection Course;
(B)
successfully complete a Basic Hazardous Materials Course;
(C)
successfully complete a Cargo Tank Inspection Course:
(D)
participate in an on-the-job training program following
each course with a certified officer and perform a minimum of 16 level one
inspections.
(4)
Motor Coach. Police officers desiring to enforce
motor coach requirements must:
(A)
successfully complete the North American Standard Roadside
Inspection Course;
(B)
successfully complete a Motor Coach Inspection Course;
(C)
participate in an on-the-job training program following
each course with a certified officer and perform a minimum of 24 level one
inspections.
(5)
Training provided by the department. When the
training is provided by the Texas Department of Public Safety, the department
shall collect fees in an amount sufficient to recover from municipalities
the cost of certifying its peace officers. The fees shall include:
(A)
the per diem costs of the instructors established in accordance
with the Appropriations Act regarding in-state travel;
(B)
the travel costs of the instructors to and from the training
site;
(C)
all course fees charged to the department;
(D)
all costs of supplies; and
(E)
the cost of the training facility, if applicable.
(6)
Training provided by other training entities.
A public or private entity desiring to train police officers in the enforcement
of the Federal Motor Carrier Safety Regulations must:
(A)
submit a schedule of the courses to be instructed;
(B)
submit an outline of the subject matter in each course;
(C)
submit a list of the instructors and their qualifications
to be used in the training course;
(D)
submit a copy of the examination;
(E)
submit an estimate of the cost of the course;
(F)
receive approval from the director prior to providing the
training course;
(G)
provide a list of all police officers attending the training
course, including the police officer's name, rank, agency, social security
number, dates of the course, and the examination score; and
(H)
receive from each police officer or municipality the cost
of providing the training course(s).
(j)
Maintaining Certification.
(1)
To maintain certification to conduct inspections and enforce
the federal safety regulations, a municipal officer must:
(A)
Perform a minimum of 32 Level I or Level V inspections
per calendar year.
(B)
If the officer is certified to perform hazardous materials
inspections, at least eight inspections (Levels I or II) shall be conducted
on vehicles containing non-bulk quantities of hazardous materials.
(C)
If the officer is certified to perform cargo tank/bulk
packaging inspections, at least eight inspections (Levels I or II) shall be
conducted on vehicles transporting hazardous materials in cargo tanks.
(D)
If the officer is certified to perform motorcoach/bus inspections,
at least eight of the inspections shall be conducted on motorcoaches/buses.
(2)
To maintain certification, an officer must attend
minimum refresher training approved by the department once each year.
(3)
In the event an officer does not perform the minimum
number of inspections within a calendar year, his or her certification shall
be suspended.
(4)
To be recertified, an officer shall pass the applicable
examinations which may include the North American Standard Inspection, the
General Hazardous Materials Inspection Course, the Cargo Tank/Bulk Packaging
Inspection Course, and/or the Motorcoach/Bus Inspection Course and repeat
the specified number of inspections with a certified officer.
(5)
any officer failing any examination, or failing to
successfully demonstrate proficiency in conducting inspections after allowing
any certification to lapse will be required to repeat the entire training
process as outlined in subsection (i) of this section.
(k)
Safety Audit Program. The rules in this subsection, as
authorized by Texas Transportation Code §644.155, establish procedures
to determine the safety fitness of motor carriers, assign safety ratings,
take remedial actions when necessary, assess administrative penalties when
required, and prohibit motor carriers receiving a safety rating of "unsatisfactory"
from operating a commercial motor vehicle. The department will use the Compliance
Review Audit to determine the safety fitness of motor carriers and to assign
safety ratings. The safety fitness determination will be assessed on intrastate
motor carriers and the intrastate operations of interstate motor carriers
based in Texas.
(1)
Definitions specific to the Safety Audit Program are as
follows:
(A)
Compliance Review means an on-site examination of motor
carrier operations to determine whether a motor carrier meets the safety fitness
standard.
(B)
Culpability means an evaluation of the blame worthiness
of the violator's conduct or actions.
(C)
Imminent Hazard means any condition of vehicle, employees,
or commercial vehicle operations which is likely to result in serious injury
or death if not discontinued immediately.
(D)
Satisfactory Safety Rating means that a motor carrier has
in place and functioning adequate safety management controls to meet the safety
fitness standard prescribed in Title 49, Code of Federal Regulation, Part
385.5. Safety management controls are adequate if they are appropriate for
the size and type of operation of the particular motor carrier.
(E)
Conditional Safety Rating means a motor carrier does not
have adequate safety management controls in place to ensure compliance with
the safety fitness standard that could result in the occurrences listed in
Title 49, Code of Federal Regulations, Part 385.5(a) through (k).
(F)
Unsatisfactory Safety Rating means a motor carrier does
not have adequate safety management controls in place to ensure compliance
with the safety fitness standard which has resulted in occurrences listed
in Title 49, Code of Federal Regulations, Part 385.5(a) through (k).
(2)
Inspection of Premises.
(A)
Authority to Inspect. An officer or employee of the department
who has been certified by the director may enter a motor carrier's premises
to inspect lands, buildings, and equipment and copy or verify the correctness
of any records, reports or other documents required to be kept or made pursuant
to the regulations adopted by the director in accordance with Texas Transportation
Code§644.155.
(B)
Entry of Premises. The officer or employee of the department
may conduct the inspection:
(i)
at a reasonable time;
(ii)
on stating the purpose of the inspection; and
(iii)
by presenting to the motor carrier;
(I)
appropriate credentials; and
(II)
a written statement from the department to the motor carrier
indicating the officer's or employee's authority to inspect.
(C)
Civil and Criminal Penalties for Refusal to Allow Inspection.
(i)
A person who does not permit an inspection authorized under
Texas Transportation Code §644.104, is liable to the state for a civil
penalty not to exceed $1,000. The director may request that the attorney general
sue to collect the penalty in the county in which the violation is alleged
to have occurred or in Travis County.
(ii)
The civil penalty is in addition to the criminal penalty
provided by Texas Transportation Code §644.151.
(iii)
Each day a person refuses to permit an inspection constitutes
a separate violation for purposes of imposing a penalty.
(3)
Compliance Review Audits. A Compliance Review
will be conducted based upon the following criteria:
(A)
unsatisfactory safety assessment factor evaluations;
(B)
written complaints concerning unsafe operation of commercial
motor vehicles which are substantiated by valid documentation. Complaints
for the purpose of this criterion include involvement in a fatality accident;
(C)
follow-up investigations of motor carriers that have been
the subject of an enforcement action, an administrative penalty, or the assessment
of an Unsatisfactory Safety Rating from the immediately previous Compliance
Review;
(D)
requests from the Legislature and state or federal agencies;
and,
(E)
request for a safety rating determination.
(4)
Safety Fitness Rating.
(A)
A safety fitness rating is based on the degree of compliance
with the safety fitness standard for motor carriers.
(B)
A safety rating will be determined following a compliance
review using the factors prescribed in Title 49, Code of Federal Regulations,
Part 385.7. The following safety ratings will be assigned:
(i)
Satisfactory Safety Rating;
(ii)
Conditional Safety Rating;
(iii)
Unsatisfactory Safety Rating.
(C)
The provisions of Title 49, Code of Federal Regulations,
Part 385.13 relating to "Unsatisfactory safety rating - Prohibition on transportation
of hazardous materials and passengers" is hereby adopted by the department
and is applicable to intrastate motor carriers.
(D)
The department will provide written notification to the
motor carrier of the assigned safety rating within 15 days of the completion
of the compliance review.
(i)
Notification of a "conditional" or "unsatisfactory" rating
will include a list of those items for which immediate corrective action must
be taken.
(ii)
A notification of an "unsatisfactory" safety rating will
also include a notice that the motor carrier will be subject to the provisions
of Title 49, Code of Federal Regulations, Part 385.13 which prohibit motor
carriers rated "unsatisfactory" from operating a commercial motor vehicle
to transport:
(I)
hazardous materials requiring placarding under Part 172,
Subpart F, of Title 49, Code of Federal Regulations; or
(II)
more than 15 passengers, including the driver.
(E)
In addition to any criminal penalties provided by statute,
a motor carrier assessed an unsatisfactory safety rating who continues to
operate in violation of the notifications to cease operations under Title
49, Code of Federal Regulations, Part 385.13 will be subject to a civil suit
filed by the Attorney General from a request from the director of the Texas
Department of Public Safety. Each day of operation constitutes a separate
violation.
(F)
Request for a change in a safety rating. A request for
a change in a safety rating must be submitted to the Manager of the Motor
Carrier Bureau within the time schedule provided in Parts 385.15 and 385.17
of Title 49, Code of Federal Regulations.
(G)
The safety rating assigned to a motor carrier will be made
available to the public upon request.
(H)
Requests should be addressed to the Texas Department of
Public Safety, Motor Carrier Bureau, Box 4087, Austin, Texas 78773-0521. All
requests for disclosure of safety rating must be made in writing and will
be processed under the Texas Public Information Act.
(l)
Administrative Penalties.
(1)
The compliance review may result in the initiation of an
enforcement action based upon the number and degree of seriousness of the
violations discovered during the review as well as those factors listed in
Title 49, Code of Federal Regulations, Part 385.7. As a result of the enforcement
action, the department may impose an administrative penalty against a motor
carrier who violates a provision of Texas Civil Statutes, Article 6675d or
a provision of the Texas Transportation Code Title 7, Subtitle B, Chapter
522 (relating to Commercial Driver's License), Subtitle C, Chapters 541 -
600 (relating to the Rules of the Road),and Subtitle F, Chapter 644 (relating
to Commercial Motor Vehicles), including any amendments not codified in the
Texas Transportation Code. Each of these provisions relates to the safe operation
of a commercial motor vehicle under Texas Transportation Code §644.153(b).
(2)
The department shall have discretion in determining
the appropriate amount of the administrative penalty assessed for each violation.
A penalty under this section may not exceed the maximum penalty provided for
violations of a similar federal safety regulation as provided under 49 United
States Code, §521(b), §5123, and Title 49, Code of Federal Regulations,
Parts 386.81, 386.82, and Appendix A to Part 386.
(A)
Record keeping violations. These are violations of the
administrative requirements of the Federal Safety Regulations. A penalty shall
not exceed $550 for each violation. Each day of a violation shall constitute
a separate violation, except that the total of all administrative penalties
assessed against any violator for all violations relating to any single violation
shall not exceed $2,750.
(B)
Serious pattern of safety violations. These violations
are considered the middle range of violations between those of record keeping
noncompliance and a willful case of negligence. These violations are not an
isolated event but rather a tolerated pattern of noncompliance. An administrative
penalty may be assessed in an amount not to exceed $1,100 for each violation;
except that the maximum penalty for each such pattern of safety violations
shall not exceed $11,000.
(C)
Substantial health or safety violations. These are violations
which could reasonably lead to or have resulted in serious personal injury
or death. An administrative penalty may be assessed in an amount not to exceed
$11,000 for each violation.
(D)
Employee non-record keeping violations. These are acts
committed by a driver of a non-record keeping nature that are considered to
be of gross negligence or a reckless disregard for safety. The employee may
be assessed an administrative penalty in an amount not to exceed $1,100.
(E)
Hazardous materials violations. A person that knowingly
violates a hazardous material regulation is liable for an administrative penalty
of at least $250 but not more than $27,500 for each violation. A person acts
knowingly when the person has actual knowledge of the facts giving rise to
the violation, or a reasonable person acting in the circumstance and exercising
reasonable care would have that knowledge. A separate violation occurs for
each day the violation, committed by a person that transports or causes to
be transported hazardous material, continues.
(3)
The amount of the administrative penalty shall
be determined by taking into account the following factors:
(A)
nature of the violation;
(B)
circumstances of the violation;
(C)
extent of the violation;
(D)
gravity of the violation;
(E)
degree of culpability;
(F)
history of prior offenses;
(G)
any hazard to the health or safety of the public caused
by the violation or violations;
(H)
the economic benefit gained by the violation(s);
(I)
ability to pay;
(J)
the amount necessary to deter future violations;
(K)
effect on ability to continue to do business;
(L)
economic harm to property or the environment caused by
the violation;
(M)
efforts to correct the violation; and
(N)
such other matters as justice and public safety may require.
(m)
Notification.
(1)
The department will notify a motor carrier of an enforcement
action by the issuance of a claim letter. The notification will consist of
the requirements of Title 49, Code of Federal Regulations, Part 386.11.
(2)
The notification may be submitted to the motor carrier's
principal place of business by certified mail, first class mail, or personal
delivery. A notification sent by mail shall be presumed to have been received
by the motor carrier five days after the date of the mailing.
(3)
The motor carrier must reply within 20 days of receipt
of a claim letter. The reply must contain:
(A)
an admission or denial of each allegation of the claim
and a concise statement of facts constituting each defense;
(B)
a statement of whether the motor carrier requests an administrative
hearing concerning the occurrence of the violation, the amount of the penalty,
or both the occurrence of the violation and the amount of the penalty;
(C)
a statement of whether the motor carrier requests an informal
hearing under subsection (1) of this section;
(D)
a statement of whether the motor carrier accepts the determination
and recommended penalty;
(E)
a statement of whether the motor carrier wishes to negotiate
the terms of payment or settlement of the amount of the penalty, or the terms
and conditions of the order; and
(F)
a certification that the reply has been served in accordance
with Title 49, Code of Federal Regulations, Part 386.31.
(n)
Informal hearing.
(1)
Request. If requested, the department will hold an informal
hearing to discuss a penalty recommended under this section. Such hearing
will be scheduled and conducted by the manager of the Motor Carrier Bureau
or the director's designee.
(2)
Procedure. An informal hearing shall not be subject
to rules of evidence and civil procedure except to the extent necessary for
the orderly conduct of the hearing. The department will summarize the nature
of the violation and the penalty, and discuss the factual basis for such.
The motor carrier will be afforded an opportunity to respond to the allegations
verbally and/or in writing.
(3)
Resolution. In the event matters are resolved in the
motor carrier's favor, the manager or the director's designee will send the
carrier written notification that the proposed penalty is withdrawn.
(4)
Modified penalty. If matters are resolved resulting
in a modified penalty, the manager or the director's designee may prepare
a settlement agreement as provided by subsection (p) of this section.
(5)
Failure to resolve. If matters are not resolved in
the informal hearing, the department will initiate a formal enforcement action
as provided by subsection (o) of this section.
(o)
Formal Enforcement Action.
(1)
If the motor carrier requests an administrative hearing,
fails to respond in a timely manner to the claim letter as identified in subsection
(m) of this section, or does not negotiate a settlement, the department may
initiate a formal enforcement action as a contested case. The department will
provide written notice of such action to the motor carrier.
(2)
A contested case under this subsection will be governed
by Texas Government Code, Chapter 2001, subchapters C and D, and Chapter 29
of this title (relating to General Rules of Practice and Procedure), and not
by Title 49, Code of Federal Regulations, Part 386, Subparts D and E.
(p)
Collection and Settlement.
(1)
If the motor carrier does not pay the amount of the penalty
and the enforcement of the penalty is not stayed, the director may refer the
matter to the attorney general for collection of the amount of the penalty.
(2)
At any time prior to the date on which a final order
is issued by the director, the department and the motor carrier may agree
to enter into a compromise settlement agreement. The compromise settlement
agreement shall be signed by the motor carrier and the director, or the director's
designee and will reflect that the motor carrier consents to the assessment
of a specific administrative penalty or other action by the department against
the motor carrier.
(3)
Simultaneously with the filing of a compromise settlement
agreement, the motor carrier shall remit a cashier's check or money order
to the Texas Department of Public Safety.
(q)
Installment Payment of Administrative Penalty.
(1)
A person(s), firm, or business may, upon approval of the
director or the director's designee, be allowed to make installment payments
of an administrative penalty, costs, fees, expenses, and reasonable and necessary
attorney's fees incurred by the state upon submission of adequate proof of
inability to pay. An application shall be submitted on a form approved by
the department.
(2)
The person(s), firm, or business requesting the installment
agreement must submit adequate documentation to support the request and make
all relevant financial records of the person(s), firm, or business available
to the department for inspection and verification.
(3)
In the event of a default of the installment agreement
by the person(s), firm, or business, then the remaining balance of the installment
agreement will be due immediately.
(r)
Suspension and revocation by the Texas Department of Transportation.
(1)
The director will determine whether the department will
request the Texas Department of Transportation to suspend or revoke a registration
issued by the Texas Department of Transportation based upon the department's
compliance review.
(2)
This determination may be based upon the following:
(A)
an unsatisfactory safety rating under Title 49, Code of
Federal Regulations, Part 385;
(B)
multiple violations of Texas Transportation Code §644
and Texas Civil Statutes, Article 6675d;
(C)
multiple violations of one of these rules; and/or,
(D)
multiple violations of the Uniform Traffic Act or Transportation
Code.
(3)
Once the determination has been made the director
will forward a letter to the executive director of the Texas Department of
Transportation requesting said department initiate a suspension/revocation
proceeding against the motor carrier.
(4)
Any suspension/revocation action initiated by the
Texas Department of Transportation, pursuant to this section, shall be administered
in the manner specified by the rules of the Texas Department of Transportation.
This agency hereby certifies that the rule as adopted has been reviewed by
legal counsel and found to be a valid exercise of the agency's legal authority
Issued in Austin, Texas on March 24, 1999. Dudley M. Thomas Director Texas
Department of Public Safety
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed with the Office of the Secretary of State on April
19, 1999.
TRD-9902276
Dudley M. Thomas
Director
Texas Department of Public Safety
Effective date: May 9, 1999
Proposal publication date: December 18, 1998
For further information, please call: (512) 424-2135
37 TAC §3.63
The Texas Department of Public Safety adopts the repeal of
§3.63, concerning Route Designations for Non-Radioactive Hazardous Materials
on Texas Highways, without changes to the proposed text as published in the
December 18, 1998, issue of the
Texas Register
(23 TexReg 12876).
The justification for this repeal will be to make the public aware that
the Department of Public Safety is no longer the state routing agency for
non-radioactive hazardous materials. That responsibility has been transferred
to the Texas Department of Transportation.
No comments were received regarding repeal of the section.
The repeal is adopted pursuant to Texas Civil Statutes, Article
6675d, Texas Transportation Code, Chapter 644, and Texas Government Code,
§411.006(4), which provides the director of the Texas Department of Public
Safety with the authority to establish rules for the conduct of the work of
the Texas Department of Public Safety, and which authorize the director to
adopt rules regulating the safe operation of commercial motor vehicles.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on April
19, 1999.
TRD-9902275
Dudley M. Thomas
Director
Texas Department of Public Safety
Effective date: May 9, 1999
Proposal publication date: December 18, 1998
For further information, please call: (512) 424-2135
37 TAC §3.71, §3.75
The Texas Department of Public Safety adopts the repeal of
§3.71 and §3.75, concerning the statutory provisions regarding certain
registered vehicles and the exception of those vehicles from the requirements
of undergoing a vehicle inspection and displaying a valid inspection certificate,
without changes to the proposed text as published in the December 18, 1998,
issue of the
Texas Register
(23 TexReg 12877).
The justification for the repeal will be a clearer interpretation and understanding
of the exemptions associated with the vehicle inspection program.
No comments were received regarding the repeal of these sections.
The repeals are adopted pursuant to Texas Government Code, §411.006(4),
which provides the director with the authority to adopt rules, subject to
commission approval, considered necessary for the control of the department.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on April
19, 1999.
TRD-9902274
Dudley M. Thomas
Director
Texas Department of Public Safety
Effective date: May 9, 1999
Proposal publication date: December 18, 1998
For further information, please call: (512) 424-2135
37 TAC §3.71
The Texas Department of Public Safety adopts new §3.71,
concerning vehicles exempt from the vehicle inspection program, without changes
to the proposed text as published in the December 18, 1998, issue of the
The justification for this new section will be a clearer interpretation
and understanding of the exemptions associated with the vehicle inspection
program
No comments were received regarding the adoption of this new section.
The new section is adopted pursuant to Texas Government Code,
§411.006(4), which provides the director with the authority to adopt
rules, subject to commission approval, considered necessary for the control
of the department.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on April
19, 1999.
TRD-9902273
Dudley M. Thomas
Director
Texas Department of Public Safety
Effective date: May 9, 1999
Proposal publication date: December 18, 1998
For further information, please call: (512) 424-2135
37 TAC §3.102
The Texas Department of Public Safety adopts the repeal of
§3.102, concerning Reporting of Releases of Hazardous Materials by Carriers,
without changes to the proposed text as published in the December 18, 1998,
issue of the
Texas Register
(23 TexReg 12878).
The justification for the repeal of §3.102 is deemed necessary to
simplify the reporting requirements for motor carriers and railroad operators
who must also comply with the provisions of Title 49, Code of Federal Regulations,
§171.15 and §171.16. Texas Government Code, §411.018 authorizes
the department to establish rules for the reporting of hazardous materials
spills or incidents. The section also authorizes the department to adopt the
Federal Hazardous Materials Regulations which have been adopted by reference
in 37 TAC§3.59 (relating to Regulations Governing Transportation of Hazardous
Materials). Since the Hazardous Materials Regulations contain reporting requirements
which are applicable to both interstate and intrastate motor carriers, the
department believes that the requirements of §3.102 are duplicative and
therefore, not necessary.
No comments were received regarding the repeal of this section.
The repeal is adopted pursuant to Texas Government Code, §411.006(4)
and 411.018, which provides the director with the authority to establish rules
for the conduct of the work of the Texas Department of Public Safety, and
which authorizes the director to adopt provisions of the hazardous materials
regulations.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on April
19, 1999.
TRD-9902272
Dudley M. Thomas
Director
Texas Department of Public Safety
Effective date: May 9, 1999
Proposal publication date: December 18, 1998
For further information, please call: (512) 424-2135
Subchapter A. Investigation
37 TAC §§5.1-5.3
The Texas Department of Public Safety adopts the repeal of
§§5.1-5.3, concerning Criminal Law Enforcement, without changes
to the proposed text as published in the December 18, 1998, issue of the
The justification for this repeal will be the removal of unnecessary rules.
No comments were received regarding the repeal of these sections.
The repeals are adopted pursuant to Texas Government Code, §411.006(4),
which provides the director with the authority to adopt rules, subject to
commission approval, considered necessary for the control of the department.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on April
19, 1999.
TRD-9902271
Dudley M. Thomas
Director
Texas Department of Public Safety
Effective date: May 9, 1999
Proposal publication date: December 18, 1998
For further information, please call: (512) 424-2135
37 TAC §5.1
The Texas Department of Public Safety adopts new §5.1,
concerning Conduct of a Criminal Investigation, without changes to the proposed
text as published in the December 18, 1998, issue of the
Texas Register
(23 TexReg 12879).
The justification for this new section will be clarification of department
policy regarding criminal investigations.
No comments were received regarding the adoption of this new section.
The new section is adopted pursuant to Texas Government Code,
§411.006(4), which provides the director with the authority to adopt
rules, subject to commission approval, considered necessary for the control
of the department.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on April
19, 1999.
TRD-9902270
Dudley M. Thomas
Director
Texas Department of Public Safety
Effective date: May 9, 1999
Proposal publication date: December 18, 1998
For further information, please call: (512) 424-2135
37 TAC §5.11
The Texas Department of Public Safety adopts the repeal of
§5.11, concerning Expenditure Authorization, without changes to the proposed
text as published in the December 18, 1998, issue of the
Texas Register
(23 TexReg 12879).
The justification for this repeal will be the removal of unnecessary rules.
No comments were received regarding the repeal of this section.
The repeal is adopted pursuant to Texas Government Code, §411.006(4),
which provides the director with the authority to adopt rules, subject to
commission approval, considered necessary for the control of the department.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on April
19, 1999.
TRD-9902269
Dudley M. Thomas
Director
Texas Department of Public Safety
Effective date: May 9, 1999
Proposal publication date: December 18, 1998
For further information, please call: (512) 424-2135
37 TAC §5.21
The Texas Department of Public Safety adopts the repeal of
§5.21, concerning Expenditure of Imprest Funds, without changes to the
proposed text as published in the December 18, 1998, issue of the
Texas Register
(23 TexReg 12880).
The justification for this repeal will be the removal of unnecessary rules.
No comments were received regarding the repeal of this section.
The repeal is adopted pursuant to Texas Government Code, §411.006(4),
which provides the director with the authority to adopt rules, subject to
commission approval, considered necessary for the control of the department.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on April
19, 1999.
TRD-9902268
Dudley M. Thomas
Director
Texas Department of Public Safety
Effective date: May 9, 1999
Proposal publication date: December 18, 1998
For further information, please call: (512) 424-2135
37 TAC §§25.1-25.5, 25.13-25.15, 25.17, 25.18
The Texas Department of Public Safety adopts amendments to
§25.14, and §25.18, concerning Safety Responsibility Regulations,
with changes to the proposed text as published in the December 18, 1998, issue
of the
Texas Register
(23 TexReg 12882). Sections
25.1-25.5, 25.13, 25.15, and 25.17 are adopted without changes and will not
be republished.
The justification for these amendments will be to ensure that individuals
are fully informed regarding the obligations of both the department and Texas
motorists pursuant to the Motor Vehicle Safety Responsibility Act.
Amendments to these sections include the reformatting of subsections and
paragraphs in order to add and delete language intended to clarify action
the department may take regarding accidents, the filing of proof of financial
responsibility, and the processing of compliance-related items under the Motor
Vehicle Safety Responsibility Act.
Section 25.14 listed the incorrect statutory reference. Texas Civil Statutes
was repealed during the last legislative session and recodified as Texas Transportation
Code. Therefore, Texas Transportation Code is listed as the correct reference
in this adoption.
Section 25.18 Subsection (b) as previously proposed has been deleted and
subsection (c) reformatted to Subsection (b) as the Safety Responsibility
Bureau no longer has legislative or statutory authority to charge a filing
fee.
No comments were received regarding the adoption of these amendments.
These amendments are adopted pursuant to Texas Transportation
Code, Chapter 601, which provides that the department shall administer and
enforce this chapter.
§25.14.Appeals.
(a)
The appeals provisions in Texas Transportation Code, §601.158,
apply only to appeals under Texas Transportation Code, Chapter 601. The appeals
provisions in Texas Transportation Code §601.401, apply to all other
suspensions under the Act.
(b)
When the department is not served as required by law with
a stay order or injunction, no existing injunction or stay order shall operate
to suspend any act or order of the department until a copy signed by the court
or certified by the court clerk is received in the office of the department
at Austin.
(c)
Before a suspension can be lifted on a stay pending a trial
on the merits, where [
§25.18.Fees.
(a)
No statutory filing fee is required if:
(1)
financial responsibility by insurance is shown;
(2)
the party was legally parked or stopped;
(3)
nonconsent applies to the owner;
(4)
the party is not the owner of the vehicle;
(5)
the accident occurred on private property;
(6)
the parties are exempted from paying the fee by reason
of governmental immunity;
(7)
there is an affidavit of no suspended items; or
(8)
there is no probability of judgment.
(b)
Proof of financial responsibility maintained by a certificate
of insurance must be filed on Form SR-22. When a party's license and registrations
have been suspended, a $50 reinstatement fee and proof of financial responsibility
are prerequisites for the withdrawal of such suspension. When a party's license
and registrations are suspended in several cases and proof of financial responsibility
is required in each case, only one $50 reinstatement fee is required.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on April
19, 1999.
TRD-9902267
Dudley M. Thomas
Director
Texas Department of Public Safety
Effective date: May 9, 1999
Proposal publication date: December 18, 1998
For further information, please call: (512) 424-2135
Chapter 143.
Executive Clemency
Subchapter D. Reprieve of Execution
37 TAC §143.43
The Policy Board of the Texas Board of Pardons and Paroles
adopts an amendment to §143.43, concerning the application process to
the Board for a recommendation to the governor of a reprieve from execution,
with two changes in response to comments to the proposed text as published
in the February 19, 1999, issue of the
Texas Register
(24 TexReg 1145).
The amendment is adopted for the purpose of clarifying the procedures and
changing the time deadlines for submitting the applications to the Board in
order to give the Board members more time to consider the applications.
There were several written comments to the proposed amended rule by two
parties, Ms. Maurie Levin and Mr. Bruce P. Bower. Mr. Bill Habern and Ms.
Cynthia Orr, acting on behalf of the Texas Criminal Defense Lawyers Association,
adopted Ms. Levin's written comments on the proposed amendments to the rule.
Ms. Levin commented that the 25 day deadline before the execution date
for submission of applications for clemency would not give inmates or their
attorneys adequate time to prepare because the execution date is set by the
state district judge many times only 30 days in advance, and because the inmates
and their attorneys are not timely informed of the execution date. In addition,
Ms. Levin commented that, because of the nature of the clemency process in
Texas, it is unrealistic to expect inmates' attorneys to apply for clemency
before the appellate courts have had time to rule at least until the first
round of habeas appeals has been completed. According to Ms. Levin, "that
stage is often not reached until mere weeks before the execution." Ms. Levin
comments that a 10-day or 14-day deadline would "give the attorney a more
realistic chance of filing a complete, timely clemency application."
Ms. Levin also appeared before the Board to comment at the public hearing
scheduled as part of the Policy Board meeting on March 31, 1999, pursuant
to §2001.029 of the Texas Government Code. In response to questions,
Ms. Levin estimated that most death row inmates have had between three and
ten prior execution dates before the final execution date is set.
In order to address Ms. Levin's concerns, the Policy Board is changing
the provision in subsection (a) to provide that applications for clemency
be submitted 21 days (rather than 25 days) before the execution date. It is
suggested that, before the execution date is set, attorneys for death row
inmates could provide written notice of representation to the state district
judge who presided over the capital murder trial, as well as contacting the
appropriate district clerk who maintains the records of the case. A request
could be made that the attorney be given immediate notice by the clerk of
the court of any execution date set by the trial judge. By these actions,
the inmate's attorney can expect to receive timely notice that the execution
date has been set, and the attorney will then be able to make timely application
to the Board for clemency on behalf of the inmate.
Ms. Levin's final comment was that the proposed deletion of language in
subsection (b)(1), which provided for a vote of the majority of the Board
in order to recommend that the Governor grant a reprieve injects a "lack of
clarity" into the process. In response to Ms. Levin's comment, the Policy
Board is adding language to subsection (b) to track the language in Article
IV, Section 11 of the Texas Constitution and clarify that a recommendation
for a reprieve must be made by a majority of the Board in written and signed
form.
Written comments were also received from Mr. Bruce P. Bower, who testified
in the public hearing for himself and on behalf of the Austin Peace and Justice
Coalition which requested a public hearing pursuant to §2001.029 of the
Texas Government Code. Mr. Bower suggested that the Board deadline for applications
for reprieve should remain at five days prior to the execution date, given
the reduced mental capacity of death row inmates and the growing number of
wrongful convictions. In addition, Mr. Bower commented that procedures should
be changed to allow the submission of applications by fax and by e-mail. Mr.
Bower also suggested that the Board should provide assistance to those who
request assistance in making application to the Board for reprieves.
In response to Mr. Bower's comments, the Policy Board adopts a change in
the proposed rule to provide for an application deadline of 21 days prior
to the execution date. Regarding Mr. Bower's comment on whether the Board
accepts applications by fax or electronic mail, the Board has accepted applications
for clemency review by facsimile. Although attorneys for inmates are free
at any time to communicate with the Board via electronic mail, at this time
legal counsel would not advise the Board to accept applications for clemency
by that method, given the difficulty of ensuring that documents sent by that
medium remain secure. The Policy Board declines to make that change at this
time.
Regarding Mr. Bower's suggestion that Board assistance be provided for
applicants, there is no set application form required. While any suggestions
to improve the application process are welcomed by the Board, any assistance
to the inmate by the Board in the preparation of the clemency application
could well require the Board to render legal advice, presenting a possible
conflict of interest situation on the part of Board personnel. State attorneys
are prohibited from rendering legal representation to private citizens. Therefore,
the Policy Board declines to adopt the suggestion at this time.
The amendment is adopted under the Texas Constitution, Article
IV, Section 11, and the Code of Criminal Procedure, Article 48.01, which provides
the Board with authority to recommend reprieves, commutations of punishments
and pardons to the governor.
§143.43. Procedure in Capital Reprieve Cases.
(a)
The written application in behalf of a convicted person
seeking a board recommendation to the governor of a reprieve from execution
must be delivered to the Texas Board of Pardons and Paroles, Clemency Section,
Austin, Texas, not later than the twenty-first calendar day before the execution
is scheduled. Otherwise, the applicant's recourse will be directly to the
governor.
(b)
The board shall consider and decide applications for reprieve
from execution. Upon review, a majority of the board, or a majority thereof,
in written and signed form, may:
(1)
recommend to the governor a reprieve from execution;
(2)
not recommend a reprieve from execution; or
(3)
set the matter for a hearing as soon as practicable
and at a location convenient to the board and the parties to appear before
it.
(c)-(e)
(No change.)
(f)
After the conclusion of the hearing, the board shall render
its decision, reached by majority vote, within a reasonable time, which decision
shall be either to:
(1)
recommend to the governor a reprieve from execution;
(2)
not recommend a reprieve from execution; or
(3)
recess the proceedings without rendering a decision
on the merits, if a reprieve has been granted by the governor or if a court
of competent jurisdiction has granted a stay of execution.
(g)-(h)
(No change.)
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on April
20, 1999.
TRD-9902319
Laura McElroy
General Counsel
Texas Board of Pardons and Paroles
Effective date: May 11, 1999
Proposal publication date: February 19, 1999
For further information, please call: (512) 463-1883
37 TAC §143.57
The Policy Board of the Texas Board of Pardons and Paroles
adopts an amendment to §143.57, concerning the application process to
the Board for a recommendation to the governor of a Commutation of Death Sentence
to a Lesser Penalty, with two changes in response to comments to the proposed
text as published in the February 19, 1999, issue of the
Texas Register
(24 TexReg 1146).
The amendment is adopted for the purpose of clarifying the procedures and
changing the time deadlines for submitting the applications to the Board in
order to give Board members more time to consider the applications.
There were several written comments to the proposed amended rule by two
different parties, Ms. Maurie Levin and Mr. Bruce P. Bower. Mr. Bill Habern
and Ms. Cynthia Orr on behalf of the Texas Criminal Defense Lawyers Association
adopted Ms. Levin's comments on the proposed amendments to the rule and on
behalf of the Association requested a public hearing pursuant §2001.029
of the Texas Government Code.
Ms. Levin commented that the 25-day deadline before the execution date
for submission of applications for clemency would not give inmates or their
attorneys adequate time to prepare because the execution date is set by the
state district judge many times only 30 days in advance, and because the inmates
and their attorneys are not timely informed of the execution date. In addition,
Ms. Levin commented that, because of the nature of the clemency process in
Texas, it is unrealistic to expect inmates' attorneys to apply for clemency
before the appellate courts have had time to rule at least until the first
round of habeas appeals has been completed. According to Ms. Levin, "that
stage is often not reached until mere weeks before the execution." Ms. Levin
comments that a ten-day or 14-day deadline would "give the attorney a more
realistic chance of filing a complete, timely clemency application."
Ms. Levin also appeared before the Board to comment at the public hearing
scheduled as part of the Policy Board meeting on March 31, 1999, pursuant
to §2001.029 of the Texas Government Code. In response to questions,
Ms. Levin estimated that most death row inmates have had between three and
10 prior execution dates before the final execution date is set.
In order to address Ms. Levin's concerns, the Policy Board is changing
the provision in paragraph (2)(A) to provide that applications for clemency
be submitted 21 days (rather than 25 days) before the execution date. It is
suggested that, before the execution date is set, attorneys for death row
inmates could provide written notice of representation to the state district
judge who presided over the capital murder trial, as well as contacting the
appropriate district clerk who maintains the records of the case. A request
could be made that the attorney be given immediate notice by the clerk of
the court of any execution date set by the trial judge. By these actions,
the inmate's attorney can expect to receive timely notice that the execution
date has been set, and the attorney will then be able to make timely application
to the Board for clemency on behalf of the inmate.
Ms. Levin's final comment was that the proposed deletion of language in
paragraph (2)(B), which provided for a vote of the majority of the Board in
order to recommend that the Governor grant a reprieve injects a "lack of clarity"
into the process. In response to Ms. Levin's comment, the Policy Board is
adding language to paragraph (2) (B) to track the language in Article IV,
Section 11 of the Texas Constitution and clarify that a recommendation for
a commutation must be made by a majority of the Board in written and signed
form.
Written comments were also received from Mr. Bruce P. Bower, who testified
in the public hearing for himself and on behalf of the Austin Peace and Justice
Coalition which requested a public hearing pursuant to §2001.029 of the
Texas Government Code. Mr. Bower suggested that the Board deadline for applications
for commutation should remain at five days prior to the execution date, given
the reduced mental capacity of death row inmates and the growing number of
wrongful convictions. In response to Mr. Bower's comments, the Policy Board
adopts a change in the proposed rule to provide for an application deadline
of 21 days prior to the execution date.
Mr. Bower also commented and suggested that the Board adopt procedures
requiring a full public hearing on all applications for clemency from death
row inmates, list specific reasons for its actions and that the Board hold
itself to set listed criteria when making clemency decisions, as detailed
in legislation (House Bill 397 and House Bill 398) presently pending before
the 76th Legislature. As the Policy Board is taking steps to change the clemency
procedures by these adopted rules others in the near future, the Policy Board
declines to make those specific changes at this time. In addition, the above
changes have been the subject of recent litigation at the state and federal
level, by which the Board's present clemency procedures were upheld by state
and federal courts. The Board awaits the final decisions of those cases, which
are on appeal.
In addition, Mr. Bower commented that procedures should be changed to allow
the submission of applications by fax and by e-mail. Mr. Bower also suggested
that the Board should provide assistance to those who request assistance in
making application to the Board for commutations of sentence.
Regarding Mr. Bower's comment on whether the Board accepts applications
by fax or electronic mail, the Board has accepted applications for clemency
review by facsimile. Although attorneys for inmates are free at any time to
communicate with the Board via electronic mail, at this time legal counsel
would not advise the Board to accept applications for clemency by that medium,
given the difficulty of ensuring that documents sent by electronic mail remain
secure. The Policy Board declines to make that change at this time.
Regarding Mr. Bower's suggestion that Board assistance be provided for
applicants, there is no set application form required. While any suggestions
to improve the application process are welcomed by the Board, any assistance
to the inmate by the Board in the preparation of the clemency application
could well require the Board to render legal advice, presenting a possible
conflict of interest situation on the part of Board personnel. State attorneys
are prohibited from rendering legal representation to private citizens. Therefore,
the Policy Board declines to adopt the suggestion at this time.
The amendment is adopted under the Texas Constitution, Article
IV, Section 11, and the Code of Criminal Procedure, Article 48.01, that provide
the Board with authority to recommend reprieves, commutations of punishments
and pardons to the governor.
§143.57. Commutation of Death Sentence to Lesser Penalty.
The board will consider recommending to the governor a commutation
of death sentence to a sentence of life imprisonment or the appropriate maximum
penalty that can be imposed upon receipt of:
(1)
a request from the majority of the trial officials of
the court of conviction; or
(2)
a written request of the convicted person or representative
setting forth all grounds upon which the application is based, stating the
full name of the convicted person, the county of conviction, and the execution
date.
(A)
The written application in behalf of a convicted person
seeking a board recommendation to the governor of commutation of the death
sentence to a lesser penalty must be delivered to the Texas Board of Pardons
and Paroles, Clemency Section, Austin, Texas, not later than the twenty-first
calendar day before the day the execution is scheduled.
(B)
The board shall consider and decide applications for commutation
of the death sentence to a lesser penalty. Upon review, a majority of the
board, or a majority thereof, in written and signed form, may:
(i)
recommend to the governor the commutation of the death
sentence to a lesser penalty;
(ii)
not recommend commutation of the death sentence to a
lesser penalty; or
(iii)
set the matter for a hearing pursuant to §143.43
of this Chapter (relating to Procedure in Capital Reprieve Cases).
This agency hereby certifies that the adoption
has been reviewed by legal counsel and found to be a valid exercise of the
agency's legal authority.
Filed with the Office of the Secretary of State on April
20, 1999.
TRD-9902318
Laura McElroy
General Counsel
Texas Board of Pardons and Paroles
Effective date: May 11, 1999
Proposal publication date: February 19, 1999
For further information, please call: (512) 463-1883
Subchapter B. Terms and Conditions of Parole
Subchapter D. Traffic Supervision
Subchapter E. Requirements For Displaying Vehicle Inspection Certificate
Subchapter G. Hazardous Materials Incidents
Chapter 5.
Criminal Law Enforcement
Subchapter B. Stored or Impounded Vehicles
Subchapter C. Criminal Law Enforcement Imprest Fund
Chapter 25.
Safety Responsibility Regulations
criminal
] charges are filed arising out of
the accident, the party appealing a decision under the Act must file either
proof of financial responsibility, Form SR-22, or evidence of dismissal. Such
party will be notified of these requirements in writing to the attorney of
record or to the aggrieved party.
Part V.
Texas Board of Pardons and Paroles
Subchapter E. Commutation of Sentence
Chapter 145.
Parole