Part 3.
OFFICE OF THE ATTORNEY GENERAL
Chapter 59.
COLLECTIONS
1 TAC §§59.1 - 59.3
The Office of the Attorney General (OAG) proposes amendments
to 1 TAC §§59.1, 59.2 and 59.3, relating to the referral and collection
of delinquent obligations owed to the state. Section 59.1 pertains to lawsuit
authorization by local taxing authorities that includes a standard form for
a local taxing authority to authorize the OAG to represent it in tax collection
suits as provided in the tax code. Section 59.2 sets uniform guidelines for
state agency referral of delinquent collections to the OAG. Section 59.3 sets
standards and guidelines for the reporting of delinquent obligations owed
to the state to the OAG as required by law.
Section 59.1 as amended specifies that the rule also applies to special
purpose districts referenced under the Texas Tax Code, Title 3, changes the
name of the OAG division to which the authorization is given to the Bankruptcy
and Collections Division and reflects this change on the form that is part
of this section.
Section 59.2 as amended changes the name of the OAG division receiving
referrals of delinquent state agency obligations to the Bankruptcy and Collections
Division, and refers to the reporting requirements adopted in §59.3.
Section 59.3 as amended changes the name of the OAG division receiving
referrals of delinquent state agency obligations to the Bankruptcy and Collections
Division and adopts accounting standards for uncollectible accounts previously
promulgated by the Comptroller of Public Accounts.
David Randell, Assistant Attorney General, has determined that for the
first five-year period in which these sections as proposed are in effect there
will be no fiscal implications for state or local government as a result of
enforcing or administering the sections.
Mr. Randell has also determined that the proposed amendments will not have
an adverse economic effect on small businesses because the amendments of these
rules impose no additional burdens on anyone. There is no anticipated economic
cost to persons who are required to comply with these rules as proposed.
Mr. Randell has also determined that for the first five-year period in
which these sections as proposed are in effect, the anticipated public benefit
is better administration of the process for collection referral and reporting
of delinquent obligations owed to the state, without increased costs to the
state.
Comments may be submitted, in writing, no later than 30 days from the date
of this publication to David Randell, Assistant Attorney General, Office of
the Attorney General, P.O. Box 12548, Austin, Texas 78711-2548 or by telephone
(512) 475-4882 or by e-mail to david.randell@oag.state.tx.us.
The amendment to §59.1 is proposed under the Texas Tax Code,
Title 3, which the OAG interprets as authorizing the Office of the Attorney
General to adopt rules reasonable and necessary to implement Title 3. The
amendment to §59.2 is proposed under §2107.002(c), Texas Government
Code. The amendment to §59.3 is proposed under §2107.005, Texas
Government Code.
Sections 321.309, 322.206 and 323.309, Texas Tax Code, are affected by
the proposed amendment to 1 TAC §59.1. Section 2107.002, Texas Government
Code, is affected by the proposed amendment to 1 TAC §59.2. Section 2107.005,
Texas Government Code, is affected by the proposed amendment to 1 TAC §59.3.
§59.1.Lawsuit Authorization by Local Taxing Authorities.
(a)
For the purposes of this section, authority means a municipality,
a rapid transit authority, a regional transit authority, including a subregional
transportation authority, a municipal mass transit department, [
(b)
An authorization by an authority to the
Office of
the Attorney General
[
(c)
The authorization to the
Office of the Attorney General
[
Figure: 1 TAC §59.1(c)
§59.2.Collection Process: Uniform Guidelines and Referral of Delinquent Collections.
(a)
Definitions. The following words and terms, when used in
this section, shall have the following meanings, unless the context clearly
indicates otherwise.
(1)
Attorney general--The Office of the Attorney General of
Texas, acting through the
Bankruptcy and
Collections Division of
the agency.
(2)
Debtor--Any person or entity liable or potentially liable
for an obligation owed to
the state or
a state agency or against
whom a claim or demand for payment has been made.
(3) - (7)
(No change.)
(b)
Uniform guidelines for state agencies in collecting delinquent
obligations.
(1) - (2)
(No change.)
(3)
All demand letters should be mailed in an envelope bearing
the notation "address correction requested" in conformity with 39 Code of
Federal Regulations
, Chapter III, Subchapter A, Part 3001, Subpart C,
Appendix A, §911
[
(4)
Where state law
allows an
[
(5)
(No change.)
(6)
Prior to referral of the obligation to the attorney general,
the agency shall:
(A) - (B)
(No change.)
(C)
verify that the obligation is not
legally
uncollectible
or uncollectible as a practical matter
. Agencies shall adopt procedures
to ensure that referred obligations are not uncollectible. By way of example,
the following illustrations apply.
(i)
Bankruptcy. Agencies should prepare and timely file a proof
of claim
, when appropriate,
in the bankruptcy case of each debtor,
subject to reasonable tolerances adopted by the agency. Copies of all such
proofs of claims filed should be sent to the attorney general absent the granting
of a variance. Agencies shall maintain records of notices of bankruptcy filings,
dismissals and discharge orders received from the United States bankruptcy
courts to enable the agency to ascertain whether the collection of the claim
is subject to the automatic stay provisions of the bankruptcy code or whether
the debt has been discharged. Agencies may seek the assistance of the attorney
general in bankruptcy collection matters where necessary, including the filing
of a notice of appearance and preparation of a proof of claim.
(ii)
Limitations. If the obligation is subject to an applicable
limitations provision that would prevent
suit
[
(iii)
Corporations. If a corporation has been dissolved,
has been
[
(iv) - (v)
(No change.)
[(vi)
Indicia of inability to pay. Where circumstances
demonstrate a permanent inability of a debtor to pay or make payments toward
the obligation, the obligations should not be referred.]
(7)
Not later than the
120th
[
(8)
(No change.)
(9)
An agency should utilize the "warrant hold" procedures
of the Comptroller of Public Accounts authorized by the Texas Government Code, §403.055,
to ensure that no treasury warrants are issued to debtors until the debt is
paid.
Please see Accounting Policy Statement 28, "Reporting of Debts
and Certain Tax Delinquencies to the State," issued April 16, 1999 and reissued
October 6, 2000 available on the Comptroller of Public Accounts' website at
www.cpa.state.tx.us.
(c)
Referral to attorneys.
(1)
Suit on the obligation by in-house attorneys.
(A)
Agencies seeking to use in-house attorneys to collect delinquent
obligations through court proceedings must submit a written request to the
attorney
general's Bankruptcy and Collections Division
[
(B)
After an obligation is referred to agency attorneys employed
as in-house counsel, the obligation shall be reduced to judgment against all
entities legally responsible for the obligation where[
(C) - (D)
(No change.)
(2)
Referral to the attorney general.
(A)
(No change.)
(B)
Agencies may refer individual accounts to the attorney
general after the procedures set forth in subsection (a)(6)-(8) of this section.
Individual accounts referred to the attorney general should include by the
following:
(i) - (iv)
(No change.)
(v)
copies of any permit application, security,
final
orders, contracts, grants,
or instrument giving rise to the obligation.
(C) - (D)
(No change.)
(3)
Referral to collection firms or private attorneys.
(A)
Prior approval of attorney general.
Except as provided
by §2107.003, Texas Government Code, no
[
(i) - (ii)
(No change.)
(B)
Requirements of proposed contracts with private persons
presented for attorney general approval.
In addition to information required
by other state laws, all
[
(i) - (iii)
(No change.)
(C)
Suggested requirements of proposed contracts with private
persons presented for attorney general approval. All contracts for collection
of delinquent obligations should contain provisions stating the following:
(i)
that litigation on the delinquent account is prohibited
unless the private person obtains specific written authorization from the
agency
and the attorney general
and complies with the requirements
of this rule;
(ii) - (vi)
(No change.)
(vii)
that any dispute arising under the contract be submitted
to a court of competent jurisdiction in Texas, unless any other venue is statutorily
mandated, in which case the specific venue statute will apply
, subject
to any alternative dispute resolution procedures adopted by the agency pursuant
to Chapter 2009, Texas Government Code
.
§59.3.Reporting Delinquent Obligations Owed to the State.
(a)
Definitions. The following words and terms, when used in
this section, shall have the following meanings, unless the context clearly
indicates otherwise.
(1)
Attorney general--The Office of the Attorney General of
Texas, acting through the
Bankruptcy and
Collections Division of
the agency.
(2) - (7)
(No change.)
(8)
Uncollectible--As it refers to delinquent obligations means
that circumstances indicate a permanent inability of a debtor to make payments
toward the obligation; the debtor has been legally relieved of the obligation;
or the debt is legally unenforceable. Such circumstances include, but are
not limited to, bankruptcy discharge, the death of the debtor, [
(b)
(No change.)
(c)
Required contents of report. The following total figures
are required to be reported.
(1)
(No change.)
(2)
Total accounts. The numerical sum of all individual accounts
maintained by the agency
, to be identified into collectible and uncollectible
categories
. It includes all accounts, whether or not certain account
debtors are liable for the same agency obligation.
(3) - (5)
(No change.)
(d)
Optional contents of report. Many agencies already file
and continue to file annual reports with the Office of the Attorney General
pursuant to the requirements set forth in the attorney general's section of
the General Appropriation Bill, Texas House Bill 1, 72nd Legislature, First
Called Session, Article V, §74, 1991 Texas Session Law Service 1036,
and its predecessors. Some agencies produce computer-generated reports containing
more detailed information regarding the agency's debt. To the extent these
reports are computer generated and in summary form, the fact that reports
contain additional information beyond that contemplated by this rule is inconsequential.
The attorney general encourages agencies to provide as much detail in summary
form as is practicable in complying with the requirements of this rule. The
attorney general recognizes that state agencies have varying needs and capabilities
with regard to the maintenance of financial information. By way of example
and not by limitation, such additional information in the annual debt report
may include:
(1)
(No change.)
(2)
total
delinquent
accounts receivable;
(3)
the average debt per
delinquent
account;
(4) - (7)
(No change.)
(e)
(No change.)
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 August 10, 2001.
TRD-200104654
Susan D. Gusky
Assistant Attorney General
Office of the Attorney General
Earliest possible date of adoption: September 23, 2001
If you have any questions regarding this publication, please call A.G.
Younger, Agency Liaison, at (512) 463-2110.
Chapter 87.
NOTARY PUBLIC
Subchapter B. REJECTION AND REVOCATION
1 TAC §87.43
The Office of the Secretary of State proposes an amendment
to §87.43 concerning "good cause" as that phrase relates to the rejection
of an application or the revocation of a notary public commission. The purpose
of the amendment is to conform §87.43 to amendments to Chapter 406 of
the Government Code that were made by the 77th Texas Legislature in House
Bill 3134.
Guy Joyner, Chief, Legal Support Unit, Statutory Documents Section has
determined that for the first five year period that the proposed amendments
are in effect there will be no fiscal implications for state or local governments
as a result of enforcing the amendment. There is no effect on large businesses,
small businesses or micro-businesses. There is no anticipated additional economic
cost to individuals who are required to comply with the amendment as proposed.
There is no anticipated impact on local employment.
Mr. Joyner also has determined that for each year of the first five years
that the amendment is in effect the public benefit anticipated as a result
of enforcing the amendment will be a reduction in the number of notaries public
who falsely represent or advertise themselves as attorneys.
Comments on the proposed amendment may be submitted to Guy Joyner, Chief,
Legal Support Unit, Statutory Documents Section, P.O. Box 12887, Austin, Texas
78711-2887.
The amendment is proposed under the Texas Government Code, §2001.004
(1) and the Notary Public Act, Texas Government Code, §406.023(a) which
provide the Secretary of State with the authority to prescribe and adopt rules.
The amendment affects the Texas Government Code, §406.009 and §406.017.
§87.43.Good Cause.
(a)
Good cause as stated in §87.41 of this title (relating
to Rejection of Application and Revocation of Commission) may include, but
not be limited to, the following:
(1)
a final conviction for a crime involving moral turpitude;
(2)
any false statement knowingly made in an application for
appointment or reappointment as a notary public;
(3)
a final conviction for the violation of any law concerning
the regulation of the conduct of notaries public in this state or any other
state;
(4)
use of the phrase "notario" or "notario publico" to
advertise the services of a notary public or any other false representation
as an attorney as specified in
[
(5)
a failure to fully and faithfully discharge any of the
duties or responsibilities required of a notary public;
(6)
the unauthorized practice of law;
(7)
a failure by the notary public to utilize a correct notary
seal as described in the Notary Public Act, §406.013;
(8)
a failure to administer an oath or affirmation as required
by law;
(9)
the collection of a fee in excess of those authorized by
the Texas Government Code, §406.024;
(10)
the execution of any certificate as a notary public containing
a statement known to the notary public to be false;
(11)
a failure to complete the acknowledgment at the time the
notary public's signature and seal are affixed to the document;
(12)
the advertising in any manner whatsoever that the notary
public is an immigration specialist, immigration consultant, or any other
title or description reflecting an expertise in immigration matters;
(13)
the use of false or misleading advertising of either an
oral or written nature, whereby the notary public has represented or indicated
that he or she has duties, rights, powers, or privileges that are not possessed
by law;
(14)
taking an acknowledgment when the person whose signature
is acknowledged did not personally appear before the notary at the time of
taking the acknowledgment;
(15)
previous disciplinary action against the notary public
in accordance with these sections; and
(16)
a failure to comply with, or violation of, a previous
disciplinary action taken pursuant to §87.48 of this title (relating
to Other Disciplinary Action).
(b)
A crime involving moral turpitude means the commission
of a crime mala in se (an offense that is evil or wrong from its own nature
or by natural law irrespective of statute) which may include, but not be limited
to:
(1)
Class A and B type misdemeanors; and
(2)
felony convictions which have not been set aside, or for
which no pardon or certificate of restoration of citizenship rights have been
granted.
(c)
The dismissal and discharge of proceedings under either
the misdemeanor adult probation and supervision law or the adult probation,
parole, and mandatory supervision law shall not be considered a conviction
for the purposes of determining good cause.
(d)
Final Class C type misdemeanor convictions shall not be
considered in determining good cause.
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 August 9, 2001.
TRD-200104597
Geoffrey S. Connor
Assistant Secretary of State
Office of the Secretary of State
Earliest possible date of adoption: September 23, 2001
For further information, please call: (512) 475-0775
Chapter 355.
MEDICAID REIMBURSEMENT RATES
Subchapter J. PURCHASED HEALTH SERVICES
or
]
a county
or special purpose district
empowered to adopt a sales
and use tax pursuant to the Texas Tax Code, Title 3.
attorney general
] of Texas to include
such authority as a plaintiff in a suit seeking a recovery of delinquent sales
and/or use taxes, penalties, and interest due under the Texas Tax Code, Title
2, Chapter 151, and under Title 3, Chapters 321, 322, [
and
] 323,
324 and 325
shall constitute a blanket authorization to the attorney
general to include such authority in any suit brought by the attorney general
pursuant to said chapters. The blanket authorization shall remain in effect
unless a written notice of revocation of authority is sent by United States
certified or registered mail to the Office of the Attorney General of Texas,
Bankruptcy and
Collections Division, P.O. Box 12548, Austin, Texas 78711-2548.
attorney general
] of Texas should be substantially in the
form of the sample set out as follows.
§265(d)
]. If an address correction
is provided by the United States Postal Service, the demand letter should
be re-sent to that address prior to the referral procedures described herein.
Demand should be made upon every debtor prior to referral of the account to
the attorney general. The final demand letter should include a
statement
[
notation
], where practical, that
the debt, if not
paid, will be referred
[
a copy is being sent
] to the attorney
general.
gives the
]
agency [
the right
] to record a lien securing the obligation, the
agency shall
file the
[
cause to be filed a
] lien in
the appropriate records of the county where the debtor's principal place of
business, or, where appropriate, the debtor's residence, is located or in
such county as may be required by law. The lien shall be filed as soon as
the obligation becomes delinquent or as soon as is practicable. After referral
of the delinquency to the attorney general
, any lien securing the indebtedness
may not be released, except on full payment of the obligation, without the
approval of the attorney representing the agency in the matter.
collection
] as a matter of law, the obligation should not be referred unless circumstances
indicate that limitations has been tolled or is otherwise inapplicable.
is
] in liquidation under Chapter 7 of the United
States Bankruptcy Code,
or
has forfeited its corporate privileges
or charter, or, in the case of a foreign corporation, had its certificate
of authority revoked, the obligation should [
not
] be referred unless
circumstances indicate that the account is
clearly uncollectible
[
nonetheless collectible
].
30th
] day
after the date
an obligation becomes delinquent
[
a state agency
determines that normal agency collection procedures for an obligation owed
to the agency have failed
], the agency shall report the uncollected
and delinquent obligation to the attorney general for further collection efforts
as hereinafter provided.
See §2107.004, Texas Government Code.
general
]. Upon [
the
] written approval [
of the attorney general
], a state agency may
file
[
bring
] suit
to collect
[
upon
] a delinquent obligation through an attorney
serving as a full-time employee of the agency. Where circumstances make it
impractical to secure attorney general approval for every delinquent obligation
upon which a lawsuit is to be filed, a state agency may apply to the attorney
general for an authorization to bring suit on particular types of obligations
through attorneys employed full-time by the agency. Such authorization, if
given, must be renewed at the beginning of each fiscal year. A state agency
shall comply with reporting requirements
adopted by
[
that
] the attorney general
in 1 TAC §59.3
[
may adopt
pursuant to Texas Civil Statutes, Article 6252-5e
].
:
] the lawsuit
and judgment will make collection of the obligation more likely and the expenditure
of agency resources in recovering judgment on the obligation is justified.
No
] agency
may contract with, retain, or employ any person other than a full-time employee
of the agency to collect a delinquent obligation without prior written approval
of the attorney general. Any existing arrangements must receive the written
approval of the attorney general to be renewed or extended in any fashion.
All
] contracts for collection of
delinquent obligations must contain or be supported by a proposal containing
the following:
of
]
the
revocation of a
charter of a debtor corporation without assets,
etc.
Please see Accounting Policy Statement 27, "Accounting for Uncollectible
Accounts," issued October 13, 1998, available on the Comptroller of Public
Accounts' website at www.cpa.state.tx.us.
Part 4.
OFFICE OF THE SECRETARY OF STATE
the failure to comply with
]
the Texas Government Code, §406.017 [
(b) or (c), concerning the
restrictions imposed on the advertising of notary services in a foreign language
and the prohibition against the literal translation of notary public into
Spanish
] .
Part 15.
HEALTH AND HUMAN SERVICES COMMISSION