Part 1.
TEXAS DEPARTMENT OF HOUSING AND COMMUNITY AFFAIRS
Chapter 1.
ADMINISTRATION
Subchapter A. GENERAL POLICIES AND PROCEDURES
10 TAC §1.10
The Texas Department of Housing and Community Affairs (the
Department) proposes amendments to §1.10, concerning the Department's
Public Comment Procedures and Topics at Public Hearings and Meetings. This
section is proposed to implement new legislation enacted by the 78th Legislative
Session and now codified as §2306.0661(f), Texas Government Code.
Ms. Edwina P. Carrington, Executive Director, has determined that for the
first five-year period the section is in effect the public benefit anticipated
as a result of enforcing the section will be to allow for more meaningful
public input to the Department. There will be no effect on small businesses.
There is no anticipated economic cost to persons who are required to comply
with the amendment as proposed.
Comments on the proposal may be submitted to Ms. Sarah Anderson, Director
of the Office of Housing Research, Planning, and Communications, Texas Department
of Housing and Community Affairs, P.O. Box 13941, Austin, Texas 78711-3941,
sarah.anderson@tdhca.state.tx.us, or by fax (512) 475-3746 within thirty days
of this notice.
This section is proposed pursuant to the authority of the Texas
Government Code, Chapter 2306.
No other code, articles or statutes are affected by this section.
§1.10.Public Comment Procedures and Topics at Public Hearings and Meetings.
(a)
Purpose. The purpose of this section is to establish procedures
for hearing public comments on issues being presented at meetings open to
the public held by the Texas Department of Housing and Community Affairs
and topics to be considered
in accordance with
Sections
[
(b)
Definitions. The following words and terms, when used in
this section, shall have the following meanings, unless the context clearly
indicates otherwise.
(1)
Board--The
Governing Board
[
(2)
Department--The Texas Department of Housing and Community
Affairs.
(3)
Meeting--A deliberation between a quorum of the board of
the Department, or between a quorum of the board of the Department and another
person, as defined under §551.001(4) of the Texas Government Code.
(4)
Open Meetings Act--Chapter 551, Texas Government Code.
(c)
Procedures.
(1)
Members of the public may give testimony at the beginning
of a board meeting.
(2)
Members of the public may also give testimony on any agenda
item of a board meeting after the presentation made by department staff and
motions made by the board.
The Board may consider the staff's presentation
for purposes of this rule to be staff's written presentation in the Board's
meeting book and posted on the Department's website.
(3)
The Department shall provide witness affirmation forms
at each board meeting for the public to complete in order to give public testimony.
(d)
Reasonable limits.
The Department may set reasonable
limits on the number, frequency and length of presentations before it, but
may not unfairly discriminate among speakers for or against a particular point
of view.
(1)
The board may consider the following when limiting the
amount of time and the frequency each member of the public is allowed to provide
testimony:
(A)
the number of witness affirmations received;
(B)
the number of agenda items to be heard; and
(C)
the time duration for the meeting.
(2)
If the board limits the number of presentations, the board
will limit the number of presentations equally among those speakers that are
for a particular point of view and those speakers that are against a particular
point of view, if practical.
(e)
Topics. The Department shall
consider the following topics in relation to a proposed housing development:
(1)
the developer market study;
(2)
the location;
(3)
the compliance history of the developer;
(4)
the financial feasibility;
(5)
the appropriateness of the development's size
and configuration in relation to the housing needs of the community in which
the development is located;
(6)
the development's proximity to other low income
housing developments;
(7)
the availability of adequate public facilities
and services;
(8)
the anticipated impact on local school districts;
(9)
zoning and other land use considerations; and
(10)
any other topics that the board by rule determines
to be appropriate.
(f)
[
(1)
The notice requirements under the Open Meetings Act do
not apply to:
(A)
a statement of specific factual information given in response
to the inquiry; or
(B)
a recitation of existing policy in response to the inquiry.
(2)
Any deliberation of or decision about the subject of the
inquiry shall be limited to a proposal to place the subject on the agenda
for a subsequent meeting.
(g)
[
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 December 22, 2003.
TRD-200308854
Edwina P. Carrington
Executive Director
Texas Department of Housing and Community Affairs
Earliest possible date of adoption: February 8, 2004
For further information, please call: (512) 475-4595
Chapter 257.
EXECUTIVE COMMITTEE FOR OFFICE OF RURAL COMMUNITY AFFAIRS
Subchapter A. POLICIES AND PROCEDURES
10 TAC §257.10
The Office of Rural Community Affairs (Office) proposes the
creation of §257.10 of the Texas Administrative Code to provide an appeals
process for persons protesting the award of a contract by the Office. (For
purposes of this section contract does not include grant contracts.) Section
2155.132 of the Texas Government Code requires the Texas Building and Procurement
Commission (TBPC) to formulate a procurement plan for the purchase of goods
and services for state agencies. Pursuant to that directive the TBPC has adopted
regulations that require state agencies to provide a process to appeal an
agency's decision when it selects a vendor or consultant.
The proposed rule provides for an appeal to be in writing, sworn to and
filed within 10 days of the award of the contract with the Executive Director.
They establish required elements in the written appeal and allow for an appeal
of the staff's determination to be made to the Executive Director and ultimately
to the Executive Committee.
The Office's Chief Financial Officer, Robert McGlasson, has determined
that for the first five-year period the section is in effect there will be
no fiscal implications for state or local government as a result of enforcing
or administering the proposed rule. Mr. McGlasson has also determined that
for each year of the first five years the proposed rule is in effect the public
benefit anticipated will be a public review of the process to assure a proper
and fair process has been administered in the award of the contract. There
will not be an effect on small businesses. There is no economic cost to persons
who are required to comply with the proposed rule.
Comments on the proposal may be submitted in writing to J. Randel (Jerry)
Hill, General Counsel, P.O. Box 12877, Austin, Texas 78711, or by e-mail to
jhill@orca.state.tx.us, or by fax to (512) 936 6776. All requests for a public
hearing on the proposed rule must be received by J. Randel (Jerry) Hill, not
more than 15 calendar days after notice of the proposed rule has been published
in the
Texas Register.
The rule is proposed under §487.052 of the Texas Government
Code and implements §2155.132 of the Texas Government Code.
§257.10.Appeals Process to Award of Contract.
(a)
Any actual or prospective bidder, offeror, or contractor
who is aggrieved in connection with the solicitation, evaluation, or award
of a contract may formally protest to the Office of Rural Community Affairs,
hereinafter referred to as the Office. Such protests must be in writing and
received in the executive director's office within 10 working days after such
aggrieved person knows, or should have known, of the occurrence of the action
which is protested. Formal protests must conform to the requirements of this
subsection and subsection (c) of this section, and shall be resolved in accordance
with the procedure set forth in subsections (d) and (e) of this section. Copies
of the protest must be mailed or delivered by the protesting party to the
Office and other interested parties. For the purposes of this section, "interested
parties" means all vendors who have submitted bids or proposals for the contract
involved.
(b)
In the event of a timely protest or appeal under this section,
the Office shall not proceed further with the solicitation or with the award
of the contract unless the executive director, makes a written determination
that the award of the contract without delay is necessary to protect the best
interests of the state.
(c)
A formal protest must be sworn and contain:
(1)
a specific identification of the statutory or regulatory
provision(s) that the action complained of is alleged to have violated;
(2)
a specific description of each act alleged to have violated
the statutory or regulatory provision(s) identified in paragraph (1) of this
subsection;
(3)
a precise statement of the relevant facts;
(4)
an identification of the issue or issues to be resolved;
(5)
argument and authorities in support of the protest; and
(6)
a statement that copies of the protest have been mailed
or delivered to the Office and other identifiable interested parties.
(d)
The staff of the Office, hereinafter referred to as the
staff, shall have the authority, prior to appeal to the executive director,
to settle and resolve the dispute concerning the solicitation or award of
a contract. The staff may solicit written responses to the protest from other
interested parties.
(e)
If the protest is not resolved by mutual agreement, the
staff will issue a written determination on the protest.
(1)
If the staff determines that no violation of rules or statutes
has occurred, it shall so inform the protesting party, and other interested
parties by letter that sets forth the reasons for the determination.
(2)
If the staff determines that a violation of the rules or
statutes has occurred in a case where a contract has not been awarded, it
shall so inform the protesting party, and other interested parties by letter
which sets forth the reasons for the determination and the appropriate remedial
action.
(3)
If the staff determines that a violation of the rules or
statutes has occurred in a case where a contract has been awarded, it shall
so inform the protesting party, and other interested parties by letter which
sets forth the reasons for the determination, which may include ordering the
contract to be voided.
(f)
The staff's determination on a protest may be appealed
by the protesting party to the executive director. An appeal of the staff's
determination must be in writing and must be received in the executive director's
office no later than 10 working days after the date of the staff's determination.
The appeal shall be limited to review of the staff's determination. Copies
of the appeal must be mailed or delivered by the protesting party to the other
interested parties and must contain a certified statement that such copies
have been provided.
(g)
The executive director may confer with the general counsel
in the review of the matter appealed. The executive director may, in his/her
discretion, refer the matter to the executive committee for its consideration
at a regularly scheduled open meeting or issue a written decision on the protest.
(h)
When a protest has been appealed to the executive director
under subsection (f) of this section and has been referred to the executive
committee by the executive director under subsection (g) of this section,
the following requirements shall apply:
(1)
Copies of the appeal and responses of interested parties,
if any, shall be mailed to the executive committee.
(2)
All interested parties who wish to make an oral presentation
at the open meeting are requested to notify the general counsel at least 48
hours in advance of the open meeting.
(3)
The executive committee may consider oral presentations
and written documents presented by staff and interested parties. The chairman
shall set the order and amount of time allowed for presentations.
(4)
The executive committees' determination of the appeal shall
be by duly adopted resolution reflected in the minutes of the open meeting,
and shall be final.
(i)
Unless good cause for delay is shown or the executive committee
determines that a protest or appeal raises issues significant to procurement
practices or procedures, a protest or appeal that is not filed timely will
not be considered.
(j)
A decision issued either by the executive committee in
open meeting, or in writing by the executive director, shall be the final
administrative action of the Office.
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 December 22, 2003.
TRD-200308865
Robt. J. "Sam" Tessen
Executive Director
Office of Rural Community Affairs
Earliest possible date of adoption: February 8, 2004
For further information, please call: (512) 936-6710
Chapter 301.
GENERAL PROVISIONS
Subchapter A. DEFINITIONS
10 TAC §301.1
The Texas Residential Construction Commission (the "commission")
proposes for adoption a new rule at Title 10, Part 7, Chapter 301, Subchapter
A, Definitions, §301.1, concerning definitions to be used in construing
agency rules promulgated to implement the Texas Residential Construction Commission
Act, Title 16, Property Code.
Section 301.1, relating to definitions, defines words and terms that are
used in Part 7 of Title 10 of the Texas Administrative Code. It defines Accrual
or accrued, Act, Affiliate, Builder, Building and performance standards, Commission,
Construction defect, Executive Director, Home, ICC, Improvement to the interior
of an existing home when the cost of the work exceeds $20,000, Living space,
Local building official, Material improvement, Person, Statutory warranty,
State inspector, Third-party inspector and Transaction governed by the Act.
Stephen D. Thomas, Executive Director, has determined that for each year
of the first five-year period the proposed rule is in effect there will be
no fiscal implications for local government as a result of enforcing or administering
the proposed rule.
Mr. Thomas has also determined that for each year of the first five-year
period the proposed rule is in effect the public will benefit from the clarity
provided by the adoption of definitions that assist interested persons in
interpreting commission-promulgated rules.
Mr. Thomas has also determined that there will be no effect on large, small
and micro-businesses as a result of the adoption of the proposed rule.
Mr. Thomas has also determined that for each year of the first five-year
period the proposed rule is in effect there should be no effect on a local
economy; therefore, no local employment impact statement is required under
Administrative Procedure Act §2001.022.
Interested persons may submit written comments (16 copies) on the proposed
rule to Susan K. Durso, General Counsel, Texas Residential Construction Commission,
P.O. Box 13144, Austin, Texas, 78711. Comments may be submitted electronically
to
rulescomments@trcc.state.tx.us
. The deadline
for submission of comments is thirty (30) days from the date of publication
of the proposed rules in the
Texas Register
.
Comments should be organized in a manner consistent with the organization
of the proposed rule. The commission is particularly interested in comments
raised by the definition of "home" as it relates to the inclusion of a multi-unit
residential structure in which there is a transfer of fee simple title to
the homeowner, such as in the case of a townhouse or condominium.
The new rule is proposed to implement new legislation enacted during the
78th Legislative Session, Regular Session, House Bill 730 (Act effective Sept.
1, 2003, 78th Leg., R.S., ch. 458, §1.01), including Title 16, Property
Code. Section 408.001 of the Property Code provides general authority for
the commission to adopt rules necessary for the implementation of Title 16,
Property Code.
The proposed rule is being simultaneously adopted as an emergency rule
in the Emergency Rules section of this issue of the
Texas Register
.
The statutory provisions affected by the proposal are those set
forth in the Title 16, Property Code and House Bill 730, 78th Legislature,
R.S.
No other statutes, articles, or codes are affected by the proposal.
§301.1.Definitions.
The following words and terms, when used in rules promulgated by the
commission, shall have the following meanings, unless the context clearly
indicates otherwise.
(1)
Accrual or accrued--when a homeowner first becomes aware
that the property damage in the home is a potential construction defect.
(2)
Act--the Texas Residential Construction Commission Act,
Title 16, Property Code.
(3)
Affiliate--a person who directly or indirectly through
one or more intermediaries controls, is controlled by, or is under common
control with a specified person.
(4)
Builder--
(A)
as defined by Property Code §401.003, any business
entity or individual who, for a fixed price, commission, fee, wage, or other
compensation, constructs or supervises or manages the construction of:
(i)
a new home;
(ii)
a material improvement to a home, other than an improvement
solely to replace or repair a roof of an existing home; or
(iii)
an improvement to the interior of an existing home when
the cost of the work exceeds $20,000.
(B)
When required by the context the term may include:
(i)
an owner, officer, director, shareholder, partner, affiliate
or employee of the builder;
(ii)
a risk retention group governed by §21.54, Insurance
Code, that insures all or any part of builder's liability for the cost to
repair a residential construction defect; and
(iii)
a third-party warranty company and its administrator.
(5)
Building and performance standards--those standards adopted
by the commission pursuant to §430.001 of the Act.
(6)
Commission--the Texas Residential Construction Commission.
(7)
Construction defect--as defined in §401.004 of the
Act:
(A)
the failure of the design, construction, or repair of a
home, an alteration of or a repair, addition, or improvement to an existing
home, or an appurtenance to a home to meet the applicable warranty and building
and performance standards during the applicable warranty period; and
(B)
any physical damage to the home, an appurtenance to the
home, or real property on which the home or appurtenance is affixed that is
proximately caused by that failure.
(8)
Executive Director--the individual employed by the commission
pursuant to §407.001 of the Act, which may include a person delegated
by the Executive Director to perform a specific function on behalf of the
Executive Director.
(9)
Home--the real property and improvements and appurtenances
thereto for a single-family residential dwelling or duplex.
(10)
ICC--the International Code Council, Inc., currently located
at 5203 Leesburg Pike, Suite 708, Falls Church, Virginia, 22041-3401, or at
a subsequent address, and any successor organization that performs substantially
the same functions that the ICC performs as of December 1, 2003.
(11)
Improvement to the interior of an existing home when the
cost of the work exceeds $20,000--modifications to the interior living space
of a home that include the addition of permanent fixtures inside the home.
The commission shall determine whether such modifications meet the monetary
threshold for inclusion within the requirements of the Act by aggregating
the total consideration paid by a homeowner within a twelve-month period for
all such modifications to the home.
(12)
Living space--the enclosed area in a home that is suitable
for year-round use, embodying walls, floors, and ceilings that are similar
to the rest of the home.
(13)
Local building official--the agency or department of a
municipality, county or other local political subdivision with authority to
make inspections and to enforce the laws, ordinances, and regulations applicable
to the construction, alteration, or repair of residential structures in that
locality.
(14)
Material improvement--a modification to an existing home
that either increases or decreases the home's total square footage of living
space that also modifies the home's foundation, perimeter walls, or roof.
A material improvement does not include modifications to an existing home
if the modifications are designed primarily to repair or replace the home's
component parts.
(15)
Person--an individual, partnership, company, corporation,
association, or any other legal entity, however organized.
(16)
Statutory warranty--
(A)
that warranty defined in §430.001(b) of the Act covering:
(i)
one year for workmanship and materials;
(ii)
two years for plumbing, electrical, heating, and air-conditioning
delivery systems; and
(iii)
ten years for major structural components of the home;
or
(B)
that limited warranty of habitability created in §430.002
of the Act.
(17)
State inspector--a person employed by the commission pursuant
to §427.002 of the Act to:
(A)
review on an appeals panel the recommendations of third-party
inspectors;
(B)
provide consultation to third-party inspectors; and
(C)
administer the state-sponsored inspection and dispute resolution
process.
(18)
Third-party inspector--a person approved by the commission
to perform services under the state-sponsored inspection and dispute resolution
process.
(19)
Transaction governed by the Act--
(A)
the construction of a new home; or
(B)
for an existing home:
(i)
a material improvement to a home other than an improvement
solely to replace or repair the roof; or
(ii)
an improvement to the interior when the cost paid for
the work exceeds $20,000.
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 December 19, 2003.
TRD-200308760
Susan K. Durso
General Counsel
Texas Residential Construction Commission
Earliest possible date of adoption: February 8, 2004
For further information, please call: (512) 463-9524
10 TAC §302.1
The Texas Residential Construction Commission (the "commission")
proposes a new rule at Title 10, Part 7, Chapter 302, §302.1, regarding
reasonable and necessary fees to provide sufficient revenue to cover the costs
of administering Title 16, Property Code.
Section 302.1, relating to Adoption of Fees, requires the commission to
annually review and consider for adoption a fee schedule to provide for fees
that are reasonable and necessary to provide sufficient revenue to cover the
costs of administering the Act. The commission shall publish its fees as adopted
and make them available to the public upon request.
Stephen D. Thomas, Executive Director, has determined that for each year
of the first five-year period that the new rule is in effect there will be
no fiscal implications for local government as a result of enforcing or administering
the new rule. During the first five-year period fees adopted by the commission
pursuant to the new rule will provide revenue to the state to cover the costs
of administering the Texas Residential Construction Commission Act, Title
16, Property Code.
Mr. Thomas has also determined that for each year of the first five-year
period the new rule is in effect, the public will benefit from the agency
oversight functions funded by any fees adopted by the commission. The commission
provides a neutral entity for assistance in resolving disputes, which will
provide a less costly method of resolving those disputes than litigation.
Mr. Thomas has also determined that large, small and micro-businesses that
fall within the purview of the new agency will be only modestly affected by
the fees paid pursuant to the fees schedule adopted by the commission but
not more so than is reasonable and necessary to cover the costs of administering
the Act.
Mr. Thomas has also determined that for each year of the first five-year
period the proposed rule is in effect there should be no effect on a local
economy; and therefore no local employment impact statement is required under
Administrative Procedure Act §2001.022.
Interested persons may submit written comments (16 copies) on the proposed
rule to Susan K. Durso, General Counsel, Texas Residential Construction Commission,
P.O. Box 13144, Austin, Texas, 78711. Comments may be submitted electronically
to
rulescomments@trcc.state.tx.us
. The deadline
for submission of comments is thirty (30) days from the date of publication
of the proposed rules in the
Texas Register
.
Comments should be organized in a manner consistent with the organization
of the proposed rule.
The new rule is proposed to implement new legislation enacted during the
78th Legislative Session, Regular Session, including House Bill 730. The new
section is adopted under Property Code §408.001, which provides general
authority for the commission to adopt rules necessary for the implementation
of Title 16, Property Code, and under the authority provided in §408.002,
Property Code (Act effective Sept. 1, 2003, 78th Leg., R.S., ch. 458, §1.01),
which provides in part that the commission may adopt reasonable fees to administer
Title 16, Property Code, beginning January 1, 2004.
The statutory provisions affected by the proposal are those set
forth in the Title 16, Property Code, §408.002 and House Bill 730, 78th
Legislature.
No other statutes, articles, or codes are affected by the proposal.
§302.1.Adoption of Fees.
(a)
At least annually the commission shall review and consider
for adoption fees that are reasonable and necessary to provide sufficient
revenue to cover the costs of administering the Act.
(b)
The commission shall publish fees adopted and make the
information available to the public upon request.
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 December 19, 2003.
TRD-200308761
Susan K. Durso
General Counsel
Texas Residential Construction Commission
Earliest possible date of adoption: February 8, 2004
For further information, please call: (512) 463-9524
Subchapter A. REGISTRATION OF BUILDERS
§
]2306.032
and 2306.0661(f)
of the Texas Government
Code.
board of directors
] of the Department.
(e)
]
Inquiry made at meeting
(§551.042, Texas Government Code).
Members of the public may raise
a subject that has not been included in the notice for the meeting; however,
any discussion of the subject by the board must be limited to a proposal to
place the subject on the agenda for a future meeting.
(f)
] This rule does not entitle
a member of the public to choose the items to be discussed.
Part 6.
OFFICE OF RURAL COMMUNITY AFFAIRS
Part 7.
TEXAS RESIDENTIAL CONSTRUCTION COMMISSION
Chapter 302.
FEES
Chapter 303.
REGISTRATION