Part 1.
TEXAS BOARD OF ARCHITECTURAL EXAMINERS
Chapter 1.
ARCHITECTS
Subchapter F. ARCHITECT'S SEAL
22 TAC §1.102
The Texas Board of Architectural Examiners adopts an amendment
to §1.102 of Title 22, Chapter 1, Subchapter F, pertaining to the architect’s
seal, as published in the April 16, 2004, issue of the
Texas Register
(29 TexReg 3736). The section is being adopted without
changes and the text will not be republished in the
Texas Register
.
Section 1.102 states that a registrant must use a seal which will be visible
if the sealed document is copied and also provides a description of the required
design of an architect’s seal. As amended, the section clarifies that
an architect may affix a seal, signature, and date of signature by electronic
means or by any other means as long as the affixation creates a clear and
legible image on any reproduction of the document.
The board received no comments pertaining to the proposal to adopt this
section.
The amendment to this section is adopted pursuant to Section
1051.202 of Tex. Occupations Code Annotated ch. 1051, which provides the Board
with general authority to promulgate rules necessary to the administration
of its statutory responsibilities.
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 June 15, 2004.
TRD-200403891
Cathy L. Hendricks, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Effective date: July 5, 2004
Proposal publication date: April 16, 2004
For further information, please call: (512) 305-8535
22 TAC §1.141
The Texas Board of Architectural Examiners adopts an amendment
to §1.141 for Title 22, Chapter 1, Subchapter H, pertaining to the Board's
authority to promulgate rules necessary for the regulation of professional
practices and enforcement of statutory provisions, the Board's authority to
take different types of disciplinary action against a registrant or an applicant,
and the factors the Board will consider in determining an appropriate sanction
for misconduct. The proposal to amend this rule was published in the April
16, 2004, issue of the
Texas Register
(29
TexReg 3736). The section is being adopted without changes and the text will
not be republished in the
Texas Register
.
The amendment to §1.141 adds "refuse to renew" to the list of potential
disciplinary sanctions that may be imposed against a registrant.
The board received no comments pertaining to the proposal to adopt this
section.
The amendment to this section is adopted pursuant to Section
1051.751 of Tex. Occupations Code Annotated ch. 1051, which lists "refuse
to renew" as a disciplinary sanction available to the Board, and Section 1051.202
of Tex. Occupations Code Annotated ch. 1051, which provides the Board with
general authority to promulgate rules necessary to the administration of its
statutory responsibilities.
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 June 15, 2004.
TRD-200403892
Cathy L. Hendricks, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Effective date: July 5, 2004
Proposal publication date: April 16, 2004
For further information, please call: (512) 305-8535
22 TAC §1.148
The Texas Board of Architectural Examiners adopts an amendment
to §1.148 for Title 22, Chapter 1, Subchapter H, pertaining to the potential
consequences of a architect registrant’s or applicant’s unauthorized
practice in another jurisdiction, as published in the April 16, 2004, issue
of the
Texas Register
(29 TexReg 3737). The
section is being adopted without changes and the text will not be republished
in the
Texas Register
.
This section sets forth the implications of disciplinary action by another
jurisdiction and the consequences of an architect’s failure to renew
a certificate of registration prior to its expiration. The amendment adds
"refusal to renew" a certificate of registration to the list of sanctions
imposed by another jurisdiction that could affect an architect or an applicant
for registration as an architect. The amendment also adds "refusal to renew"
a certificate of registration to the list of sanctions that the Board could
impose upon a registrant for conduct which was the subject of disciplinary
action by another jurisdiction.
As a result of the amendment, the rule will be consistent with statutory
language, which recently was amended by adding references to the "refusal
to renew" a certificate of registration as a disciplinary sanction.
The board received no comments pertaining to the proposal to adopt this
section.
The amendment to this section is adopted pursuant to Section
1051.202 of Tex. Occupations Code Annotated ch. 1051, which provides the Board
with general authority to promulgate rules necessary to the administration
of its statutory responsibilities.
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 June 15, 2004.
TRD-200403893
Cathy L. Hendricks, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Effective date: July 5, 2004
Proposal publication date: April 16, 2004
For further information, please call: (512) 305-8535
22 TAC §1.151
The Texas Board of Architectural Examiners adopts an amendment
to §1.151 for Title 22, Chapter 1, Subchapter H, pertaining to the effect
of enforcement proceedings on an application for architectural registration,
as published in the April 16, 2004, issue of the
Texas Register
(29 TexReg 3737). The section is being adopted without
changes and the text will not be republished in the
Texas Register
.
The section sets forth that the Board may hold, without denial or approval,
an application for registration if enforcement proceedings have been commenced
against the applicant; how an "enforcement proceeding" is initiated; the sanctions
that may be imposed against an applicant who is found to have falsified information
provided to the Board, violated any of the restrictions of the Act, violated
any similar restriction of another jurisdiction, or otherwise violated any
of the statutory provisions or rules enforced by the Board; and makes it possible
for the Board to take action against an applicant for any act or omission
if the same conduct would be a ground for disciplinary action against a registrant.
The amendment to this section substitutes the word "denial" for "rejection"
in order to be consistent with current statutory language and also describes
certain conditions that must be satisfied before the Board may approve the
registration application of a person whose application previously was denied.
As amended, the section requires such a person to demonstrate that he or she
has taken reasonable steps to correct the misconduct or deficiency for which
the application was denied, demonstrate that approval of the application is
not inconsistent with the Board’s duty to ensure that registrants are
qualified for registration, and pay all fees and costs incurred by the Board
as a result of any proceeding that led to the denial of the previous application.
The board received no comments pertaining to the proposal to adopt this
section.
The amendment to this section is adopted pursuant to Section
1051.403 of Tex. Occupations Code Annotated ch. 1051, which specifies certain
requirements that must be satisfied before the Board may approve a registration
application for a person who previously applied for registration and was denied
registration privileges, and Section 1051.202 of Tex. Occupations Code Annotated
ch. 1051, which provides the Board with general authority to promulgate rules
necessary to the administration of its statutory responsibilities.
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 June 15, 2004.
TRD-200403894
Cathy L. Hendricks, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Effective date: July 5, 2004
Proposal publication date: April 16, 2004
For further information, please call: (512) 305-8535
22 TAC §1.167
The Texas Board of Architectural Examiners adopts an amendment
to §1.167 for Title 22, Chapter 1, Subchapter I, pertaining to the publication
of disciplinary action, as published in the April 16, 2004, issue of the
The section describes the circumstances under which the Board publicizes
disciplinary action. The amendment to §1.167 implements a statutory directive
that the Board adopt rules to provide for the publication of all disciplinary
orders and sanctions. Changes to §1.167 as proposed replace the word
"may" with the word "shall" to make the section consistent with the mandate
imposed by the statute.
The board received no comments pertaining to the proposal to adopt this
section.
The amendment to this section is adopted pursuant to Section
1051.402 of Tex. Occupations Code Annotated ch. 1051, which directs the Texas
Board of Architectural Examiners to adopt rules to provide for the publication
of all disciplinary orders and sanctions.
§1.167.Publication of Disciplinary Action.
(a)
The Board shall cause to be published in the Board's official
newsletter, on the Board’s Web site, in a newspaper, or in another publication
the name of any person who is the subject of disciplinary action by the Board.
The publication may include a narrative summary of the facts giving rise to
disciplinary action and a description of the action taken.
(b)
In addition to other types of disciplinary action that
shall be publicized pursuant to this section, the Board shall publicize the
revocation or cancellation of a certificate of registration after its surrender
in lieu of potential disciplinary action.
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 June 15, 2004.
TRD-200403895
Cathy L. Hendricks, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Effective date: July 5, 2004
Proposal publication date: April 16, 2004
For further information, please call: (512) 305-8535
22 TAC §1.173
The Texas Board of Architectural Examiners adopts an amendment
to §1.173 for Title 22, Chapter 1, Subchapter I, pertaining to disciplinary
action, as published in the April 16, 2004, issue of the
Texas Register
(29 TexReg 3739). The section is being adopted without
changes and the text will not be republished in the
Texas Register
.
The section describes the possible consequences of violations by nonregistrants
as well as the procedure for imposing penalties against nonregistrants. As
amended, the section describes the process for issuing a cease and desist
order pursuant to statutory language recently enacted by the Texas Legislature.
The board received no comments pertaining to the proposal to adopt this
section.
The amendment to this section is adopted pursuant to Section
1051.504 of Tex. Occupations Code Annotated ch. 1051, which provides the Board
with authority to issue cease and desist orders, and pursuant to Section 1051.202
of Tex. Occupations Code Annotated ch. 1051, which provides the Board with
general authority to promulgate rules necessary to the administration of its
statutory responsibilities.
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 June 15, 2004.
TRD-200403896
Cathy L. Hendricks, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Effective date: July 5, 2004
Proposal publication date: April 16, 2004
For further information, please call: (512) 305-8535
22 TAC §§1.174 - 1.178
The Texas Board of Architectural Examiners adopts new §§1.174,
1.175, 1.176, 1.177, and 1.178 for Title 22, Chapter 1, Subchapter I, pertaining
to Disciplinary Action, as published in the April 16, 2004, issue of the
New §1.174 provides specific guidelines to govern the processing of
complaints addressed by the agency. Pursuant to legislation enacted by the
78th Legislature, Regular Session, the Board is required to adopt rules regarding
the steps in the complaint process. The new section describes the information
that must be submitted with a complaint, the procedure for conducting a preliminary
evaluation of a complaint, the process for complaints that survive the preliminary
evaluation period and proceed to a formal investigation, the process to be
followed during an investigation, the process for dismissing a complaint,
the process for taking action when the information and evidence gathered during
an investigation are sufficient to prove that a violation has occurred, and
the process for requesting reconsideration of a complaint that has been dismissed.
Changes to §1.174 as proposed delete the requirement that a complaint
include the time of the alleged violation; change "initiate an investigation"
to "act on the matter" in subsection (b); delete "make reasonable efforts
to" from subsection (d); change "At the conclusion of" to "after" in subsection
(e); revise the criteria for the issuance of a warning to a respondent for
the respondent’s first violation of the laws enforced by the Board;
and add "if known" to subsection (j)(1). Other changes to the proposed section
clarify the discretion the agency has in contacting parties during the preliminary
evaluation of a complaint and allow the agency to send notice to parties that
a case is being dismissed in lieu of requiring the agency to make such notice
by letter.
New §1.175 establishes a requirement that formal hearing proceedings
may not begin in a case involving allegations of recklessness, gross incompetence,
or dishonesty unless a licensee has reviewed the allegations and determined
that the respondent’s conduct did not satisfy the requisite standard
of care. The rule ensures that more serious allegations of misconduct are
reviewed by a person with expertise in the subjects that are at issue in the
disciplinary action. The section is adopted as proposed without changes.
New §1.176 establishes a process for issuing subpoenas for the production
of witness testimony, documents, or other evidence in connection with alleged
violations of statutory provisions and rules enforced by the Board. The section
is being adopted with changes. The changes to 1.176, as proposed, specify
that the Executive Director or the Chairman of the Board may issue a subpoena.
New §1.177 establishes specific guidelines for determining the appropriate
amount of an administrative penalty imposed by the Board. Pursuant to legislation
enacted by the 78th Legislature, Regular Session, the Board is required to
adopt an administrative penalty schedule. This rule satisfies the new legislative
requirement. Changes to §1.177 as proposed revise the criteria for determining
whether a respondent’s violation of the law is a minor, moderate, or
major violation. The revision specifies conduct as minor if the respondent
demonstrates that the respondent was unaware that the conduct was prohibited
and was unaware that there was a reasonable likelihood of the harm resulting
from the conduct, in addition to demonstrating that the respondent provided
a satisfactory remedy that alleviated any harm or threat to the health or
safety of the public. As proposed, the rule did not require the respondent
to demonstrate these factors as part of the Board’s documentation whether
a violation is minor. The adopted rule specifies that a moderate violation
results from a "knowing" disregard of standards of practice applied by reasonable
persons under the same or similar circumstances. The proposed rule listed
a "conscious" disregard for the standards applied under the circumstances
as a moderate violation. The rule revises the proposed criteria of a major
violation as posing a "serious," in lieu of a "major," threat to the health
or safety of the public. The proposed rule listed the respondent’s sanction
history as a factor in determining whether the respondent’s conduct
is a minor, moderate, or major violation. The proposed rule is changed by
including consideration of whether the respondent previously received a written
warning or notice from the Board regarding the law’s restrictions as
a factor in the respondent’s sanction history for determining whether
the violation was minor or moderate. The maximum administrative penalties
that may be imposed for a minor and moderate violation are increased as follows:
from $250 to $350 for a minor violation and from $1,000 to $1,200 for a moderate
violation. The administrative penalty that may be imposed for a major violation
is not less than $1201 and not more than $5,000. As proposed, the minimum
penalty for a major violation was $1,001. The changes to the proposed rule
also allow the Board to suspend the guidelines if the facts of a case are
unique. The proposed rule referred only to "unusual" facts.
New §1.178 implements a statutory provision enacted by the 78th Legislature,
Regular Session, to require that a person whose registration has been suspended
or revoked must, prior to reinstatement of the certificate, demonstrate that
reasonable steps have been taken to correct the misconduct, demonstrate that
reinstatement is not inconsistent with the Board’s duty to protect the
public, and pay all costs incurred by the Board during the revocation or suspension.
The Board adopted the rule as proposed without changes.
The board conducted a public hearing on proposed §1.177, relating
to the administrative penalty schedule, on May 17, 2004. The board received
no public comment on the section at the hearing. The board received no other
comments pertaining to the proposal to adopt these sections.
The new sections are adopted pursuant to Section 1051.252 of
Tex. Occupations Code Annotated ch. 1051, which directs the Board to adopt
rules regarding the Board’s complaint process; Section 1051.204 of Tex.
Occupations Code Annotated ch. 1051, which authorizes the Board to issue subpoenas;
Section 1051.452 of Tex. Occupations Code Annotated ch. 1051, which directs
the Board to adopt an administrative penalty schedule to govern the amounts
of all administrative penalties imposed by the Board; Section 1051.403 of
Tex. Occupations Code Annotated ch. 1051, which specifies certain requirements
that must be satisfied before the Board may reinstate a registration; and
Section 1051.202 of Tex. Occupations Code Annotated ch. 1051, which provides
the Board with general authority to promulgate rules necessary to the administration
of its statutory responsibilities.
§1.174.Complaint Process.
(a)
A person may file a complaint by submitting the following
information to the Board:
(1)
the name of and contact information for the complainant
unless evidence regarding a possible violation was submitted anonymously;
(2)
the name of the person against whom the complaint is filed;
(3)
the address, telephone number, Web site, or other contact
information for the person against whom the complaint is filed, if available;
(4)
the date and location of the alleged violation that is
the subject of the complaint;
(5)
a description of each alleged violation; and
(6)
the name, address, and telephone number for any known witness
who can provide information regarding the alleged violation.
(b)
A complaint should be submitted on the complaint form that
may be obtained by accessing the form on the Board’s Web site or by
contacting the Board’s staff. If a completed complaint form is not submitted,
the Board’s staff will not be able to initiate an investigation unless
the Board’s staff receives information sufficient to establish probable
cause to believe an actionable violation might have occurred.
(c)
Once a complaint has been received, the Board’s enforcement
staff shall:
(1)
provide the complainant and respondent with copies of the
Board’s policies and procedures regarding complaint investigation and
resolution;
(2)
conduct a preliminary evaluation of the complaint within
thirty (30) days to determine:
(A)
Jurisdiction: whether the complaint provides information
sufficient to establish probable cause for the Board’s staff to believe
an actionable violation might have occurred;
(B)
Disciplinary History: whether there has been previous enforcement
activity involving the person against whom the complaint has been filed; and
(C)
Priority Level: the seriousness of the complaint relative
to other pending enforcement matters;
(3)
notify the complainant and respondent of the status of
the investigation at least quarterly unless providing notice would jeopardize
an investigation; and
(4)
maintain a complaint file that includes at least:
(A)
the name of the person who filed the complaint unless the
complaint was filed anonymously;
(B)
the date the complaint was received by the Board’s
staff;
(C)
a description of the subject matter of the complaint;
(D)
the name of each person contacted in relation to the complaint;
(E)
a summary of the results of the review and investigation
of the complaint; and
(F)
an explanation for the reason the complaint was dismissed
if the complaint was dismissed without action other than the investigation
of the complaint.
(d)
During the preliminary evaluation period, the Board’s
staff may contact the complainant, the respondent, and any known witness concerning
the complaint.
(e)
After the preliminary evaluation period, the Board’s
staff shall take steps to dismiss the complaint or proceed with an investigation
of the allegation(s) against the respondent. A complaint may be referred to
another government agency if it appears that the other agency might have jurisdiction
over the issue(s) raised in the complaint.
(f)
If the Board’s staff proceeds with an investigation,
the staff shall:
(1)
investigate the complaint according to the priority level
assigned to the complaint;
(2)
notify the complainant and respondent that, as a result
of the staff’s preliminary evaluation of the complaint, the staff has
determined that the Board has jurisdiction over the allegations(s) described
in the complaint and has decided to proceed with an investigation of the allegation(s)
against the respondent; and
(3)
gather sufficient information and evidence to determine
whether a violation of a statutory provision or rule enforced by the Board
has occurred.
(g)
The Board’s staff may conduct an investigation regardless
of whether a complaint form was received as described in subsection (a) of
this section.
(h)
If the information and evidence gathered during an investigation
are insufficient to prove that a violation has occurred, the Board’s
staff shall:
(1)
dismiss the complaint;
(2)
send notices to the complainant and respondent regarding
the dismissal;
(3)
if warranted, include in the respondent’s notice
a recommendation or warning regarding the respondent’s future conduct;
and
(4)
if a complaint is determined to be unfounded, state in
the respondent’s notice that no violation was found.
(i)
If the information and evidence gathered during an investigation
are sufficient to prove that a violation has occurred, the Board’s staff
shall:
(1)
seek to resolve the matter pursuant to section 1.165 or
section 1.173 of this subchapter; or
(2)
issue a warning to the respondent if the violation is the
respondent’s first violation and:
(A)
the respondent has not received a written warning or advisory
notice from the Board regarding the law’s restrictions which was directed
to the respondent;
(B)
the respondent provided a satisfactory remedy that alleviated
or eliminated any harm or threat to the health or safety of the public; and
(C)
the guidelines for determining an appropriate penalty for
the violation recommend an administrative penalty or a reprimand as an appropriate
sanction for the violation.
(j)
Before a proposed settlement agreement may be approved
by the Board:
(1)
the complainant, if known, must be notified of the terms
of the agreement and the date, time, and location of the meeting during which
the Board will consider the agreement; and
(2)
the terms of the agreement must be reviewed by legal counsel
for the Board to ensure that all legal requirements have been satisfied.
(k)
If a complaint is dismissed, the complainant may submit
to the Executive Director a written request for reconsideration. The written
request must explain why the complaint should not have been dismissed.
§1.176.Subpoenas and Depositions.
(a)
On a showing of good cause and on deposit of a sum reasonably
estimated to cover the costs of issuing and serving the subpoena and the costs
described in subsection (e) of this section, the Executive Director or the
Chairman may issue a subpoena to require the attendance of a witness for examination
under oath or the production of a record, document, or other evidence relevant
to the investigation of, or a disciplinary proceeding related to, an alleged
violation of a statutory provision or rule enforced by the Board.
(b)
A subpoena must:
(1)
be issued in the name of the State of Texas;
(2)
be signed by the Executive Director or the Chairman;
(3)
be addressed to a sheriff, constable, or other party authorized
by the Texas Rules of Civil Procedure to serve a subpoena;
(4)
state the time and place at which the witness is required
to appear, the name of the person at whose instance the subpoena has been
issued, and the date of the subpoena’s issuance;
(5)
include a specific description of any record, document,
or other evidence covered by the subpoena; and
(6)
be served by delivering a copy of the subpoena to the party
named in the subpoena.
(c)
A subpoena may be executed and returned at any time. The
person serving the subpoena shall make due return thereof, showing the time
and manner of service or showing that service was accepted by the witness
by a written memorandum signed by the witness and attached to the subpoena.
(d)
A deposition shall be taken in the manner prescribed for
depositions in the Administrative Procedure Act (APA).
(e)
A witness or deponent who is not a party to an enforcement
proceeding and who is subpoenaed or otherwise compelled by the Board to attend
any hearing or proceeding to provide testimony, give a deposition, or produce
a record, document, or other evidence shall be entitled to receive:
(1)
payment for mileage and reimbursement for transportation,
meal, and lodging expenses as required by the APA for going to and returning
from the place of the hearing or the place where the deposition is taken if
the place is more than 25 miles from the person's place of residence; and
(2)
a witness fee as required by the APA for each day or part
of a day the person is necessarily present as a witness or deponent.
(f)
Expenses and fees described in subsection (e) of this section
shall be paid by the party at whose request the witness appears or the deposition
is taken, on presentation of proper vouchers sworn by the witness and approved
by the Executive Director.
(g)
Payment for mileage and reimbursement for transportation,
meal, and lodging expenses for a witness whose presence is required by a subpoena
issued by the Executive Director or the Chairman shall be at the same rate
as is paid to a state employee traveling on state business.
§1.177.Administrative Penalty Schedule.
If the Board determines that an administrative penalty is the appropriate
sanction for a violation of any of the statutory provisions or rules enforced
by the Board, the following guidelines shall be applied to determine the amount
of the administrative penalty:
(1)
The Board shall consider the following factors to determine
whether the violation is minor, moderate, or major:
(A)
Seriousness of misconduct and efforts to correct the ground
for sanction:
(i)
Minor--the respondent has demonstrated that he/she was
unaware that his/her conduct was prohibited and unaware that the conduct was
reasonably likely to cause the harm that resulted from the conduct or the
respondent has demonstrated that there were significant extenuating circumstances
or intervening causes for the violation; and the respondent has demonstrated
that he/she provided a satisfactory remedy that alleviated or eliminated any
harm or threat to the health or safety of the public.
(ii)
Moderate--the violation shows that the respondent knowingly
disregarded a standard or practice normally followed by a reasonably prudent
person under the same or similar circumstances.
(iii)
Major--this is a violation of an order of the Board or
a violation that demonstrates gross negligence or recklessness; or the conduct
posed a serious threat to the health or safety of the public; or, after being
notified of the alleged violation and the harm or threat to the health or
safety of the public, the respondent intentionally refused or failed to provide
an available remedy to alleviate or eliminate the harm or threat to the health
or safety of the public.
(B)
Economic damage to property:
(i)
Minor--there was no apparent economic damage to property.
(ii)
Moderate--economic damage to property did not exceed $1,000,
or damage exceeding $1,000 was reasonably unforeseeable.
(iii)
Major--economic damage to property exceeded $1,000.
(C)
Sanction history:
(i)
Minor--this is the first time an administrative penalty
or other sanction has been imposed against the respondent, and the respondent
has not previously received a written warning or advisory notice from the
Board regarding the law’s restrictions which was directed to the respondent.
(ii)
Moderate--this is the second time an administrative penalty
or other sanction has been imposed against the respondent; or the respondent
previously was subject to an order of the Board through which the Board could
have imposed an administrative penalty; or the respondent previously received
a written warning or advisory notice from the Board regarding the law’s
restrictions which was directed to the respondent.
(iii)
Major--this is at least the third time an administrative
penalty or other sanction has been imposed against the respondent or the respondent
has been subject to an order of the Board through which the Board could have
imposed an administrative penalty.
(2)
After determining whether the violation is minor, moderate,
or major, the Board shall impose an administrative penalty as follows:
(A)
Minor violations--if the violation is minor in every category
described in subsection (1) of this section, an administrative penalty of
$350 shall be imposed.
(B)
Moderate violations--if the violation is moderate in any
category described in subsection (1) of this section, an administrative penalty
of not less than $351 and not more than $1,200 shall be imposed.
(C)
Major violations--if the violation is major in any category
described in subsection (1) of this section or if the Board determines that
the facts of the case indicate a higher penalty is necessary in order to deter
similar misconduct in the future, an administrative penalty of not less than
$1,201 and not more than $5,000 shall be imposed.
(3)
In order to determine the appropriate amount in a penalty
range described in subsection (2) of this section, the Board shall consider
the factors described in subsection (1) of this section.
(4)
If the facts of a case are unique or unusual, the Board
may suspend the guidelines described in this section.
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 June 15, 2004.
TRD-200403897
Cathy L. Hendricks, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Effective date: July 5, 2004
Proposal publication date: April 16, 2004
For further information, please call: (512) 305-8535
22 TAC §§1.211 - 1.214
The Texas Board of Architectural Examiners adopts amendments
to §§1.211, 1.212, 1.213, and 1.214 for Title 22, Chapter 1, Subchapter
K, pertaining to the conditions under which the services of a registered architect
are required, as published in the April 16, 2004, issue of the
Texas Register
(29 TexReg 3743). The amendment to §1.212 is being
adopted with changes. The amendments to §§1.211, 1.213, and 1.214
are being adopted without changes and the text will not be republished in
the
Texas Register
.
Section 1.211 sets forth the conditions under which an architect is required
to prepare plans, specifications, addenda, change orders, and supplementary
instructions for privately-owned new or altered buildings constructed in Texas.
As amended, §1.211 restates and clarifies the general requirement that
an architect must prepare the architectural plans and specifications for certain
privately owned buildings and also adds definitions for the terms "multifamily
dwelling," "commercial building," and "warehouse that has limited public access."
The change to §1.212, as proposed, adds "building" before "construction
costs" in subsection (a) and subsection (b)(1) in order to make it clear that
other costs related to the project do not affect the $50,000 and $100,000
thresholds.
Section 1.212 sets forth the conditions under which an architect is required
to prepare plans, specifications, addenda, change orders, and supplementary
instructions for publicly-owned new or altered buildings constructed in Texas.
As amended, §1.212 restates and clarifies the general requirement that
an architect must prepare the architectural plans and specifications for certain
public buildings.
Section 1.213 describes the requirement that a registered architect must
prepare the architectural plans, specifications, addenda, change orders, and
supplementary instructions for any alteration or addition to an existing building
involving structural changes which require the professional services of a
registered professional engineer or which involve exitway changes affecting
the building's egress by more than 50 building occupants. As amended, §1.213
restates and clarifies the statutory exemption for architectural projects
that do not involve substantial structural or exitway changes.
Section 1.214 implements a statutory requirement that a registered architect
must prepare the architectural plans, specifications, addenda, change orders,
and supplementary instructions for institutional residential facilities. As
amended, §1.214 restates and clarifies the requirement that an architect
must prepare the architectural plans and specifications for the construction
or modification of a building to be used as an institutional residential facility.
The adoption also restates the definition of the term "institutional residential
facility" as a building to be occupied on a 24-hour basis by persons who are
receiving custodial care from the proprietor or operator of the building.
The adopted amendments clarify the circumstances in which an architect must
prepare architectural plans and specifications.
The board received the following comments from the public concerning the
proposal to adopt this section: Comment: Two building officials commented
that the definition of the term "multifamily dwelling" in §1.211 would
seem to include townhouses which would be inconsistent with the International
Building Code, which designates townhouses as single family dwellings. Response:
The Board carefully considered this issue and determined that its responsibility
to protect the public would not be served if dwellings that do not have space
between them and are separated only by walls or partitions were not considered
multifamily dwellings for purposes of the Architectural Practice Act. Comment:
One comment inquired about the list of conditions in §1.212(b) under
which the architectural plans and specifications for the alteration or addition
to a public building must be prepared by an architect or under an architect’s
supervision and control. The comment opined it was unclear whether all three
of the conditions must exist in order for the requirement to apply. The commentator
suggested the insertion of the word "and" between each of the three listed
conditions. Response: When more than two items are listed in any of the Board’s
rules, the word "and" appears between the last two listed items and is implied
with regard to all other listed items. This is a common statutory drafting
style. Inserting the word "and" between each item in this rule would be inconsistent
with the Board’s other rules. This inconsistency could cause confusion
about the meaning of this rule or other rules that would be structured differently.
The amendments to these sections are adopted pursuant to Section
1051.606 of Tex. Occupations Code Annotated ch. 1051, which describes the
exemptions to the architectural practice act, and Section 1051.202 of Tex.
Occupations Code Annotated ch. 1051, which provides the Board with general
authority to promulgate rules necessary to the administration of its statutory
responsibilities.
§1.212.Publicly Owned Buildings.
(a)
An architectural plan or specification for a new building
constructed and owned by a public entity where the total projected building
construction costs at the commencement of construction exceed $100,000 shall
be prepared by an Architect or under the Supervision and Control of an Architect
if the building is intended for any of the following uses:
(1)
education: the use of a building at any time for instructional
purposes;
(2)
assembly: the use of a building for the gathering together
of persons for purposes such as civic, social, or religious functions or for
recreation, food or drink consumption, or awaiting transportation; or
(3)
office occupancy: the use of a building for business, professional,
or service transactions or activities.
(b)
An architectural plan or specification for an alteration
or addition to an existing building owned by a public entity shall be prepared
by an Architect or under the Supervision and Control of an Architect if:
(1)
the total projected building construction costs at the
commencement of construction exceed $50,000;
(2)
the alteration or addition requires the removal, relocation,
or addition of a wall or partition or the alteration or addition of an exit;
and
(3)
the building is intended for any of the uses listed in
subsection (a) of this section.
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 June 15, 2004.
TRD-200403898
Cathy L. Hendricks, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Effective date: July 5, 2004
Proposal publication date: April 16, 2004
For further information, please call: (512) 305-8535
22 TAC §1.216
The Texas Board of Architectural Examiners adopts an amendment
to §1.216 for Title 22, Chapter 1, Subchapter K, pertaining to professional
responsibilities of registered architects, as published in the April 16, 2004,
issue of the
Texas Register
(29 TexReg 3744).
The section is being adopted without changes and the text will not be republished
in the
Texas Register
.
The section requires an architect to report any course of action taken
against the architect's advice which may violate applicable state or local
building laws or regulations and which, in the architect's judgment, will
have a material adverse effect on the safe use of the completed building.
As amended, §1.216 substitutes "law or regulatory provision" for "laws
or regulations" and capitalizes the term "architect" to denote it as a defined
term. There were no changes to §1.216 as proposed.
As amended, §1.216 is more clearly stated and easier to understand.
The board received the following comments from the public concerning the
proposal to adopt this section: Comment: One comment generally opposed capitalizing
the word "architect" in the Board's rules. Response: Terms that are defined
in the board's rules are capitalized in order to inform the reader that there
is a definition for the term. The term "architect" is defined in the board's
rules and therefore, it is appropriate for the term to be capitalized.
The amendment is adopted pursuant to Section 1051.202 of Tex.
Occupations Code Annotated ch. 1051, which provides the Board with general
authority to promulgate rules necessary to the administration of its statutory
responsibilities.
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 June 15, 2004.
TRD-200403899
Cathy L. Hendricks, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Effective date: July 5, 2004
Proposal publication date: April 16, 2004
For further information, please call: (512) 305-8535
22 TAC §1.217
The Texas Board of Architectural Examiners adopts new §1.217
for Title 22, Chapter 1, Subchapter K, pertaining to construction observation
for architectural projects as published in the April 16, 2004, issue of the
Section 1.217 specifically describes the circumstances under which an architect
must perform construction observation services for an architectural project.
Changes to §1.217 as proposed specify that the term "construction observation"
means the administration of the portion of the construction contract which
is described and documented in the architectural plans and specifications.
As proposed, the term "construction observation" was defined as generally
referring to the administration of the architectural portion of a construction
contract. Changes to the Section clarify that an architect’s construction
observation includes reviewing submittals by consultants. Changes to the Section
also include a revision to one of the responsibilities of an architect listed
as "construction observation" under the proposed section. As revised, the
architect’s obligation to notify the client of substantial deviations
to the architectural plans and specifications specifically include those deviations
which the architect would not otherwise be required to report under §1.216,
as a violation of state or local laws or regulations. As proposed, it was
unclear if the architect’s responsibility to notify the client of deviations
was greater than the notice requirement in §1.216. The change makes it
clear that the notice requirement within the meaning of construction observation
involves notice of substantial deviations from architectural plans and specifications
that do not necessarily violate state or local laws and regulations. Changes
also replace the term "owner" with the term "client" as those terms are used
in the responsibilities listed as construction observation. The term "supervision
and control" was added to allow people other than registered architects to
perform construction observation services as long as they are properly overseen
by registered architects. In subsection (3)(B), "any defect or deficiency"
was changed to "defects and deficiencies" in order to clarify that an effort
to identify all defects and deficiencies must be made.
The board received the following comments from the public concerning the
proposal to adopt this section: Comment: One comment from the Texas Society
of Architects expressed concern that defining the term "construction observation"
as applying to "the architectural portion of the construction contract" is
vague and difficult to interpret. The comment recommended the wording be changed
to "the portion of the construction contract described and documented in the
architectural plans and specifications." The Texas Society of Architects favored
adoption of the rule. Response: The Board agrees with the recommended change
and is adopting the rule with the recommended change.
The new section is adopted pursuant to Section 1051.202 of Tex.
Occupations Code Annotated ch. 1051, which provides the Board with general
authority to promulgate rules necessary to the administration of its statutory
responsibilities.
§1.217.Construction Observation.
If, pursuant to Section 1.211, Section 1.212, or Section 1.214, an
Architect must prepare or supervise and control the preparation of the architectural
plans and specifications for a new building or the alteration of or an addition
to an existing building, construction observation for the project shall be
conducted by an Architect or by a person working under the Supervision and
Control of an Architect. For purposes of this Subchapter, "construction observation"
means the administration of the portion of the construction contract described
and documented in the architectural plans and specifications, including the
following:
(1)
reviewing each shop drawing, sample, and other submittal
by a contractor or consultant;
(2)
preparing or reviewing each change to an architectural
plan or specification;
(3)
visiting the construction site at intervals appropriate
to the stage of construction to:
(A)
become generally familiar with and keep the client generally
informed about the progress and quality of the portion of the construction
completed;
(B)
make a reasonable effort to identify defects and deficiencies
in the construction;
(C)
determine generally whether the construction is being performed
in a manner indicating that the project, when fully completed, will be in
accordance with the architectural plans and specifications; and
(4)
in addition to any responsibilities under Section 1.216,
notifying the client in writing of any substantial deviation from the architectural
plans and specifications that may prevent the building from being occupied
or utilized for its intended use.
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 June 15, 2004.
TRD-200403900
Cathy L. Hendricks, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Effective date: July 5, 2004
Proposal publication date: April 16, 2004
For further information, please call: (512) 305-8535
22 TAC §1.232
The Texas Board of Architectural Examiners adopts an amendment
to §1.232 for Title 22, Chapter 1, Subchapter L, concerning the board's
and the State Office of Administrative Hearings’ responsibilities as
they pertain to contested cases, as published in the April 16, 2004, issue
of the
Texas Register
(29 TexReg 3746). The
section is being adopted without changes and the text will not be republished
in the
Texas Register
.
This section generally describes the Board's procedures for addressing
contested cases and ensuring that the procedures are consistent with governing
law. As amended, the section clarifies that the administrative penalty guidelines
appearing in a separate subchapter of the rules are to govern the imposition
of all administrative penalties imposed by the Board or recommended by an
administrative law judge. The section is also amended to authorize the Board
to refuse to renew a respondent’s certificate of registration in any
case where revocation of the respondent’s certificate of registration
is an appropriate penalty for the respondent’s conduct.
As amended, the section will ensure that the Board and any administrative
law judge who presides over a contested case will apply the same guidelines
for imposing all administrative penalties so that penalties will be imposed
in a consistent manner.
The board received no comments pertaining to the proposal to adopt this
section.
The amendment to this section is adopted pursuant to Section
1051.452 of Tex. Occupations Code Annotated ch. 1051, which directs the Board
to adopt an administrative penalty schedule to govern the amounts of all administrative
penalties imposed by the Board, Section 1051.751 of Tex. Occupations Code
Annotated ch. 1051, which lists "refusal to renew" as a disciplinary sanction,
and pursuant to Section 1051.202 of Tex. Occupations Code Annotated ch. 1051,
which provides the Board with general authority to promulgate rules necessary
to the administration of its statutory responsibilities.
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 June 15, 2004.
TRD-200403901
Cathy L. Hendricks, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Effective date: July 5, 2004
Proposal publication date: April 16, 2004
For further information, please call: (512) 305-8535
Subchapter F. LANDSCAPE ARCHITECT'S SEAL
22 TAC §3.102, §3.103
The Texas Board of Architectural Examiners adopts an amendment
to §3.102 and §3.103 for Title 22, Chapter 3, Subchapter F, pertaining
to the Landscape Architect’s Seal as published in the April 16, 2004,
issue of the
Texas Register
(29 TexReg 3747).
Section 3.102 is being adopted with changes; §3.103 is being adopted
without changes and the text will not be republished in the
Texas Register
.
Section 3.102 states that landscape architect must use a seal for affixation
to issued documents which will be visible if the sealed document is copied.
The section also specifies the required design of a landscape architect’s
seal. As amended, §3.102 clarifies that a landscape architect may affix
a seal, signature, and date of signature by electronic means or by any other
means as long as the affixation creates a clear and legible image on any reproduction
of the document. The amended section also alters the design of the seal to
correspond with statutory language regarding the design. The change to the
section as proposed is a minor change to the circular borders and reduces
the size of the wording printed on the new design of the seal.
Section 3.103 describes the requirements related to a landscape architect's
use of his or her seal; lists construction documents which must be sealed,
signed, and dated; describes the requirements for issuing documents for purposes
other than regulatory approval, permitting, or construction; and describes
the requirements related to the retention of sealed documents. The amendment
to §3.103 replaces the phrase "architectural drawing and specification"
with "landscape architectural drawing and specification" in the last sentence
of subsection (a).
As a result of the amendment, the permissible means of affixing a seal
and signature are explicitly stated, the requirements related to the design
of the professional seal are consistent with statutory requirements, and a
typographical error has been corrected.
The board received the following comments from the public concerning the
proposal to adopt this amendment/new rule: Comment: One comment was received
in opposition to modifications to the landscape architectural seal. The comment
stated that changing the seal will impose a financial burden on landscape
architects who will have to replace the seal they have been using. The comment
also noted that the seal currently used by landscape architects contain the
requisite elements that tie it to the official seal of the Board, such as
the words "State of Texas" and the star, among other elements. The comment
also inquired whether there would be a grandfather clause for the implementation
of the new seal. Response: The Legislature mandated that the Board’s
seal and the professional seals of architects, landscape architects, and interior
designers must all have the same design. The Board carefully considered the
issue and decided that revising the seals of the landscape architects and
interior designers, as well as the official seal of the Board would impact
the fewest number of registrants. The Board decided to allow registrants ample
opportunity to obtain new seals. No enforcement action will be taken for use
of an obsolete seal until after January 1, 2006.
The amendment is adopted pursuant to Section 1051.202 of Tex.
Occupations Code Annotated ch. 1051, which provides the Board with general
authority to promulgate rules necessary to the administration of its statutory
responsibilities. The amendment to Subsection 3.102(b) is proposed pursuant
to Section 1052.056 of Tex. Occupations Code Annotated ch. 1052, which prescribes
the requirements related to the design of a landscape architect's seal.
§3.102.Type and Design.
(a)
On every document requiring a Landscape Architect's seal,
the Landscape Architect shall affix or cause the affixation of a seal that
will produce a clearly visible and legible image of the seal when the document
is copied or reproduced. A Landscape Architect may not affix or authorize
the affixation of an impression or embossing seal on a document requiring
a seal unless the impression or embossing seal will produce a clearly visible
and legible image of the seal when the document is copied or reproduced.
(b)
The design of a Landscape Architect's seal shall be the
same as the design of the sample seal shown in this Subsection except that
the name of the Landscape Architect and the Landscape Architect's registration
number shall be substituted for the name and registration number shown on
the sample seal. The diameter of the seal shall be no smaller than one and
one-half (1.5) inches.
(c)
A document regulated by this Subchapter may be issued electronically
or in any other format selected by the Landscape Architect whose seal and
signature are affixed to the document. A Landscape Architect’s seal
and signature and the date of signing may be affixed electronically or through
any other means selected by the Landscape Architect as long as the seal, signature,
and date will produce a clearly visible and legible image on any copy or reproduction
of the document to which they are affixed.
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 June 15, 2004.
TRD-200403902
Cathy L. Hendricks, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Effective date: July 5, 2004
Proposal publication date: April 16, 2004
For further information, please call: (512) 305-8535
22 TAC §3.141
The Texas Board of Architectural Examiners adopts an amendment
to §3.141 for Title 22, Chapter 3, Subchapter H, the Board's authority
to promulgate rules necessary for the regulation of professional practices
and enforcement of statutory provisions, the Board's authority to take different
types of disciplinary action against a registrant or an applicant, and the
factors the Board will consider in determining an appropriate sanction for
misconduct. The proposal to amend this rule was published in the April 16,
2004, issue of the
Texas Register
(29 TexReg
3748). The section is being adopted without changes and the text will not
be republished in the
Texas Register
.
The amendment to section §3.141 adds "refuse to renew" to the list
of potential disciplinary sanctions that may be imposed against a registrant.
The board received no comments pertaining to the proposal to adopt this
section.
The amendment to this section is adopted pursuant to Section
1052.251 of Tex. Occupations Code Annotated ch. 1052, which adds "refuse to
renew" as an additional disciplinary sanction available to the Board, and
Section 1051.202 of Tex. Occupations Code Annotated ch. 1051, which provides
the Board with general authority to promulgate rules necessary to the administration
of its statutory responsibilities.
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 June 15, 2004.
TRD-200403903
Cathy L. Hendricks, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Effective date: July 5, 2004
Proposal publication date: April 16, 2004
For further information, please call: (512) 305-8535
22 TAC §3.148
The Texas Board of Architectural Examiners adopts an amendment §3.148
for Title 22, Chapter 3, Subchapter H, pertaining to the potential consequences
of a landscape architect registrant’s or applicant’s unauthorized
practice in another jurisdiction, as published in the April 16, 2004, issue
of the
Texas Register
(29 TexReg 3749). The
section is being adopted without changes and the text will not be republished
in the
Texas Register
.
This section sets forth the implications of disciplinary action by another
jurisdiction and the consequences of a landscape architect’s failure
to renew a certificate of registration prior to its expiration. The amendment
adds "refusal to renew" a certificate of registration to the list of sanctions
imposed by another jurisdiction that could affect a landscape architect or
an applicant for registration as a landscape architect. The amendment also
adds "refusal to renew" a certificate of registration to the list of sanctions
that the Board could impose upon a registrant for conduct which was the subject
of disciplinary action by another jurisdiction.
As a result of the amendment, the rule will be consistent with statutory
language, which recently was amended by adding references to the "refusal
to renew" a certificate of registration as a disciplinary sanction.
The board received no comments pertaining to the proposal to adopt this
section.
The amendment to this section is adopted pursuant to Section
1051.202 of Tex. Occupations Code Annotated ch. 1051, which provides the Board
with general authority to promulgate rules necessary to the administration
of its statutory responsibilities.
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 June 15, 2004.
TRD-200403904
Cathy L. Hendricks, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Effective date: July 5, 2004
Proposal publication date: April 16, 2004
For further information, please call: (512) 305-8535
22 TAC §3.151
The Texas Board of Architectural Examiners adopts an amendment
to §3.151 for Title 22, Chapter 3, Subchapter H, pertaining to the effect
of enforcement proceedings on an application for landscape architectural registration,
as published in the April 16, 2004, issue of the
Texas Register
(29 TexReg 3749). The section is being adopted without
changes and the text will not be republished in the
Texas Register
.
Section 3.151 sets forth that the Board may hold, without approval or denial,
an application for registration if enforcement proceedings have been commenced
against the applicant; how an "enforcement proceeding" is initiated; the sanctions
that may be imposed against an applicant who is found to have falsified information
provided to the Board, violated any of the restrictions of the Act, violated
any similar restriction of another jurisdiction, or otherwise violated any
of the statutory provisions or rules enforced by the Board; and makes it possible
for the Board to take action against an applicant for any act or omission
if the same conduct would be a ground for disciplinary action against a registrant.
As amended, §3.151 substitutes the word "denial" for "rejection" in
order to be consistent with current statutory language and also describes
certain conditions that must be satisfied before the Board may approve the
registration application of a person whose application previously was denied.
As amended, the section requires such a person to demonstrate that he or she
has taken reasonable steps to correct the misconduct or deficiency for which
the application was denied, demonstrate that approval of the application is
not inconsistent with the Board's duty to ensure that registrants are qualified
for registration, and pay all fees and costs incurred by the Board as a result
of any proceeding that led to the denial of the previous application.
The board received no comments pertaining to the proposal to adopt this
section.
The amendment to this section is adopted pursuant to Section
1051.403 of Tex. Occupations Code Annotated ch. 1051, which specifies certain
requirements that must be satisfied before the Board may approve a registration
application for a person who previously applied for registration and was denied
registration privileges, and Section 1051.202 of Tex. Occupations Code Annotated
ch. 1051, which provides the Board with general authority to promulgate rules
necessary to the administration of its statutory responsibilities.
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 June 15, 2004.
TRD-200403905
Cathy L. Hendricks, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Effective date: July 5, 2004
Proposal publication date: April 16, 2004
For further information, please call: (512) 305-8535
22 TAC §3.167
The Texas Board of Architectural Examiners adopts an amendment
to §3.167 for Title 22, Chapter 3, Subchapter I, pertaining to the publication
of disciplinary action, as published in the April 16, 2004, issue of the
The section describes the circumstances under which the Board publicizes
disciplinary action. The amendment to §3.167 implements a statutory directive
that the Board adopt rules to provide for the publication of all disciplinary
orders and sanctions. Changes to §3.167 as proposed replace the word
"may" with the word "shall" to make the section consistent with the statutory
mandate that the Board shall publicize disciplinary action.
The board received no comments pertaining to the proposal to adopt this
section.
The amendment to this section is adopted pursuant to Section
1051.402 of Tex. Occupations Code Annotated ch. 1051, which directs the Texas
Board of Architectural Examiners to adopt rules to provide for the publication
of all disciplinary orders and sanctions.
§3.167.Publication of Disciplinary Action.
(a)
The Board shall cause to be published in the Board's official
newsletter, on the Board's Web site, in a newspaper, or in another publication
the name of any person who is the subject of disciplinary action by the Board.
The publication may include a narrative summary of the facts giving rise to
disciplinary action and a description of the action taken.
(b)
In addition to other types of disciplinary action that
shall be publicized pursuant to this section, the Board shall publicize the
revocation or cancellation of a certificate of registration after its surrender
in lieu of potential disciplinary action.
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 June 15, 2004.
TRD-200403906
Cathy L. Hendricks, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Effective date: July 5, 2004
Proposal publication date: April 16, 2004
For further information, please call: (512) 305-8535
22 TAC §3.173
The Texas Board of Architectural Examiners adopts an amendment
to §3.173 for Title 22, Chapter 3, Subchapter I, pertaining to disciplinary
action, as published in the April 16, 2004, issue of the
Texas Register
(29 TexReg 3751). The section is being adopted without
changes and the text will not be republished in the
Texas Register
.
The section describes the possible consequences of violations by nonregistrants
as well as the procedure for imposing penalties against nonregistrants. As
amended, the section describes the process for issuing a cease and desist
order pursuant to statutory language recently enacted by the Texas Legislature.
The board received no comments pertaining to the proposal to adopt this
section.
The amendment to this section is adopted pursuant to Section
1051.504 of Tex. Occupations Code Annotated ch. 1051, which provides the Board
with authority to issue cease and desist orders, and pursuant to Section 1051.202
of Tex. Occupations Code Annotated ch. 1051, which provides the Board with
general authority to promulgate rules necessary to the administration of its
statutory responsibilities.
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 June 15, 2004.
TRD-200403907
Cathy L. Hendricks, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Effective date: July 5, 2004
Proposal publication date: April 16, 2004
For further information, please call: (512) 305-8535
22 TAC §§3.174 - 3.178
The Texas Board of Architectural Examiners adopts new §§3.174,
3.175, 3.176, 3.177, and 3.178 for Title 22, Chapter 3, Subchapter I, pertaining
to Disciplinary Action, as published in the April 16, 2004, issue of the
New §3.174 provides specific guidelines to govern the processing of
complaints addressed by the agency. Pursuant to legislation enacted by the
78th Legislature, Regular Session, the Board is required to adopt rules regarding
the steps in the complaint process. The new section describes the information
that must be submitted with a complaint, the procedure for conducting a preliminary
evaluation of a complaint, the process for complaints that survive the preliminary
evaluation period and proceed to a formal investigation, the process to be
followed during an investigation, the process for dismissing a complaint,
the process for taking action when the information and evidence gathered during
an investigation are sufficient to prove that a violation has occurred, and
the process for requesting reconsideration of a complaint that has been dismissed.
Changes to §3.174 as proposed delete the requirement that a complaint
include the time of the alleged violation; change "initiate an investigation"
to "act on the matter" in subsection (b); delete "make reasonable efforts
to" from subsection (d); change "At the conclusion of " to "after" in subsection
(e); revise the criteria for the issuance of a warning to a respondent for
the respondent's first violation of the laws enforced by the Board; and add
"if known" to subsection (j)(1). Other changes to the proposed rule clarify
the discretion the agency has in contacting parties during the preliminary
evaluation of a complaint and allow the agency to send notice to parties that
a case is being dismissed in lieu of requiring the agency to make such notice
by letter.
New §3.175 establishes a requirement that formal hearing proceedings
may not begin in a case involving allegations of recklessness, gross incompetence,
or dishonesty unless a licensee has reviewed the allegations and determined
that the respondent's conduct did not satisfy the requisite standard of care.
The rule ensures that more serious allegations of misconduct are reviewed
by a person with expertise in the subjects that are at issue in the disciplinary
action. The section is adopted as proposed without changes.
New §3.176 establishes a process for issuing subpoenas for the production
of witness testimony, documents, or other evidence in connection with alleged
violations of statutory provisions and rules enforced by the Board. The section
is being adopted with changes. The changes to §3.176, as proposed, specify
that the Executive Director or the Chairman of the Board may issue a subpoena.
New §3.177 establishes specific guidelines for determining the appropriate
amount of an administrative penalty imposed by the Board. Pursuant to legislation
enacted by the 78th Legislature, Regular Session, the Board is required to
adopt an administrative penalty schedule. This rule satisfies the new legislative
requirement. Changes to §3.177 as proposed revise the criteria for determining
whether a respondent's violation of the law is a minor, moderate, or major
violation. The revision specifies conduct as minor if the respondent demonstrates
that the respondent was unaware that the conduct was prohibited and was unaware
that there was a reasonable likelihood of the harm resulting from the conduct,
in addition to demonstrating that the respondent provided a satisfactory remedy
that alleviated any harm or threat to the health or safety of the public.
As proposed, the rule did not require the respondent to demonstrate these
factors as part of the Board's documentation whether a violation is minor.
The adopted rule specifies that a moderate violation results from a "knowing"
disregard of standards of practice applied by reasonable persons under the
same or similar circumstances. The proposed rule listed a "conscious" disregard
for the standards applied under the circumstances as a moderate violation.
The rule revises the proposed criteria of a major violation as posing a "serious,"
in lieu of a "major," threat to the health or safety of the public. The proposed
rule listed the respondent's sanction history as a factor in determining whether
the respondent's conduct is a minor, moderate, or major violation. The proposed
rule is changed by including consideration of whether the respondent previously
received a written warning or notice from the Board regarding the law's restrictions
as a factor in the respondent's sanction history for determining whether the
violation was minor or moderate. The maximum administrative penalties that
may be imposed for a minor and moderate violation are increased as follows:
from $250 to $350 for a minor violation and from $1,000 to $1,200 for a moderate
violation. The administrative penalty that may be imposed for a major violation
is not less than $1201 and not more than $5,000. As proposed, the minimum
penalty for a major violation was $1,001. The changes to the proposed rule
also allow the Board to suspend the guidelines if the facts of a case are
unique. The proposed rule referred only to "unusual" facts.
New §3.178 implements a statutory provision enacted by the 78th Legislature,
Regular Session, to require that a person whose registration has been suspended
or revoked must, prior to reinstatement of the certificate, demonstrate that
reasonable steps have been taken to correct the misconduct, demonstrate that
reinstatement is not inconsistent with the Board's duty to protect the public,
and pay all costs incurred by the Board during the revocation or suspension.
The Board adopted the rule as proposed, without changes.
The board received no comments pertaining to the proposal to adopt this
section.
The new sections are adopted pursuant to Section 1051.252 of
Tex. Occupations Code Annotated ch. 1051, which directs the Board to adopt
rules regarding the Board's complaint process; Section 1051.204 of Tex. Occupations
Code Annotated ch. 1051, which authorizes the Board to issue subpoenas; Section
1051.452 of Tex. Occupations Code Annotated ch. 1051, which directs the Board
to adopt an administrative penalty schedule to govern the amounts of all administrative
penalties imposed by the Board; Section 1051.403 of Tex. Occupations Code
Annotated ch. 1051, which specifies certain requirements that must be satisfied
before the Board may reinstate a registration; and Section 1051.202 of Tex.
Occupations Code Annotated ch. 1051, which provides the Board with general
authority to promulgate rules necessary to the administration of its statutory
responsibilities.
§3.174.Complaint Process.
(a)
A person may file a complaint by submitting the following
information to the Board:
(1)
the name of and contact information for the complainant
unless evidence regarding a possible violation was submitted anonymously;
(2)
the name of the person against whom the complaint is filed;
(3)
the address, telephone number, Web site, or other contact
information for the person against whom the complaint is filed, if available;
(4)
the date and location of the alleged violation that is
the subject of the complaint;
(5)
a description of each alleged violation; and
(6)
the name, address, and telephone number for any known witness
who can provide information regarding the alleged violation.
(b)
A complaint should be submitted on the complaint form that
may be obtained by accessing the form on the Board's Web site or by contacting
the Board's staff. If a completed complaint form is not submitted, the Board's
staff will not be able to initiate an investigation unless the Board's staff
receives information sufficient to establish probable cause to believe an
actionable violation might have occurred.
(c)
Once a complaint has been received, the Board's enforcement
staff shall:
(1)
provide the complainant and respondent with copies of the
Board's policies and procedures regarding complaint investigation and resolution;
(2)
conduct a preliminary evaluation of the complaint within
thirty (30) days to determine:
(A)
Jurisdiction: whether the complaint provides information
sufficient to establish probable cause for the Board's staff to believe an
actionable violation might have occurred;
(B)
Disciplinary History: whether there has been previous enforcement
activity involving the person against whom the complaint has been filed; and
(C)
Priority Level: the seriousness of the complaint relative
to other pending enforcement matters;
(3)
notify the complainant and respondent of the status of
the investigation at least quarterly unless providing notice would jeopardize
an investigation; and
(4)
maintain a complaint file that includes at least:
(A)
the name of the person who filed the complaint unless the
complaint was filed anonymously;
(B)
the date the complaint was received by the Board's staff;
(C)
a description of the subject matter of the complaint;
(D)
the name of each person contacted in relation to the complaint;
(E)
a summary of the results of the review and investigation
of the complaint; and
(F)
an explanation for the reason the complaint was dismissed
if the complaint was dismissed without action other than the investigation
of the complaint.
(d)
During the preliminary evaluation period, the Board's staff
may contact the complainant, the respondent, and any known witness concerning
the complaint.
(e)
After the preliminary evaluation period, the Board's staff
shall take steps to dismiss the complaint or proceed with an investigation
of the allegation(s) against the respondent. A complaint may be referred to
another government agency if it appears that the other agency might have jurisdiction
over the issue(s) raised in the complaint.
(f)
If the Board's staff proceeds with an investigation, the
staff shall:
(1)
investigate the complaint according to the priority level
assigned to the complaint;
(2)
notify the complainant and respondent that, as a result
of the staff's preliminary evaluation of the complaint, the staff has determined
that the Board has jurisdiction over the allegations(s) described in the complaint
and has decided to proceed with an investigation of the allegation(s) against
the respondent; and
(3)
gather sufficient information and evidence to determine
whether a violation of a statutory provision or rule enforced by the Board
has occurred.
(g)
The Board's staff may conduct an investigation regardless
of whether a complaint form was received as described in subsection (a) of
this section.
(h)
If the information and evidence gathered during an investigation
are insufficient to prove that a violation has occurred, the Board's staff
shall:
(1)
dismiss the complaint;
(2)
send notices to the complainant and respondent regarding
the dismissal;
(3)
if warranted, include in the respondent's notice a recommendation
or warning regarding the respondent's future conduct; and
(4)
if a complaint is determined to be unfounded, state in
the respondent's notice that no violation was found.
(i)
If the information and evidence gathered during an investigation
are sufficient to prove that a violation has occurred, the Board's staff shall:
(1)
seek to resolve the matter pursuant to section 3.165 or
section 3.173 of this subchapter; or
(2)
issue a warning to the respondent if the violation is the
respondent's first violation and:
(A)
the respondent has not received a written warning or advisory
notice from the Board regarding the law's restrictions which was directed
to the respondent;
(B)
the respondent provided a satisfactory remedy that alleviated
or eliminated any harm or threat to the health or safety of the public; and
(C)
the guidelines for determining an appropriate penalty for
the violation recommend an administrative penalty or a reprimand as an appropriate
sanction for the violation.
(j)
Before a proposed settlement agreement may be approved
by the Board:
(1)
the complainant, if known, must be notified of the terms
of the agreement and the date, time, and location of the meeting during which
the Board will consider the agreement; and
(2)
the terms of the agreement must be reviewed by legal counsel
for the Board to ensure that all legal requirements have been satisfied.
(k)
If a complaint is dismissed, the complainant may submit
to the Executive Director a written request for reconsideration. The written
request must explain why the complaint should not have been dismissed.
§3.176.Subpoenas and Depositions.
(a)
On a showing of good cause and on deposit of a sum reasonably
estimated to cover the costs of issuing and serving the subpoena and the costs
described in subsection (e) of this section, the Executive Director or the
Chairman may issue a subpoena to require the attendance of a witness for examination
under oath or the production of a record, document, or other evidence relevant
to the investigation of, or a disciplinary proceeding related to, an alleged
violation of a statutory provision or rule enforced by the Board.
(b)
A subpoena must:
(1)
be issued in the name of the State of Texas;
(2)
be signed by the Executive Director or the Chairman;
(3)
be addressed to a sheriff, constable, or other party authorized
by the Texas Rules of Civil Procedure to serve a subpoena;
(4)
state the time and place at which the witness is required
to appear, the name of the person at whose instance the subpoena has been
issued, and the date of the subpoena's issuance;
(5)
include a specific description of any record, document,
or other evidence covered by the subpoena; and
(6)
be served by delivering a copy of the subpoena to the party
named in the subpoena.
(c)
A subpoena may be executed and returned at any time. The
person serving the subpoena shall make due return thereof, showing the time
and manner of service or showing that service was accepted by the witness
by a written memorandum signed by the witness and attached to the subpoena.
(d)
A deposition shall be taken in the manner prescribed for
depositions in the Administrative Procedure Act (APA).
(e)
A witness or deponent who is not a party to an enforcement
proceeding and who is subpoenaed or otherwise compelled by the Board to attend
any hearing or proceeding to provide testimony, give a deposition, or produce
a record, document, or other evidence shall be entitled to receive:
(1)
payment for mileage and reimbursement for transportation,
meal, and lodging expenses as required by the APA for going to and returning
from the place of the hearing or the place where the deposition is taken if
the place is more than 25 miles from the person's place of residence; and
(2)
a witness fee as required by the APA for each day or part
of a day the person is necessarily present as a witness or deponent.
(f)
Expenses and fees described in subsection (e) of this section
shall be paid by the party at whose request the witness appears or the deposition
is taken, on presentation of proper vouchers sworn by the witness and approved
by the Executive Director.
(g)
Payment for mileage and reimbursement for transportation,
meal, and lodging expenses for a witness whose presence is required by a subpoena
issued by the Executive Director or the Chairman shall be at the same rate
as is paid to a state employee traveling on state business.
§3.177.Administrative Penalty Schedule.
If the Board determines that an administrative penalty is the appropriate
sanction for a violation of any of the statutory provisions or rules enforced
by the Board, the following guidelines shall be applied to determine the amount
of the administrative penalty:
(1)
The Board shall consider the following factors to determine
whether the violation is minor, moderate, or major:
(A)
Seriousness of misconduct and efforts to correct the ground
for sanction:
(i)
Minor--the respondent has demonstrated that he/she was
unaware that his/her conduct was prohibited and unaware that the conduct was
reasonably likely to cause the harm that resulted from the conduct or the
respondent has demonstrated that there were significant extenuating circumstances
or intervening causes for the violation; and the respondent has demonstrated
that he/she provided a satisfactory remedy that alleviated or eliminated any
harm or threat to the health or safety of the public.
(ii)
Moderate--the violation shows that the respondent knowingly
disregarded a standard or practice normally followed by a reasonably prudent
person under the same or similar circumstances.
(iii)
Major--this is a violation of an order of the Board or
a violation that demonstrates gross negligence or recklessness; or the conduct
posed a serious threat to the health or safety of the public; or, after being
notified of the alleged violation and the harm or threat to the health or
safety of the public, the respondent intentionally refused or failed to provide
an available remedy to alleviate or eliminate the harm or threat to the health
or safety of the public.
(B)
Economic damage to property:
(i)
Minor--there was no apparent economic damage to property.
(ii)
Moderate--economic damage to property did not exceed $1,000,
or damage exceeding $1,000 was reasonably unforeseeable.
(iii)
Major--economic damage to property exceeded $1,000.
(C)
Sanction history:
(i)
Minor--this is the first time an administrative penalty
or other sanction has been imposed against the respondent, and the respondent
has not previously received a written warning or advisory notice from the
Board regarding the law's restrictions which was directed to the respondent.
(ii)
Moderate--this is the second time an administrative penalty
or other sanction has been imposed against the respondent; or the respondent
previously was subject to an order of the Board through which the Board could
have imposed an administrative penalty; or the respondent previously received
a written warning or advisory notice from the Board regarding the law's restrictions
which was directed to the respondent.
(iii)
Major--this is at least the third time an administrative
penalty or other sanction has been imposed against the respondent or the respondent
has been subject to an order of the Board through which the Board could have
imposed an administrative penalty.
(2)
After determining whether the violation is minor, moderate,
or major, the Board shall impose an administrative penalty as follows:
(A)
Minor violations--if the violation is minor in every category
described in subsection (1) of this section, an administrative penalty of
$350 shall be imposed.
(B)
Moderate violations--if the violation is moderate in any
category described in subsection (1) of this section, an administrative penalty
of not less than $351 and not more than $1,200 shall be imposed.
(C)
Major violations--if the violation is major in any category
described in subsection (1) of this section or if the Board determines that
the facts of the case indicate a higher penalty is necessary in order to deter
similar misconduct in the future, an administrative penalty of not less than
$1,201 and not more than $5,000 shall be imposed.
(3)
In order to determine the appropriate amount in a penalty
range described in subsection (2) of this section, the Board shall consider
the factors described in subsection (1) of this section.
(4)
If the facts of a case are unique or unusual, the Board
may suspend the guidelines described in this section.
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 June 15, 2004.
TRD-200403908
Cathy L. Hendricks, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Effective date: July 5, 2004
Proposal publication date: April 16, 2004
For further information, please call: (512) 305-8535
22 TAC §3.232
The Texas Board of Architectural Examiners adopts an amendment
to §3.232 for Title 22, Chapter 3, Subchapter K, concerning the board's
and the State Office of Administrative Hearings' responsibilities as they
pertain to contested cases, as published in the April 16, 2004, issue of the
This section generally describes the Board's procedures for addressing
contested cases and ensuring that the procedures are consistent with governing
law. As amended, the section clarifies that the administrative penalty guidelines
appearing in a separate subchapter of the rules are to govern the imposition
of all administrative penalties imposed by the Board or recommended by an
administrative law judge. The section is also amended to authorize the Board
to refuse to renew a respondent's certificate of registration in any case
where revocation of the respondent's certificate of registration is an appropriate
penalty for the respondent's conduct.
As amended, the section will ensure that the Board and any administrative
law judge who presides over a contested case will apply the same guidelines
for imposing all administrative penalties so that penalties will be imposed
in a consistent manner.
The board received no comments pertaining to the proposal to adopt this
section.
The amendment to this section is adopted pursuant to Section
1051.452 of Tex. Occupations Code Annotated ch. 1051, which directs the Board
to adopt an administrative penalty schedule to govern the amounts of all administrative
penalties imposed by the Board, Section 1052.251 of Tex. Occupations Code
Annotated ch. 1052, which lists "refusal to renew" a certificate of registration
as a disciplinary sanction, and pursuant to Section 1051.202 of Tex. Occupations
Code Annotated ch. 1051, which provides the Board with general authority to
promulgate rules necessary to the administration of its statutory responsibilities.
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 June 15, 2004.
TRD-200403909
Cathy L. Hendricks, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Effective date: July 5, 2004
Proposal publication date: April 16, 2004
For further information, please call: (512) 305-8535
Subchapter F. THE INTERIOR DESIGNER'S SEAL
22 TAC §5.112
The Texas Board of Architectural Examiners adopts an amendment
to §5.112 for Title 22, Chapter 5, Subchapter F, pertaining to the interior
designer's seal, as published in the April 16, 2004, issue of the
Texas Register
(29 TexReg 3756). Section 5.112 is being adopted with
changes.
Section 5.112 states that an interior designer must use a seal for affixation
to issued documents which will be visible if the sealed document is copied.
The section also specifies the required design of an interior designer's seal.
As amended, §5.112 clarifies that an interior designer may affix a seal,
signature, and date of signature by electronic means or by any other means
as long as the affixation creates a clear and legible image on any reproduction
of the document. The amended section also alters the design of the seal to
correspond with statutory language regarding the design. The change to the
section as proposed is a minor change to the circular border and reduces the
size of the wording printed on the seal.
As a result of the amendment, the permissible means of affixing a seal
and signature are explicitly stated, and the requirements related to the design
of the professional seal are consistent with statutory requirements.
The board received the following public comments pertaining to the proposal
to adopt this section: Comment: One comment was received in opposition to
modifications to the interior designer seal. The comment stated that changing
the seal will impose a financial burden on interior designers who will have
to replace the seal they have been using. The comment also noted that the
seal currently used by interior designers contain the requisite elements that
tie it to the official seal of the Board, such as the words "State of Texas"
and the star, among other elements. The comment also inquired whether there
would be a grandfather clause for the implementation of the new seal. Response:
The Legislature mandated that the Board's seal and the professional seals
of architects, landscape architects, and interior designers must all have
the same design. The Board carefully considered the issue and decided that
revising the seals of the landscape architects and interior designers, as
well as the official seal of the Board would impact the fewest number of registrants.
The Board decided to allow registrants ample opportunity to obtain new seals.
No enforcement action will be taken for use of an obsolete seal until after
January 1, 2006.
The amendment to this section is adopted pursuant to Section
1051.202 of Tex. Occupations Code Annotated ch. 1051, which provides the Board
with general authority to promulgate rules necessary to the administration
of its statutory responsibilities. The amendment to Subsection (b) is proposed
pursuant to Section 1053.058 of Tex. Occupations Code Annotated ch. 1053,
which prescribes the requirements related to the design of an interior designer's
seal.
§5.112.Type and Design.
(a)
On every document requiring an Interior Designer's seal,
the Interior Designer shall affix or cause the affixation of a seal that will
produce a clearly visible and legible image of the seal when the document
is copied or reproduced. An Interior Designer may not affix or authorize the
affixation of an impression or embossing seal on a document requiring a seal
unless the impression or embossing seal will produce a clearly visible and
legible image of the seal when the document is copied or reproduced.
(b)
The design of an Interior Designer's seal shall be the
same as the design of the sample seal shown in this Subsection except that
the name of the Interior Designer and the Interior Designer's registration
number shall be substituted for the name and registration number shown on
the sample seal. The diameter of the seal shall be no smaller than one and
one-half (1.5) inches.
(c)
A document regulated by this Subchapter may be issued electronically
or in any other format selected by the Interior Designer whose seal and signature
are affixed to the document. An Interior Designer's seal and signature and
the date of signing may be affixed electronically or through any other means
selected by the Interior Designer as long as the seal, signature, and date
will produce a clearly visible and legible image on any copy or reproduction
of the document to which they are affixed.
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 June 15, 2004.
TRD-200403910
Cathy L. Hendricks, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Effective date: July 5, 2004
Proposal publication date: April 16, 2004
For further information, please call: (512) 305-8535
22 TAC §5.151
The Texas Board of Architectural Examiners adopts an amendment
to §5.151 for Title 22, Chapter 5, Subchapter H pertaining to the Board's
authority to promulgate rules necessary for the regulation of professional
practices of interior designers and enforcement of statutory provisions, the
Board's authority to take different types of disciplinary action against a
registrant or an applicant, and the factors the Board will consider in determining
an appropriate sanction for misconduct. The proposal to amend this rule was
published in the April 16, 2004, issue of the
Texas
Register
(29 TexReg 3757). The section is being adopted without changes
and the text will not be republished in the
Texas
Register
.
The section generally describes the Board's authority to promulgate rules
necessary for the regulation of professional practices and enforcement of
statutory provisions relating to interior designers, generally describes the
Board's authority to take different types of disciplinary action against a
registrant or an applicant, lists the factors the Board will consider in determining
an appropriate sanction for misconduct, and states that registrants must adhere
to relevant statutory provisions and rules even when providing services free
of charge. As amended, "refuse to renew" is added to the list of potential
disciplinary sanctions that may be imposed against a registrant.
The board received no comments pertaining to the proposal to adopt this
section.
The amendment to this section is proposed pursuant to Section
1053.251 of Tex. Occupations Code Annotated ch. 1053, which adds "refuse to
renew" as an additional disciplinary sanction available to the Board, and
Section 1051.202 of Tex. Occupations Code Annotated ch. 1051, which provides
the Board with general authority to promulgate rules necessary to the administration
of its statutory responsibilities.
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 June 15, 2004.
TRD-200403911
Cathy L. Hendricks, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Effective date: July 5, 2004
Proposal publication date: April 16, 2004
For further information, please call: (512) 305-8535
22 TAC §5.157
The Texas Board of Architectural Examiners adopts an amendment
to §5.157 for Title 22, Chapter 5, Subchapter H, pertaining to the potential
consequences of a registrant's or applicant's unauthorized practice in another
jurisdiction as published in the April 16, 2004, issue of the
Texas Register
(29 TexReg 3757). The section is being adopted without
changes and the text will not be republished in the
Texas Register
.
This section sets forth the implications of disciplinary action by another
jurisdiction and the consequences of an interior designer's failure to renew
a certificate of registration prior to its expiration. The amendment adds
"refusal to renew" to the list of sanctions imposed by another jurisdiction
that could affect an interior designer or an applicant for registration as
an interior designer. The amendment also adds "refusal to renew" a certificate
of registration to the list of sanctions that the Board could impose upon
a registrant for conduct which was the subject of disciplinary action by another
jurisdiction.
The amended rule is consistent with statutory language, which recently
was amended by adding references to the "refusal to renew" a certificate of
registration as a disciplinary sanction.
The board received no comments pertaining to the proposal to adopt this
section.
The amendment to this section is adopted pursuant to Section
1051.202 of Tex. Occupations Code Annotated ch. 1051, which provides the Board
with general authority to promulgate rules necessary to the administration
of its statutory responsibilities.
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 June 15, 2004.
TRD-200403912
Cathy L. Hendricks, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Effective date: July 5, 2004
Proposal publication date: April 16, 2004
For further information, please call: (512) 305-8535
22 TAC §5.160
The Texas Board of Architectural Examiners adopts an amendment
to §5.160 for Title 22, Chapter 5, Subchapter H, pertaining to the effect
of enforcement proceedings on an application for interior designer registration,
as published in the April 16, 2004, issue of the
Texas Register
(29 TexReg 3758). The section is being adopted without
changes and the text will not be republished in the
Texas Register
.
The section sets forth that the Board may hold, without approval or denial,
an application for registration if enforcement proceedings have been commenced
against the applicant; how an "enforcement proceeding" is initiated; the sanctions
that may be imposed against an applicant who is found to have falsified information
provided to the Board, violated any of the restrictions of the Act, violated
any similar restriction of another jurisdiction, or otherwise violated any
of the statutory provisions or rules enforced by the Board; and makes it possible
for the Board to take action against an applicant for any act or omission
if the same conduct would be a ground for disciplinary action against a registrant.
The amendment to section §5.160 substitutes the word "denial" for
"rejection" in order to be consistent with current statutory language and
also describes certain conditions that must be satisfied before the Board
may approve the registration application of a person whose application previously
was denied. As amended, the section requires such a person to demonstrate
that he or she has taken reasonable steps to correct the misconduct or deficiency
for which the application was denied, demonstrate that approval of the application
is not inconsistent with the Board's duty to ensure that registrants are qualified
for registration, and pays all fees and costs incurred by the Board as a result
of any proceeding that led to the denial of the previous application.
The board received no comments pertaining to the proposal to adopt this
section.
The amendment to this section is adopted pursuant to Section
1051.403 of Tex. Occupations Code Annotated ch. 1051, which specifies certain
requirements that must be satisfied before the Board may approve a registration
application for a person who previously applied for registration and was denied
registration privileges, and Section 1051.202 of Tex. Occupations Code Annotated
ch. 1051, which provides the Board with general authority to promulgate rules
necessary to the administration of its statutory responsibilities.
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 June 15, 2004.
TRD-200403913
Cathy L. Hendricks, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Effective date: July 5, 2004
Proposal publication date: April 16, 2004
For further information, please call: (512) 305-8535
22 TAC §5.177
The Texas Board of Architectural Examiners adopts an amendment
to §5.177 for Title 22, Chapter 5, Subchapter I, pertaining to the publication
of disciplinary action against interior designers, as published in the April
16, 2004, issue of the
Texas Register
(29
TexReg 3759). The section is being adopted with changes.
The section describes the circumstances under which the Board publicizes
disciplinary action. The amendment to §5.177 implements a statutory directive
that the Board adopt rules to provide for the publication of all disciplinary
orders and sanctions. Changes to §5.177 as proposed replace the word
"may" with the word "shall" to make the section consistent with the statutory
mandate that the Board shall publicize disciplinary action.
The board received no comments pertaining to the proposal to adopt this
section.
The amendment to this section is adopted pursuant to Section
1051.402 of Tex. Occupations Code Annotated ch. 1051, which directs the Texas
Board of Architectural Examiners to adopt rules to provide for the publication
of all disciplinary orders and sanctions.
§5.177.Publication of Disciplinary Action.
(a)
The Board shall cause to be published in the Board's official
newsletter, on the Board's Web site, in a newspaper, or in another publication
the name of any person who is the subject of disciplinary action by the Board.
The publication may include a narrative summary of the facts giving rise to
disciplinary action and a description of the action taken.
(b)
In addition to other types of disciplinary action that
shall be publicized pursuant to this section, the Board shall publicize the
revocation or cancellation of a certificate of registration after its surrender
in lieu of potential disciplinary action.
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 June 15, 2004.
TRD-200403914
Cathy L. Hendricks, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Effective date: July 5, 2004
Proposal publication date: April 16, 2004
For further information, please call: (512) 305-8535
22 TAC §5.183
The Texas Board of Architectural Examiners adopts an amendment
to §5.183 for Title 22, Chapter 5, Subchapter I, pertaining to disciplinary
action, as published in the April 16, 2004, issue of the
Texas Register
(29 TexReg 3759). The section is being adopted without
changes and the text will not be republished in the
Texas Register
.
The section describes the possible consequences of violations by nonregistrants
of laws relating to interior design as well as the procedure for imposing
penalties against nonregistrants. As amended, the section describes the process
for issuing a cease and desist order pursuant to statutory language recently
enacted by the Texas Legislature.
The board received no comments from the public pertaining to the proposal
to adopt this section.
The amendment to this section is adopted pursuant to Section
1051.504 of Tex. Occupations Code Annotated ch. 1051, which provides the Board
with authority to issue cease and desist orders, and pursuant to Section 1051.202
of Tex. Occupations Code Annotated ch. 1051, which provides the Board with
general authority to promulgate rules necessary to the administration of its
statutory responsibilities.
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 June 15, 2004.
TRD-200403915
Cathy L. Hendricks, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Effective date: July 5, 2004
Proposal publication date: April 16, 2004
For further information, please call: (512) 305-8535
22 TAC §§5.184 - 5.188
The Texas Board of Architectural Examiners adopts new §§5.184,
5.185, 5.186, 5.187, and 5.188 for Title 22, Chapter 5, Subchapter I, pertaining
to Disciplinary Action as published in the April 16, 2004, issue of the
New §5.184 provides specific guidelines to govern the processing of
complaints addressed by the agency. Pursuant to legislation enacted by the
78th Legislature, Regular Session, the Board is required to adopt rules regarding
the steps in the complaint process. The new section describes the information
that must be submitted with a complaint, the procedure for conducting a preliminary
evaluation of a complaint, the process for complaints that survive the preliminary
evaluation period and proceed to a formal investigation, the process to be
followed during an investigation, the process for dismissing a complaint,
the process for taking action when the information and evidence gathered during
an investigation are sufficient to prove that a violation has occurred, and
the process for requesting reconsideration of a complaint that has been dismissed.
Changes to §5.184 as proposed delete the requirement that a complaint
include the time of the alleged violation; change "initiate an investigation"
to "act on the matter" in subsection (b); delete "make reasonable efforts
to" from subsection (d); change "At the conclusion of " to "after" in subsection
(e); revise the criteria for the issuance of a warning to a respondent for
the respondent's first violation of the laws enforced by the Board; and add
"if known" to subsection (j)(1). Other changes to the proposed rule clarify
the discretion the agency has in contacting parties during the preliminary
evaluation of a complaint and allow the agency to send notice to parties that
a case is being dismissed in lieu of requiring the agency to make such notice
by letter.
New §5.185 establishes a requirement that formal hearing proceedings
may not begin in a case involving allegations of recklessness, gross incompetence,
or dishonesty unless a licensee has reviewed the allegations and has determined
that the respondent's conduct did not satisfy the requisite standard of care.
The section ensures that more serious allegations of misconduct are reviewed
by a person with expertise in the areas that are the subject matter of the
disciplinary action. The section is adopted as proposed without changes.
New §5.186 establishes a process for issuing subpoenas for the production
of witness testimony, documents, or other evidence in connection with alleged
violations of statutory provisions and rules enforced by the Board. The section
is being adopted with changes. The changes to §5.186, as proposed, specify
that the Executive Director or the Chairman of the Board may issue a subpoena.
New §5.187 establishes specific guidelines for determining the appropriate
amount of an administrative penalty imposed by the Board. Pursuant to legislation
enacted by the 78th Legislature, Regular Session, the Board is required to
adopt an administrative penalty schedule. This rule satisfies the new legislative
requirement. Changes to §5.187 as proposed revise the criteria for determining
whether a respondent's violation of the law is a minor, moderate, or major
violation. The revision specifies conduct as minor if the respondent demonstrates
that the respondent was unaware that the conduct was prohibited and was unaware
that there was a reasonable likelihood of the harm resulting from the conduct,
in addition to demonstrating that the respondent provided a satisfactory remedy
that alleviated any harm or threat to the health or safety of the public.
As proposed, the rule did not require the respondent to demonstrate these
factors as part of the Board's documentation whether a violation is minor.
The adopted section specifies that a moderate violation results from a knowing
disregard of standards of practice applied by reasonable persons under the
same or similar circumstances. The proposed rule listed a conscious disregard
for the standards applied under the circumstances as a moderate violation.
The rule revises the proposed criteria of a major violation as posing a "serious,"
in lieu of a "major," threat to the health or safety of the public. The proposed
rule listed the respondent's sanction history as a factor in determining whether
the respondent's conduct is a minor, moderate, or major violation. The proposed
rule is changed by including consideration of whether the respondent previously
received a written warning or notice from the Board regarding the law's restrictions
as a factor in the respondent's sanction history for determining whether the
violation was minor or moderate. The maximum administrative penalties that
may be imposed for a minor and moderate violation are increased as follows:
from $250 to $350 for a minor violation and from $1,000 to $1,200 for a moderate
violation. The administrative penalty that may be imposed for a major violation
is not less than $1,201 and not more than $5,000. As proposed, the minimum
penalty for a major violation was $1,001. The changes to the proposed rule
also allow the Board to suspend the guidelines if the facts of a case are
unique. The proposed rule referred only to "unusual" facts.
New §5.188 implements a statutory provision enacted by the 78th Legislature,
Regular Session, to require a person whose registration has been suspended
or revoked, in order to obtain reinstatement of the certificate, to demonstrate
that reasonable steps have been taken to correct the misconduct, demonstrate
that reinstatement is not inconsistent with the Board's duty to protect the
public, and pay all costs incurred by the Board during the revocation or suspension.
The Board adopted the rule as proposed, without changes.
The board conducted a public hearing on proposed §5.187, relating
to the administrative penalty schedule, on May 17, 2004. The board received
no public comment on the section at the hearing. The board received no other
comments pertaining to the proposal to adopt these sections.
The new sections are proposed pursuant to Section 1051.252 of
Tex. Occupations Code Annotated ch. 1051, which directs the Board to adopt
rules regarding the Board's complaint process; Section 1051.204 of Tex. Occupations
Code Annotated ch. 1051, which authorizes the Board to issue subpoenas; Section
1051.452 of Tex. Occupations Code Annotated ch. 1051, which directs the Board
to adopt an administrative penalty schedule to govern the amounts of all administrative
penalties imposed by the Board; Section 1051.403 of Tex. Occupations Code
Annotated ch. 1051, which specifies certain requirements that must be satisfied
before the Board may reinstate a registration; and Section 1051.202 of Tex.
Occupations Code Annotated ch. 1051, which provides the Board with general
authority to promulgate rules necessary to the administration of its statutory
responsibilities.
§5.184.Complaint Process.
(a)
A person may file a complaint by submitting the following
information to the Board:
(1)
the name of and contact information for the complainant
unless evidence regarding a possible violation was submitted anonymously;
(2)
the name of the person against whom the complaint is filed;
(3)
the address, telephone number, Web site, or other contact
information for the person against whom the complaint is filed, if available;
(4)
the date and location of the alleged violation that is
the subject of the complaint;
(5)
a description of each alleged violation; and
(6)
the name, address, and telephone number for any known witness
who can provide information regarding the alleged violation.
(b)
A complaint should be submitted on the complaint form that
may be obtained by accessing the form on the Board's Web site or by contacting
the Board's staff. If a completed complaint form is not submitted, the Board's
staff will not be able to initiate an investigation unless the Board's staff
receives information sufficient to establish probable cause to believe an
actionable violation might have occurred.
(c)
Once a complaint has been received, the Board's enforcement
staff shall:
(1)
provide the complainant and respondent with copies of the
Board's policies and procedures regarding complaint investigation and resolution;
(2)
conduct a preliminary evaluation of the complaint within
thirty (30) days to determine:
(A)
Jurisdiction: whether the complaint provides information
sufficient to establish probable cause for the Board's staff to believe an
actionable violation might have occurred;
(B)
Disciplinary History: whether there has been previous enforcement
activity involving the person against whom the complaint has been filed; and
(C)
Priority Level: the seriousness of the complaint relative
to other pending enforcement matters;
(3)
notify the complainant and respondent of the status of
the investigation at least quarterly unless providing notice would jeopardize
an investigation; and
(4)
maintain a complaint file that includes at least:
(A)
the name of the person who filed the complaint unless the
complaint was filed anonymously;
(B)
the date the complaint was received by the Board's staff;
(C)
a description of the subject matter of the complaint;
(D)
the name of each person contacted in relation to the complaint;
(E)
a summary of the results of the review and investigation
of the complaint; and
(F)
an explanation for the reason the complaint was dismissed
if the complaint was dismissed without action other than the investigation
of the complaint.
(d)
After the preliminary evaluation period, the Board's staff
may contact the complainant, the respondent, and any known witness concerning
the complaint.
(e)
After the preliminary evaluation period, the Board's staff
shall take steps to dismiss the complaint or proceed with an investigation
of the allegation(s) against the respondent. A complaint may be referred to
another government agency if it appears that the other agency might have jurisdiction
over the issue(s) raised in the complaint.
(f)
If the Board's staff proceeds with an investigation, the
staff shall:
(1)
investigate the complaint according to the priority level
assigned to the complaint;
(2)
notify the complainant and respondent that, as a result
of the staff's preliminary evaluation of the complaint, the staff has determined
that the Board has jurisdiction over the allegations(s) described in the complaint
and has decided to proceed with an investigation of the allegation(s) against
the respondent; and
(3)
gather sufficient information and evidence to determine
whether a violation of a statutory provision or rule enforced by the Board
has occurred.
(g)
The Board's staff may conduct an investigation regardless
of whether a complaint form was received as described in subsection (a) of
this section.
(h)
If the information and evidence gathered during an investigation
are insufficient to prove that a violation has occurred, the Board's staff
shall:
(1)
dismiss the complaint;
(2)
send notices to the complainant and respondent regarding
the dismissal;
(3)
if warranted, include in the respondent's notice a recommendation
or warning regarding the respondent's future conduct; and
(4)
if a complaint is determined to be unfounded, state in
the respondent's notice that no violation was found.
(i)
If the information and evidence gathered during an investigation
are sufficient to prove that a violation has occurred, the Board's staff shall:
(1)
seek to resolve the matter pursuant to section 5.175 or
section 5.183 of this subchapter; or
(2)
issue a warning to the respondent if the violation is the
respondent's first violation and:
(A)
the respondent has not received a written warning or advisory
notice from the Board regarding the law's restrictions which was directed
to the respondent;
(B)
the respondent provided a satisfactory remedy that alleviated
or eliminated any harm or threat to the health or safety of the public; and
(C)
the guidelines for determining an appropriate penalty for
the violation recommend an administrative penalty or a reprimand as an appropriate
sanction for the violation.
(j)
Before a proposed settlement agreement may be approved
by the Board:
(1)
the complainant, if known, must be notified of the terms
of the agreement and the date, time, and location of the meeting during which
the Board will consider the agreement; and
(2)
the terms of the agreement must be reviewed by legal counsel
for the Board to ensure that all legal requirements have been satisfied.
(k)
If a complaint is dismissed, the complainant may submit
to the Executive Director a written request for reconsideration. The written
request must explain why the complaint should not have been dismissed.
§5.186.Subpoenas and Depositions.
(a)
On a showing of good cause and on deposit of a sum reasonably
estimated to cover the costs of issuing and serving the subpoena and the costs
described in subsection (e) of this section, the Executive Director or the
Chairman may issue a subpoena to require the attendance of a witness for examination
under oath or the production of a record, document, or other evidence relevant
to the investigation of, or a disciplinary proceeding related to, an alleged
violation of a statutory provision or rule enforced by the Board.
(b)
A subpoena must:
(1)
be issued in the name of the State of Texas;
(2)
be signed by the Executive Director or the Chairman;
(3)
be addressed to a sheriff, constable, or other party authorized
by the Texas Rules of Civil Procedure to serve a subpoena;
(4)
state the time and place at which the witness is required
to appear, the name of the person at whose instance the subpoena has been
issued, and the date of the subpoena's issuance;
(5)
include a specific description of any record, document,
or other evidence covered by the subpoena; and
(6)
be served by delivering a copy of the subpoena to the party
named in the subpoena.
(c)
A subpoena may be executed and returned at any time. The
person serving the subpoena shall make due return thereof, showing the time
and manner of service or showing that service was accepted by the witness
by a written memorandum signed by the witness and attached to the subpoena.
(d)
A deposition shall be taken in the manner prescribed for
depositions in the Administrative Procedure Act (APA).
(e)
A witness or deponent who is not a party to an enforcement
proceeding and who is subpoenaed or otherwise compelled by the Board to attend
any hearing or proceeding to provide testimony, give a deposition, or produce
a record, document, or other evidence shall be entitled to receive:
(1)
payment for mileage and reimbursement for transportation,
meal, and lodging expenses as required by the APA for going to and returning
from the place of the hearing or the place where the deposition is taken if
the place is more than 25 miles from the person's place of residence; and
(2)
a witness fee as required by the APA for each day or part
of a day the person is necessarily present as a witness or deponent.
(f)
Expenses and fees described in subsection (e) of this section
shall be paid by the party at whose request the witness appears or the deposition
is taken, on presentation of proper vouchers sworn by the witness and approved
by the Executive Director.
(g)
Payment for mileage and reimbursement for transportation,
meal, and lodging expenses for a witness whose presence is required by a subpoena
issued by the Executive Director or the Chairman shall be at the same rate
as is paid to a state employee traveling on state business.
§5.187.Administrative Penalty Schedule.
If the Board determines that an administrative penalty is the appropriate
sanction for a violation of any of the statutory provisions or rules enforced
by the Board, the following guidelines shall be applied to determine the amount
of the administrative penalty:
(1)
The Board shall consider the following factors to determine
whether the violation is minor, moderate, or major:
(A)
Seriousness of misconduct and efforts to correct the ground
for sanction:
(i)
Minor--the respondent has demonstrated that he/she was
unaware that his/her conduct was prohibited and unaware that the conduct was
reasonably likely to cause the harm that resulted from the conduct or the
respondent has demonstrated that there were significant extenuating circumstances
or intervening causes for the violation; and the respondent has demonstrated
that he/she provided a satisfactory remedy that alleviated or eliminated any
harm or threat to the health or safety of the public.
(ii)
Moderate--the violation shows that the respondent knowingly
disregarded a standard or practice normally followed by a reasonably prudent
person under the same or similar circumstances.
(iii)
Major--this is a violation of an order of the Board or
a violation that demonstrates gross negligence or recklessness; or the conduct
posed a serious threat to the health or safety of the public; or, after being
notified of the alleged violation and the harm or threat to the health or
safety of the public, the respondent intentionally refused or failed to provide
an available remedy to alleviate or eliminate the harm or threat to the health
or safety of the public.
(B)
Economic damage to property:
(i)
Minor--there was no apparent economic damage to property.
(ii)
Moderate--economic damage to property did not exceed $1,000,
or damage exceeding $1,000 was reasonably unforeseeable.
(iii)
Major--economic damage to property exceeded $1,000.
(C)
Sanction history:
(i)
Minor--this is the first time an administrative penalty
or other sanction has been imposed against the respondent, and the respondent
has not previously received a written warning or advisory notice from the
Board regarding the law's restrictions which was directed to the respondent.
(ii)
Moderate--this is the second time an administrative penalty
or other sanction has been imposed against the respondent; or the respondent
previously was subject to an order of the Board through which the Board could
have imposed an administrative penalty; or the respondent previously received
a written warning or advisory notice from the Board regarding the law's restrictions
which was directed to the respondent.
(iii)
Major--this is at least the third time an administrative
penalty or other sanction has been imposed against the respondent or the respondent
has been subject to an order of the Board through which the Board could have
imposed an administrative penalty.
(2)
After determining whether the violation is minor, moderate,
or major, the Board shall impose an administrative penalty as follows:
(A)
Minor violations--if the violation is minor in every category
described in subsection (1) of this section, an administrative penalty of
$350 shall be imposed.
(B)
Moderate violations--if the violation is moderate in any
category described in subsection (1) of this section, an administrative penalty
of not less than $351 and not more than $1,200 shall be imposed.
(C)
Major violations--if the violation is major in any category
described in subsection (1) of this section or if the Board determines that
the facts of the case indicate a higher penalty is necessary in order to deter
similar misconduct in the future, an administrative penalty of not less than
$1,201 and not more than $5,000 shall be imposed.
(3)
In order to determine the appropriate amount in a penalty
range described in subsection (2) of this section, the Board shall consider
the factors described in subsection (1) of this section.
(4)
If the facts of a case are unique or unusual, the Board
may suspend the guidelines described in this section.
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 June 15, 2004.
TRD-200403916
Cathy L. Hendricks, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Effective date: July 5, 2004
Proposal publication date: April 16, 2004
For further information, please call: (512) 305-8535
22 TAC §5.242
The Texas Board of Architectural Examiners adopts an amendment
to §5.242 for Title 22, Chapter 5, Subchapter K, concerning the board's
and the State Office of Administrative Hearings' responsibilities as they
pertain to contested cases, as published in the April 16, 2004, issue of the
This section generally describes the Board's procedures for addressing
contested cases and ensuring that the procedures are consistent with governing
law. As amended, the section clarifies that the administrative penalty guidelines
appearing in a separate subchapter of the rules are to govern the imposition
of all administrative penalties imposed by the Board or recommended by an
administrative law judge. The section is also amended to authorize the Board
to refuse to renew a respondent's certificate of registration in any case
where revocation of the respondent's certificate of registration is an appropriate
penalty for the respondent's conduct.
As amended, the section will ensure that the Board and any administrative
law judge who presides over a contested case will apply the same guidelines
for imposing all administrative penalties so that penalties will be imposed
in a consistent manner.
The board received no comments pertaining to the proposal to adopt this
section.
The amendment to this section is adopted pursuant to Section
1051.452 of Tex. Occupations Code Annotated ch. 1051, which directs the Board
to adopt an administrative penalty schedule to govern the amounts of all administrative
penalties imposed by the Board, Section 1053.251 of Tex. Occupations Code
Annotated ch. 1053, which lists refusal to renew a certificate of registration
as a disciplinary sanction, and pursuant to Section 1051.202 of Tex. Occupations
Code Annotated ch. 1051, which provides the Board with general authority to
promulgate rules necessary to the administration of its statutory responsibilities.
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 June 15, 2004.
TRD-200403917
Cathy L. Hendricks, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Effective date: July 5, 2004
Proposal publication date: April 16, 2004
For further information, please call: (512) 305-8535
Chapter 217.
LICENSURE, PEER ASSISTANCE AND PRACTICE
22 TAC §§217.1, 217.3, 217.6 - 217.10, 217.13, 217.15, 217.16, 217.19, 217.20
The Board of Nurse Examiners adopts amendments with one change
to 22 TAC §217.19(2). The proposed amendments to §§217.1, 217.3,
217.6 - 217.10, 217.13, 217.15, 217.16, and 217.20, concerning Licensure,
Peer Assistance, and Practice, are being adopted without change and were published
in the May 14, 2004, issue of the
Texas Register
(29 TexReg 4720). One editorial change was made in §217.19(2)
to remove a repetitive "or." Effective February 1, 2004, the Board of Nurse
Examiners and Board of Vocational Nurse Examiners were merged into one agency,
Board of Nurse Examiners. House Bill 1483, passed by the 78th Regular Legislative
Session, was the legislative action that implemented the consolidation. These
adopted amendments implement HB 1483 and the make-up and function of the new
Board of Nurse Examiners and are primarily for the purpose of providing consistent
licensing processes to all nurses. The existing Board of Vocational Nurse
Examiners' rules which are in conflict which these adopted amendments are
concurrently being adopted for repeal.
No comments were received in response to the proposed amendments.
The adoption of amendments to these sections is pursuant to the
authority of Texas Occupations Code §§301.151 and 301.152 which
authorizes the Board of Nurse Examiners to adopt, enforce, and repeal rules
consistent with its legislative authority under the Nursing Practice Act.
The adoption of the amendments implement §§301.251, 301.258, 301.261,
301.351, 301.352, 301.419, and 301.4515 of the Texas Occupations Code.
§217.19.Incident-Based Nursing Peer Review.
(a)
Minimum Due Process
(1)
The provisions of this subsection (a) apply:
(A)
to peer review for both registered nurses (RNs) and licensed
vocational nurses (LVNs). Any reference to "nurse" is a reference to both
RNs and LVNs. See Texas Occupations Code §303.001(1-3).
(B)
only to peer review conducted for purpose of evaluating
if a RN or LVN has engaged in unacceptable nursing practice.
(2)
Texas Occupations Code §303.001(5), states, "'Peer
review' means the evaluation of nursing services, the qualifications of a
nurse, the quality of patient care rendered by a nurse, the merits of a complaint
concerning a nurse or recommendation regarding a complaint." The peer review
process is one of fact finding, analysis and study of events by nurses in
a climate of collegial problem solving focused on obtaining all relevant information
about an event. Once a decision is made that a nurse is subject to peer review,
Texas Occupations Code §303.002(e) provides that the nurse is entitled
to minimum due process. The purpose of this rule is to define minimum due
process, to provide guidance to facilities in developing peer review plans,
to assure that nurses have knowledge of the plan, and to provide guidance
to the peer review committee in its fact finding process.
(3)
A facility conducting peer review shall have written policies
and procedures that, at a minimum, address:
(A)
level of participation of nurse or nurse's representative
at peer review proceeding beyond that required by Subsection (a)(4)(F) of
these rules (e.g., nurse's or representative's ability to question witnesses);
(B)
confidentiality and safeguards to prevent impermissible
disclosures including written agreement by all parties to abide by Texas Occupations
Code §§303.006 and 303.007;
(C)
handling of cases involving nurses suspected of having
problems with chemical dependency or mental illness in accordance with the
Texas Occupations Code §301.410;
(D)
reporting of nurses to the Board of Nurse Examiners by
peer review committee in accordance with the Texas Occupations Code §301.403;
and
(E)
effective date of changes to the policies which in no event
shall apply to peer review proceedings initiated before the change was adopted
unless agreed in writing by the nurse being reviewed.
(4)
In order to meet the minimum due process required by the
Texas Occupations Code chapter 303, the Nursing Peer Review Committee must:
(A)
comply with the membership and voting requirements as set
forth in Texas Occupations Code §303.003(a) - (d);
(B)
exclude from the committee any person or persons with administrative
authority for personnel decisions directly relating to the nurse;
(C)
provide written notice to the nurse in person or by certified
mail at the last known address the nurse has on file with the facility that
his/her practice is being evaluated, that the peer review committee will meet
on a specified date not sooner than 21 calendar days and not more than 45
calendar days from date of notice , unless otherwise agreed upon by the nurse
and peer review committee. Said notice must include a written copy of the
peer review plan, policies and procedures;
(D)
include in the written notice:
(i)
a description of the event(s) to be evaluated in sufficient
detail to inform the nurse of the incident, circumstances and conduct (error
or omission), including date(s), time(s), location(s), and individual(s) involved.
The patient/client shall be identified by initials or number to the extent
possible to protect confidentiality but the nurse shall be provided the name
of the patient/client;
(ii)
name, address, telephone number of contact person to receive
the nurse's response; and
(iii)
a copy of this rule (§217.19) and a copy of the
facility's peer review plan, policies and procedures.
(E)
provide the nurse the opportunity to review, in person
or by attorney, the documents concerning the event under review, at least
15 calendar days prior to appearing before the committee;
(F)
provide the nurse the opportunity to:
(i)
submit a written statement regarding the event under review;
(ii)
call witnesses, question witnesses, and be present when
testimony or evidence is being presented;
(iii)
be provided copies of the witness list and written testimony
or evidence at least 48 hours in advance of proceeding;
(iv)
make an opening statement to the committee;
(v)
ask questions of the committee and respond to questions
of the committee; and
(vi)
make a closing statement to the committee after all evidence
is presented;
(G)
conclude its review no more than fourteen (14) calendar
days from the peer review proceeding;
(H)
provide written notice to the nurse in person or by certified
mail at the last known address the nurse has on file with the facility of
the findings of the committee within ten (10) calendar days of when the committee's
review has been completed; and
(I)
permit the nurse to file a written rebuttal statement within
ten (10) calendar days of the notice of the committee's findings and make
the statement a permanent part of the peer review record to be included whenever
the committee's findings are disclosed.
(5)
Nurse's Right To Representation. A nurse shall have a right
of representation as set out in this section. The rights set out in this section
are minimum requirements and a facility may allow the nurse more representation.
The peer review process is not a legal proceeding; therefore, rules governing
legal proceedings and admissibility of evidence do not apply and the presence
of attorneys is not required. The nurse has the right to be accompanied to
the hearing by a nurse peer or an attorney. Representatives attending the
peer review hearing must comply with the facility's peer review policies and
procedures regarding participation beyond conferring with the nurse. If either
the facility or nurse will have an attorney or representative present at the
peer review hearing in any capacity, the facility or nurse must notify the
other at least seven (7) calendar days before the hearing that they will have
an attorney or representative attending the hearing and in what capacity.
Notwithstanding any other provisions of these rules, if an attorney representing
the facility or peer review committee is present at the peer review hearing
in any capacity, including serving as a member of the peer review committee,
the nurse is entitled to "parity of participation of counsel." "Parity of
participation of counsel" means that the nurse's attorney is able to participate
to the same extent and level as the facility's attorney; e.g., if the facility's
attorney can question witnesses, the nurse's attorney must have the same right.
(6)
Confidentiality of information presented to and/or considered
by the peer review committee shall be maintained and not disclosed except
as provided by Texas Occupations Code §§303.006 and 303.007. Disclosure/discussion
by a nurse with the nurse's attorney is proper because the attorney is bound
to the same confidentiality requirements as the nurse.
(7)
In evaluating a nurse's conduct, the committee shall review
the evidence to determine the extent to which any deficiency in care by the
nurse was the result of deficiencies in the nurse's judgment, knowledge, training,
or skill rather than other factors beyond the nurse's control. A determination
that a deficiency in care is attributable to a nurse must be based on the
extent to which the nurse's conduct was the result of a deficiency in the
nurse's judgment, knowledge, training, or skill.
(8)
If a peer review committee finds that a nurse has engaged
in conduct reportable to the Board of Nurse Examiners, the committee's report
shall include:
(A)
a description of any corrective action taken against the
nurse and
(B)
a statement as to whether the committee recommends that
formal disciplinary action be taken against the nurse.
(9)
Texas Occupations Code chapter 303, requires that peer
review be conducted in good faith. A nurse who knowingly participates in peer
review in bad faith is subject to disciplinary action by the Board under the
Texas Occupations Code §301.452(b). Examples of bad faith are taking
action against a nurse without providing the nurse the rights provided by
these rules or taking action based on personal animosity towards the nurse.
(10)
A nurse whose practice is being evaluated may properly
choose not to participate in the proceeding after the nurse has been notified
under rule 217.19(a)(4)(C). Texas Occupations Code §303.002(d) prohibits
nullifying by contract any right a nurse has under the peer review process.
(11)
The Chief Nursing Officer (CNO) of a facility is responsible
for knowing the requirements of this Rule and for taking reasonable steps
to assure that peer review is implemented and conducted in compliance with
this Rule. The CNO is the registered nurse who is administratively responsible
for nursing services.
(b)
Effect of Nurse Reporting to Peer Review Committee. If
a nurse reports a nurse to a nursing peer review committee for conduct that
the reporting nurse has a duty to report to the Board, the report to the committee
will satisfy the nurse's duty to report to the Board provided that the following
conditions are met:
(1)
The peer review committee shall report the nurse to the
Board, if it finds the nurse engaged in reportable conduct. If the peer review
committee finds that the conduct constitutes a minor incident as defined by
rule 217.16 (relating to reporting of minor incidents), it shall report in
accordance with the requirements of that rule;
(2)
The reporting nurse shall be notified of the peer review
committee's findings and shall be subject to Texas Occupations Code §303.006;
and
(3)
the reporting nurse accepts in good faith the findings
of the peer review committee.
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 June 15, 2004.
TRD-200403943
Katherine Thomas
Executive Director
Board of Nurse Examiners
Effective date: July 5, 2004
Proposal publication date: May 14, 2004
For further information, please call: (512) 305-6823
22 TAC §223.1, §223.2
The Board of Nurse Examiners adopts amendments to 22 TAC
Chapter 223 (Fees), §223.1 and §223.2 without changes to the proposed
text. The proposed amendment of these sections was published in the May 14,
2004, issue of the
Texas Register
(29 TexReg
4729) and will not be republished. These sections establish the fees necessary
for the administration of the Board's functions. Effective February 1, 2004,
the Board of Nurse Examiners and the Board of Vocational Nurse Examiners were
merged into one agency, the Board of Nurse Examiners. The Board of Vocational
Nurse Examiners ceased to exist as an agency. House Bill 1483, passed by the
78th Regular Legislative Session, was the legislative action that implemented
the consolidation. These adopted repeals implement HB 1483 and the make-up
and function of the new Board of Nurse Examiners. Chapter 223 (Fees) addresses
the agency's fee structure. Section 223.1 establishes the fees necessary for
the administration of the Board's functions. Section 223.2 (Charges for Public
Records) is being adopted for amendment due to the change in law allowed for
the charges imposed by agencies for public information. Those fees are now
set by the Texas Building and Procurement Commission.
No comments were received in response to the proposed repeal of these sections.
The adopted amendments of this chapter are pursuant to the authority
of Texas Occupations Code §§301.151 and 301.152 which authorizes
the Board of Nurse Examiners to adopt, enforce, and repeal rules consistent
with its legislative authority under the Nursing Practice Act.
No other rules, codes, or statutes will be affected by this adopted amendment.
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 June 15, 2004.
TRD-200403923
Katherine Thomas
Executive Director
Board of Nurse Examiners
Effective date: July 5, 2004
Proposal publication date: May 14, 2004
For further information, please call: (512) 305-6823
Chapter 235.
LICENSING
Subchapter A. APPLICATION FOR LICENSURE
22 TAC §235.1, §235.17
The Board of Nurse Examiners adopts the repeal of 22 TAC
Chapter 235 (Licensing), Subchapter A, §235.1 (Authority) and §235.17
(Temporary Permits). The proposed repeal of these sections was published in
the May 14, 2004, issue of the
Texas Register
(29
TexReg 4731). Effective February 1, 2004, the Board of Nurse Examiners and
the Board of Vocational Nurse Examiners were merged into one agency, the Board
of Nurse Examiners. The Board of Vocational Nurse Examiners ceased to exist
as an agency. House Bill 1483, passed by the 78th Regular Legislative Session,
was the legislative action that implemented the consolidation. These adopted
repeals implement HB 1483 and the make-up and function of the new Board of
Nurse Examiners. Concurrent with these adopted repeals are the adopted amendments
to 22 Texas Administrative Code chapter 217 (Licensure, Peer Assistance and
Practice) which incorporate Licensed Vocational Nurses into the Board of Nurse
Examiners' licensing rules. This adopted repeal is for the purpose of preventing
conflicting rules and to provide consistency in the nurse licensing process.
No comments were received in response to this proposed repeal.
The adopted repeal of these sections is pursuant to the authority
of Texas Occupations Code §§301.151 and 301.152 which authorizes
the Board of Nurse Examiners to adopt, enforce, and repeal rules consistent
with its legislative authority under the Nursing Practice Act. The adoption
of the repeal will not affect any existing statute.
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 June 15, 2004.
TRD-200403924
Katherine Thomas
Executive Director
Board of Nurse Examiners
Effective date: July 5, 2004
Proposal publication date: May 14, 2004
For further information, please call: (512) 305-6823
22 TAC §235.31, §235.32
The Board of Nurse Examiners adopts the repeal of 22 TAC
Chapter 235 (Licensing), Subchapter C (Examination), §235.31 (Applicability)
and §235.32 (Notification of Examination Results). The proposed repeal
of these sections was published in the May 14, 2004, issue of the
Texas Register
(29 TexReg 4732). Effective February 1, 2004, the Board
of Nurse Examiners and the Board of Vocational Nurse Examiners were merged
into one agency, the Board of Nurse Examiners. The Board of Vocational Nurse
Examiners ceased to exist as an agency. House Bill 1483, passed by the 78th
Regular Legislative Session, was the legislative action that implemented the
consolidation. These adopted repeals implement HB 1483 and the make-up and
function of the new Board of Nurse Examiners. Concurrent with these adopted
repeals are the adopted amendments to 22 Texas Administrative Code chapter
217 (Licensure, Peer Assistance and Practice) which incorporate Licensed Vocational
Nurses into the Board of Nurse Examiners' licensing rules. This adopted repeal
is for the purpose of preventing conflicting rules and to provide consistency
in the nurse licensing process.
No comments were received in response to the proposed repeal.
The adopted repeal of these sections is pursuant to the authority
of Texas Occupations Code §§301.151 and 301.152 which authorizes
the Board of Nurse Examiners to adopt, enforce, and repeal rules consistent
with its legislative authority under the Nursing Practice Act. The adoption
of the repeal will not affect any existing statute.
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 June 15, 2004.
TRD-200403925
Katherine Thomas
Executive Director
Board of Nurse Examiners
Effective date: July 5, 2004
Proposal publication date: May 14, 2004
For further information, please call: (512) 305-6823
22 TAC §§235.41 - 235.52
The Board of Nurse Examiners adopts the repeal of 22 TAC
Chapter 235 (Licensing), Subchapter D (Issuance of Licenses), §§235.41
- 235.52. The proposed repeal of these sections was published in the May 14,
2004, issue of the
Texas Register
(29 TexReg
4732). Effective February 1, 2004, the Board of Nurse Examiners and the Board
of Vocational Nurse Examiners were merged into one agency, the Board of Nurse
Examiners. The Board of Vocational Nurse Examiners ceased to exist as an agency.
House Bill 1483, passed by the 78th Regular Legislative Session, was the legislative
action that implemented the consolidation. These adopted repeals implement
HB 1483 and the make-up and function of the new Board of Nurse Examiners.
Concurrent with these adopted repeals are the adopted amendments to 22 Texas
Administrative Code chapter 217 (Licensure, Peer Assistance and Practice)
which incorporate Licensed Vocational Nurses into the Board of Nurse Examiners'
licensing rules and chapter 223 which consolidates the fee structure of the
agency. This adopted repeal is for the purpose of preventing conflicting rules
and to provide consistency in the nurse licensing and fee process.
No comments were received in response to the proposed repeal of these sections.
The adopted repeal of these sections is pursuant to the authority
of Texas Occupations Code §§301.151 and 301.152 which authorizes
the Board of Nurse Examiners to adopt, enforce, and repeal rules consistent
with its legislative authority under the Nursing Practice Act. The adoption
of the repeal will not affect any existing statute.
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 June 15, 2004.
TRD-200403921
Katherine Thomas
Executive Director
Board of Nurse Examiners
Effective date: July 5, 2004
Proposal publication date: May 14, 2004
For further information, please call: (512) 305-6823
Subchapter A. DEFINITIONS
22 TAC §236.1
The Board of Nurse Examiners adopts the repeal of 22 TAC
Chapter 236 concerning Nurse Licensure Compact, and specifically Subchapter
A (Definitions), §236.1. Subchapter B (Issuance of a License by a Compact
Party State) is being adopted for repeal concurrently with this subchapter.
The proposed repeal of this section was published in the May 14, 2004, issue
of the
Texas Register
(29 TexReg 4733). Effective
February 1, 2004, the Board of Nurse Examiners and the Board of Vocational
Nurse Examiners were merged into one agency, the Board of Nurse Examiners.
The Board of Vocational Nurse Examiners ceased to exist as an agency. House
Bill 1483, passed by the 78th Regular Legislative Session, was the legislative
action that implemented the consolidation. These adopted repeals implement
HB 1483 and the make-up and function of the new Board of Nurse Examiners.
22 Texas Administrative Code chapter 220 (Nurse Licensure Compact) also contains
rules addressing the nurse licensure compact and includes all nurses. This
adopted repeal is for the purpose of preventing repetitious rules.
No comments were received in response to the proposed repeal.
The adopted repeal of this section is pursuant to the authority
of Texas Occupations Code §§301.151 and 301.152 which authorizes
the Board of Nurse Examiners to adopt, enforce, and repeal rules consistent
with its legislative authority under the Nursing Practice Act. The adopted
repeals will affect chapter 304 of the Texas Occupations Code which is entitled
Nurse Licensure Compact.
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 June 15, 2004.
TRD-200403890
Katherine Thomas
Executive Director
Board of Nurse Examiners
Effective date: July 5, 2004
Proposal publication date: May 14, 2004
For further information, please call: (512) 305-6823
22 TAC §§236.11 - 236.13
The Board of Nurse Examiners adopts the repeal of 22 TAC
Chapter 236 concerning Nurse Licensure Compact, and specifically Subchapter
B (Issuance of a License by a Compact Party State), §§236.11 - 236.13.
Subchapter A (Definitions) is being adopted for repeal concurrently with this
subchapter. The proposed repeal of this section was published in the May 14,
2004, issue of the
Texas Register
(29 TexReg
4733). Effective February 1, 2004, the Board of Nurse Examiners and the Board
of Vocational Nurse Examiners were merged into one agency, the Board of Nurse
Examiners. The Board of Vocational Nurse Examiners ceased to exist as an agency.
House Bill 1483, passed by the 78th Regular Legislative Session, was the legislative
action that implemented the consolidation. These adopted repeals implement
HB 1483 and the make-up and function of the new Board of Nurse Examiners.
22 Texas Administrative Code chapter 220 (Nurse Licensure Compact) also contains
rules addressing the nurse licensure compact and includes all nurses. This
adopted repeal is for the purpose of preventing repetitious rules.
No comments were received in response to the proposed repeal of this section.
The adopted repeal of this section is pursuant to the authority
of Texas Occupations Code §§301.151 and 301.152 which authorizes
the Board of Nurse Examiners to adopt, enforce, and repeal rules consistent
with its legislative authority under the Nursing Practice Act. The adopted
repeals will affect chapter 304 of the Texas Occupations Code which is entitled
Nurse Licensure Compact.
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 June 15, 2004.
TRD-200403922
Katherine Thomas
Executive Director
Board of Nurse Examiners
Effective date: July 5, 2004
Proposal publication date: May 14, 2004
For further information, please call: (512) 305-6823
Subchapter A. DEFINITIONS
22 TAC §239.1
The Board of Nurse Examiners adopts the repeal of 22 TAC
Chapter 239 (Contested Case Procedure), Subchapter A (Definitions), §239.1.
The proposed repeal of this section was published in the May 14, 2004, issue
of the
Texas Register
(29 TexReg 4734). Effective
February 1, 2004, the Board of Nurse Examiners and the Board of Vocational
Nurse Examiners were merged into one agency, the Board of Nurse Examiners.
The Board of Vocational Nurse Examiners ceased to exist as an agency. House
Bill 1483, passed by the 78th Regular Legislative Session, was the legislative
action that implemented the consolidation. These adopted repeals implement
HB 1483 and the make-up and function of the new Board of Nurse Examiners.
Concurrent with these adopted repeals are the adopted amendments to 22 Texas
Administrative Code chapter 217 (Licensure, Peer Assistance and Practice)
which incorporate Licensed Vocational Nurses into the Board of Nurse Examiners'
licensing rules. This adopted repeal is for the purpose of preventing conflicting
definitions.
No comments were received in response to the proposed repeal of this section.
The adopted repeal of this section is pursuant to the authority
of Texas Occupations Code §§301.151 and 301.152 which authorizes
the Board of Nurse Examiners to adopt, enforce, and repeal rules consistent
with its legislative authority under the Nursing Practice Act. The adoption
of the repeal will not affect any existing statute.
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 June 15, 2004.
TRD-200403926
Katherine Thomas
Executive Director
Board of Nurse Examiners
Effective date: July 5, 2004
Proposal publication date: May 14, 2004
For further information, please call: (512) 305-6823
22 TAC §239.16, §239.20
The Board of Nurse Examiners adopts the repeal of 22 TAC
Chapter 239 (Contested Case Procedure), Subchapter B (Enforcement), §239.16
and §239.20. The proposed repeal of these sections was published in the
May 14, 2004, issue of the
Texas Register
(29
TexReg 4734). Effective February 1, 2004, the Board of Nurse Examiners and
the Board of Vocational Nurse Examiners were merged into one agency, the Board
of Nurse Examiners. The Board of Vocational Nurse Examiners ceased to exist
as an agency. House Bill 1483, passed by the 78th Regular Legislative Session,
was the legislative action that implemented the consolidation. These adopted
repeals implement HB 1483 and the make-up and function of the new Board of
Nurse Examiners. Concurrent with these adopted repeals are the adopted amendments
to 22 Texas Administrative Code chapter 217 (Licensure, Peer Assistance and
Practice) which incorporate Licensed Vocational Nurses into the Board of Nurse
Examiners' licensing and peer assistance rules and chapter 223 which consolidates
the fee structure of the agency. This adopted repeal is for the purpose of
preventing conflicting rules and to provide consistency in the nurse peer
assistance and fee process.
No comments were received in response to the proposed repeal.
The adopted repeal of this section is pursuant to the authority
of Texas Occupations Code §§301.151 and 301.152 which authorizes
the Board of Nurse Examiners to adopt, enforce, and repeal rules consistent
with its legislative authority under the Nursing Practice Act. The adoption
of the repeal will not affect any existing statute.
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 June 15, 2004.
TRD-200403937
Katherine Thomas
Executive Director
Board of Nurse Examiners
Effective date: July 5, 2004
Proposal publication date: May 14, 2004
For further information, please call: (512) 305-6823
22 TAC §§239.61 - 239.64
The Board of Nurse Examiners adopts the repeal of 22 TAC
Chapter 239 (Contested Case Procedure), Subchapter E (Reinstatement Process), §§239.61
- 239.64. The proposed repeal of these sections was published in the May 14,
2004, issue of the
Texas Register
(29 TexReg
4735). Effective February 1, 2004, the Board of Nurse Examiners and the Board
of Vocational Nurse Examiners were merged into one agency, the Board of Nurse
Examiners. The Board of Vocational Nurse Examiners ceased to exist as an agency.
House Bill 1483, passed by the 78th Regular Legislative Session, was the legislative
action that implemented the consolidation. These adopted repeals implement
HB 1483 and the make-up and function of the new Board of Nurse Examiners.
Concurrent with these adopted repeals are the adopted amendments to 22 Texas
Administrative Code chapter 217 (Licensure, Peer Assistance and Practice)
which incorporate Licensed Vocational Nurses into the Board of Nurse Examiners'
reinstatement process. This adopted repeal is for the purpose of preventing
conflicting rules and to provide consistency in the reinstatement process.
No comments were received in response to the proposed repeal.
The adopted repeal of this section is pursuant to the authority
of Texas Occupations Code §§301.151 and 301.152 which authorizes
the Board of Nurse Examiners to adopt, enforce, and repeal rules consistent
with its legislative authority under the Nursing Practice Act. The adoption
of the repeal will not affect any existing statute.
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 June 15, 2004.
TRD-200403938
Katherine Johnston
Executive Director
Board of Nurse Examiners
Effective date: July 5, 2004
Proposal publication date: May 14, 2004
For further information, please call: (512) 305-6823
Subchapter H. PROFESSIONAL CONDUCT
Subchapter I. DISCIPLINARY ACTION
Subchapter K. PRACTICE; ARCHITECT REQUIRED
Subchapter L. HEARINGS--CONTESTED CASES
Chapter 3.
LANDSCAPE ARCHITECTS
Subchapter H. PROFESSIONAL CONDUCT
Subchapter I. DISCIPLINARY ACTIONS
Subchapter K. HEARINGS--CONTESTED CASES
Chapter 5.
INTERIOR DESIGNERS
Subchapter H. PROFESSIONAL CONDUCT
Subchapter I. DISCIPLINARY ACTION
Subchapter K. HEARINGS--CONTESTED CASES
Part 11.
BOARD OF NURSE EXAMINERS
Chapter 223.
FEES
Part 12.
BOARD OF VOCATIONAL NURSE EXAMINERS
Subchapter C. EXAMINATION
Subchapter D. ISSUANCE OF LICENSES
Chapter 236.
NURSE LICENSURE COMPACT
Subchapter B. ISSUANCE OF A LICENSE BY A COMPACT PARTY STATE
Chapter 239.
CONTESTED CASE PROCEDURE
Subchapter B. ENFORCEMENT
Subchapter E. REINSTATEMENT PROCESS
Chapter 240.
PEER REVIEW AND REPORTING