Part 10.
TEXAS FUNERAL SERVICE COMMISSION
Chapter 201.
LICENSING AND ENFORCEMENT--PRACTICE AND PROCEDURE
22 TAC §201.16
The Texas Funeral Service Commission proposes an amendment
to Title 22, Texas Administrative Code, Chapter 201, §201.16, concerning
Memorandum of Understanding with the Texas Department of Health.
The amendment to §201.16 is proposed because subsection (d) delineates
responsibility between the Commission and Texas Department of Health (TDH).
The proposed amendment is a restatement of the Commission's enforcement authority
over certain violations of the Health and Safety Code and clarifies that the
Commission has authority to take disciplinary action for certain violations
of TDH rules.
O. C. "Chet" Robbins, Executive Director, has determined that for the first
five-year period the amendment is in effect, there will be no fiscal implication
for the state or local governments as a result of enforcing or administering
the proposed amendment.
Mr. Robbins further has determined that for each year of the first five-year
period the amendment is in effect, the public benefit anticipated as a result
of enforcing the amended section will be eliminating redundancy. There will
be no effect on large, small or micro-businesses. The anticipated economic
costs to persons who are required to comply with the amendment will be no
more or less than the costs to the individuals under §201.16 before this
amendment and there is no impact on local employment.
Comments on the proposal may be submitted to Mr. Robbins at P.O. Box 12217,
Capital Station, Austin, Texas 78711-1440, (512) 479-5064 (fax), or electronically
to chet.robbins@tfsc.state.tx.us.
The amendment to §201.16 is proposed under Texas Occupations
Code, §651.152. The commission interprets §651.152 as authorizing
it to adopt rules as necessary to administer Chapter 651.
No other statutes, articles, or codes are affected by the proposal.
§201.16.Memorandum of Understanding with the Texas Department of Health.
(a) - (c)
(No change.)
(d)
Delegation of responsibilities. The Department and TFSC
agree that the agencies shall have the following responsibilities.
(1)
(No change.)
(2)
The Texas Funeral Service Commission (TFSC) shall have
primary responsibility for the enforcement of the laws, rules, and policies
governing the licensing of funeral directors, embalmers, funeral and commercial
embalming establishments. Except as may be otherwise provided by law, the
TFSC has authority:
(A)
(No change.)
(B)
to assess an administrative penalty or to reprimand,
revoke, suspend, probate, deny or impose any combination of sanctions against
a licensee in accordance with Texas Occupations Code Chapter 651, if the licensee
has violated Chapter 193 or 195 of the Code or 25 TAC Chapter 181 of the Department
rules
[
(3)
(No change.)
(e)
(No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on June 10, 2004.
TRD-200403819
O. C. Robbins
Executive Director
Texas Funeral Service Commission
Earliest possible date of adoption: July 25, 2004
For further information, please call: (512) 936-2474
22 TAC §203.6
The Texas Funeral Service Commission proposes an amendment
to Title 22, Texas Administrative Code, Chapter 203, §203.6, concerning
Provisional Licensees.
The amendment to §203.6 is proposed to assist staff in dealing with
day-to-day problems that arise from the provisional program. The amendments
also clarify instances when a licensee will need to restart the provisional
program.
O. C. "Chet" Robbins, Executive Director, has determined that for the first
five-year period the amendment is in effect, there will be no fiscal implication
for the state or local governments as a result of enforcing or administering
the proposed amendment.
Mr. Robbins further has determined that for each year of the first five-year
period the amendment is in effect, the public benefit anticipated as a result
of enforcing the amended section will be eliminating redundancy. There will
be no effect on large, small or micro-businesses. The anticipated economic
costs to persons who are required to comply with the amendment will be no
more or less than the costs to the individuals under §203.6 before this
amendment and there is no impact on local employment.
Comments on the proposal may be submitted to Mr. Robbins at P.O. Box 12217,
Capital Station, Austin, Texas 78711-1440, (512) 479-5064 (fax), or electronically
to chet.robbins@tfsc.state.tx.us.
The amendment to §203.6 is proposed under Texas Occupations
Code, §651.152. The commission interprets §651.152 as authorizing
it to adopt rules as necessary to administer Chapter 651.
No other statutes, articles, or codes are affected by the proposal.
§203.6.Provisional Licensees.
(a) - (b)
(No change.)
(c)
The provisional licensure period is a minimum of 12 and
a maximum of 24 consecutive months,
beginning on the date of the first
training report filed with the commission. The licensure period may be
[
(d) - (e)
(No change.)
(f)
A funeral director provisional licensee
shall sign and affix the licensee's license number on all funeral purchase
agreements for which credit is claimed in a case report.
(g)
An embalmer provisional licensee shall
submit the authorization to embalm form, the instructor's embalming affidavit,
and the embalming case report for which credit is claimed in a training report.
(h)
Provisional licensees shall submit a copy
of the authorization to cremate for each cremation case for which credit is
claimed in a training report.
(i)
Provisional licensees shall retain copies
of all training reports with supporting documentation for all case credit
claimed for 2 years from the date of the training report.
(j)
[
(k)
[
(l)
[
(m)
[
(n)
[
(o)
[
(p)
[
(q)
[
(r)
[
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on June 10, 2004.
TRD-200403818
O. C. Robbins
Executive Director
Texas Funeral Service Commission
Earliest possible date of adoption: July 25, 2004
For further information, please call: (512) 936-2474
22 TAC §203.22
The Texas Funeral Service Commission proposes an amendment
to Title 22, Texas Administrative Code, Chapter 203, §203.22, concerning
Required Documentation for Embalming.
The amendment to §203.22 is proposed to require mortuary schools to
retain embalming case reports and require establishments and provisional licensees
to retain embalming documents for two years.
O. C. "Chet" Robbins, Executive Director, has determined that for the first
five-year period the amendment is in effect, there will be no fiscal implication
for the state or local governments as a result of enforcing or administering
the proposed amendment.
Mr. Robbins further has determined that for each year of the first five-year
period the amendment is in effect, the public benefit anticipated as a result
of enforcing the amended section will be eliminating redundancy. There will
be no effect on large, small or micro-businesses. The anticipated economic
costs to persons who are required to comply with the amendment will be no
more or less than the costs to the individuals under §203.22 before this
amendment and there is no impact on local employment.
Comments on the proposal may be submitted to Mr. Robbins at P.O. Box 12217,
Capital Station, Austin, Texas 78711-1440, (512) 479-5064 (fax), or electronically
to chet.robbins@tfsc.state.tx.us.
The amendment to §203.22 is proposed under Texas Occupations
Code, §651.152. The commission interprets §651.152 as authorizing
it to adopt rules as necessary to administer Chapter 651.
No other statutes, articles, or codes are affected by the proposal.
§203.22.Required Documentation for Embalming.
(a) - (f)
(No change.)
(g)
A copy of the Embalming Authorization and the Instructors
Affidavit
case report shall
[
(h) - (j)
(No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on June 10, 2004.
TRD-200403817
O. C. Robbins
Executive Director
Texas Funeral Service Commission
Earliest possible date of adoption: July 25, 2004
For further information, please call: (512) 936-2474
22 TAC §203.26, §203.34
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Funeral Service Commission or in the Texas Register office, Room
245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Texas Funeral Service Commission proposes the
repeal of §203.26, concerning Licensure of Funeral Directors and Embalmers
and §203.34, concerning Reinstatement of License.
The proposed repeal of §203.26 and §203.34 is necessary in order
to propose new §203.26. The new §203.26 will bring into a single
rule the subject matter now covered by two rules. Further, new §203.26
is clearer to understand than its predecessor.
O. C. "Chet" Robbins, Executive Director, has determined that for the first
five-year period the repeal is in effect, there will be no fiscal implication
for the state or local governments as a result of enforcing or administering
the proposed repeal.
Mr. Robbins further has determined that for each year of the first five-year
period the repeal is in effect, the public benefit anticipated as a result
of enforcing the repeal of §203.26 and §203.34 will be eliminating
redundancy. There will be no effect on large, small or micro-businesses. The
anticipated economic costs to persons who are required to comply with the
repeal will be no more or less than the costs to the individuals under §203.26
and §203.34 before the repeal and there is no impact on local employment.
Comments on the proposal may be submitted to Mr. Robbins at P.O. Box 12217,
Capital Station, Austin, Texas 78711-1440, (512) 479-5064 (fax), or electronically
to chet.robbins@tfsc.state.tx.us.
The repeal of §203.26 and §203.34 is proposed under
Texas Occupations Code, §651.152. The commission interprets §651.152
as authorizing it to adopt rules as necessary to administer Chapter 651.
No other statutes, articles, or codes are affected by the proposal.
§203.26.Licensure of Funeral Directors and Embalmers.
§203.34.Reinstatement of License.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on June 10, 2004.
TRD-200403822
O. C. Robbins
Executive Director
Texas Funeral Service Commission
Earliest possible date of adoption: July 25, 2004
For further information, please call: (512) 936-2474
22 TAC §203.26
The Texas Funeral Service Commission proposes new Title 22,
Texas Administrative Code, Chapter 203, §203.26, Funeral Directors and
Embalmers License Requirements and Procedure. The proposed new §203.26
will bring into a single rule the subject matter that was previously covered
by §203.26 and §203.34 which are simultaneously proposed for repeal
in this issue of the
Texas Register
. Further,
new §203.26 is clearer to understand than its predecessor.
O. C. "Chet" Robbins, Executive Director, has determined that for the first
five-year period the new section is in effect, there will be no fiscal implication
for the state or local governments as a result of enforcing or administering
the proposed section.
Mr. Robbins further has determined that for each year of the first five-year
period the new section is in effect, the public benefits anticipated as a
result of enforcing the section will be the clarification of chapel requirements
for funeral establishments. There will be no effect on large, small or micro-businesses.
The anticipated economic costs to persons who are required to comply with
the new section will be no more nor less than the costs to the individuals
before this new section becomes effective and there is no impact on local
employment.
Comments on the proposal may be submitted to Mr. Robbins at P.O. Box 12217,
Capital Station, Austin, Texas 78711-1440, (512) 479-5064 (fax), or electronically
to chet.robbins@tfsc.state.tx.us.
The new §203.26 is proposed under Texas Occupations Code, §651.152.
The commission interprets §651.152 as authorizing it to adopt rules as
necessary to administer Chapter 651.
No other statutes, articles, or codes are affected by the proposal.
§203.26.Funeral Directors and Embalmers License Requirements and Procedure.
(a)
License Required: A person may not engage in funeral directing
or embalming in this state without holding a license issued by the Commission,
unless the person is a mortuary student acting under the supervision and direction
of a licensed funeral director or embalmer.
(b)
Initial License and Fees:
(1)
An applicant for an initial license must meet the eligibility
requirements of Texas Occupations Code, §651.253.
(2)
Initial licenses issued after March 5, 2003 expire on the
last day of the licensee's birth month not less than one year nor more than
two years following the license issue date. The monthly fee for the initial
license, payable in a lump sum, is equal to one twenty-fourth (1/24) of the
biennial license fee.
(3)
The renewal period of a license issued under subsection
(a) of this section is two years beginning on the 1st day of the month following
the licensee's birth month.
(4)
The licensing fee shall accompany the application for licensure.
The amount of the licensing and renewal fees are posted on the commission's
website at www.tfsc.state.tx.us.
(c)
Outstanding Licenses
(1)
Individual licenses outstanding on March 5, 2003 expire
on May 31 or November 30 two years from their issue date.
(2)
The first renewal period for a license described in paragraph
(1) of this subsection is the number of months from its expiration date to
the last day of the licensee's birth month not less than one year nor more
than two years following the license issue date. The monthly fee for the initial
license, payable in a lump sum, is equal to one twenty-fourth (1/24) the biennial
license fee.
(3)
A license described in paragraph (2) of this subsection
must be renewed within two years following the last day of the licensee's
birth month and biennially thereafter.
(d)
Renewal Procedures and Conditions
(1)
A license may be renewed prior to its expiration if the
licensee has paid the renewal fee and met the requirements of §203.30
of this chapter (relating to Continuing Education).
(2)
A person whose license is expired for more than 90 days
or less may renew the license by meeting the requirements of this subsection,
except that the renewal fee is 1-1/2 times the amount of the normal renewal
fee
(e)
A person whose license is expired for more than 90 days
but less than one year may renew the license by meeting the requirements of
subsection (d) of this section, except that the renewal fee is two times the
amount of the normal renewal fee.
(f)
A person whose license is expired for one year or more
may not renew the license. The person may obtain a new license by again meeting
the requirements, including the examination requirements, of Texas Occupations
Code, §651.253 and the payment of the appropriate application fee.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on June 10, 2004.
TRD-200403825
O. C. Robbins
Executive Director
Texas Funeral Service Commission
Earliest possible date of adoption: July 25, 2004
For further information, please call: (512) 936-2474
22 TAC §203.36
The Texas Funeral Service Commission proposes new Title 22,
Texas Administrative Code, Chapter 203, §203.36, concerning Temporary
Operation Authorization--Damaged Establishments. New §203.36 provides
a procedure for granting a temporary operation authorization to funeral or
crematory establishments that are damaged by natural disasters.
O. C. "Chet" Robbins, Executive Director, has determined that for the first
five-year period the new section is in effect, there will be no fiscal implication
for the state or local governments as a result of enforcing or administering
the proposed section.
Mr. Robbins further has determined that for each year of the first five-year
period the new section is in effect, the public benefits anticipated as a
result of enforcing the section will be the clarification of chapel requirements
for funeral establishments. There will be no effect on large, small or micro-businesses.
The anticipated economic costs to persons who are required to comply with
this new section will be no more nor less than the costs to the individuals
before this new section becomes effective and there is no impact on local
employment.
Comments on the proposal may be submitted to Mr. Robbins at P.O. Box 12217,
Capital Station, Austin, Texas 78711-1440, (512) 479-5064 (fax), or electronically
to chet.robbins@tfsc.state.tx.us.
The new §203.36 is proposed under Texas Occupations Code, §651.152.
The commission interprets §651.152 as authorizing it to adopt rules as
necessary to administer Chapter 651.
No other statutes, articles, or codes are affected by the proposal.
§203.36.Temporary Operation Authorization--Damaged Establishments.
(a)
The commission may grant a temporary operation authorization
to a licensed funeral or crematory establishment to operate at a temporary
location if the establishment is damaged by fire, flood, or other natural
disaster.
(b)
The temporary location must meet the all requirements for
funeral and crematory establishments under Texas Occupations Code, Chapter
651 and these rules.
(c)
The application for a temporary operation authorization
shall be in writing, shall detail the circumstances which prevent the conduct
of business at the licensed location, and shall provide an estimated date
by which the licensed location will be made ready for operation.
(d)
All funeral services provided to the public during any
grace period shall be performed by or under the supervision of a licensed
funeral director.
(e)
All crematory services shall be performed by a person certified
to operate the cremation chamber whose name is on file with the commission
as required by Texas Occupations Code, §651.657 and §205.3(a) of
this title (relating to Crematory License Requirement and Procedure).
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on June 10, 2004.
TRD-200403826
O. C. Robbins
Executive Director
Texas Funeral Service Commission
Earliest possible date of adoption: July 25, 2004
For further information, please call: (512) 936-2474
22 TAC §§205.1 - 205.3
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Funeral Service Commission or in the Texas Register office, Room
245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Texas Funeral Service Commission proposes the
repeal of Title 22, Part 10, Chapter 205, §§205.1 - 205.3, concerning
Registration of Cemeteries and Crematories.
The proposed repeal of Chapter 205 and the proposed new Chapter 205 will
include in one rule the licensing and fee requirements for cemeteries and
crematories and the crematory rules the Commission is authorized to adopt
under House Bill 1538, 78th Legislature, Regular Session.
O. C. "Chet" Robbins, Executive Director, has determined that for the first
five-year period the repeal is in effect, there will be no fiscal implication
for the state or local governments as a result of enforcing or administering
the proposed repeal.
Mr. Robbins further has determined that for each year of the first five-year
period the repeal is in effect, the public benefit anticipated as a result
of enforcing the repeal will be eliminating redundancy. There will be no effect
on large, small or micro-businesses. The anticipated economic costs to persons
who are required to comply with the repeal will be no more or less than the
costs to the individuals under Chapter 205 before the repeal and there is
no impact on local employment.
Comments on the proposal may be submitted to Mr. Robbins at P.O. Box 12217,
Capital Station, Austin, Texas 78711-1440, (512) 479-5064 (fax), or electronically
to chet.robbins@tfsc.state.tx.us.
The repeal of §§205.1 - 205.3 is proposed under Texas
Occupations Code, §651.152. The commission interprets §651.152 as
authorizing it to adopt rules as necessary to administer Chapter 651.
No other statutes, articles, or codes are affected by the proposal.
§205.1.Registration of Cemeteries.
§205.2.Fees for Registration of Cemeteries.
§205.3.Fees for Licensing of Crematory Establishment.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on June 10, 2004.
TRD-200403821
O. C. Robbins
Executive Director
Texas Funeral Service Commission
Earliest possible date of adoption: July 25, 2004
For further information, please call: (512) 936-2474
22 TAC §§205.1, 205.3, 205.5, 205.7, 205.9, 205.11, 205.13, 205.15
The Texas Funeral Service Commission proposes new Title 22,
Texas Administrative Code, Chapter 205, §§205.1, 205.3, 205.5, 205.7,
205.9, 205.11, 205.13, and 205.15, concerning Cemeteries and Crematories.
The new chapter is proposed because the Commission is authorized to adopt
rules under House Bill 1538 78th Legislature, Regular Session.
O. C. "Chet" Robbins, Executive Director, has determined that for the first
five-year period the new sections are in effect, there will be no fiscal implication
for the state or local governments as a result of enforcing or administering
the proposed sections.
Mr. Robbins further has determined that for each year of the first five-year
period the new sections are in effect, the public benefit anticipated as a
result of enforcing the sections will be the implementation of a policy encouraging
the use of alternative dispute resolution procedures for the resolution of
internal and external disputes. There will be no effect on large, small or
micro-businesses. The anticipated economic costs to persons who are required
to comply with the new sections will be no more nor less than the costs to
the individuals before the new sections become effective and there is no impact
on local employment.
Comments on the proposal may be submitted to Mr. Robbins at P.O. Box 12217,
Capital Station, Austin, Texas 78711-1440, (512) 479-5064 (fax), or electronically
to chet.robbins@tfsc.state.tx.us.
The new sections are proposed under Texas Occupations Code, §651.152.
The commission interprets §651.152 as authorizing it to adopt rules as
necessary to administer Chapter 651.
No other statutes, articles, or codes are affected by the proposal.
§205.1.Cemetery License Requirements and Procedure.
(a)
All cemeteries that conduct business, other than those
described in Texas Occupations Code, §651.353, are required to be licensed
by the commission.
(b)
The licensing fee for cemeteries shall accompany the application
for licensure. The amount of the licensing and renewal fees are posted on
the commission's website at www.tfsc.state.tx.us.
(c)
A license is for one year and is automatically renewed
upon timely receipt of the renewal fee by the commission.
(d)
A cemetery that renews its license on or before the 30th
day following the license expiration date shall pay, in addition to the renewal
fee, a late payment penalty equal in amount to the renewal fee.
(e)
A cemetery that fails to renew its license on or before
the 30th day following the license renewal date may not renew the license
and may not operate as a cemetery until receipt of a new license.
(f)
The license of a perpetual care cemetery is automatically
renewed upon receipt by the commission of a timely filed renewal form.
§205.3.Crematory License Requirement and Procedure.
(a)
The crematory establishment license application shall be
on a form furnished by the commission and shall contain all information required
by Texas Occupations Code, §651.657, including:
(1)
a statement that all operators of the cremation chamber
are certified by a reputable organization approved by the Commission;
(2)
the names of all persons certified to operate the cremation
chamber and;
(3)
must be submitted with all required documentation prior
to the Commission inspection and payment of licensing fees.
(b)
The establishment shall submit the licensing fee after
it has passed inspection. The amount of the licensing and renewal fees are
posted on the commission's website at www.tfsc.state.tx.us.
(c)
A license is for one year.
(d)
The license may be renewed by filing with the commission
a renewal application accompanied by the renewal fee and the Crematory Annual
Report required by Texas Occupations Code, §651.658(a)(1) and §205.7
of this chapter (relating to Crematory Annual Report, Extensions for Good
Cause, and Late Fees).
(e)
The renewal application must contain the information required
by Texas Occupations Code §651.657 and subsection (a) of this section
or a statement that the information previously furnished has not changed.
(f)
The commission may not renew an application until the applicant
has met the requirements of Texas Occupations Code §651.658(a).
(g)
A crematory that fails to renew its license by its renewal
date shall pay, in addition to the renewal fee, a late payment penalty equal
in amount to the renewal fee.
(h)
The license that is not renewed within 30 days of its expiration
date may not be renewed. In this circumstance a new license is required.
§205.5.Acceptance of Remains.
A crematory not licensed as a funeral establishment may not accept
deceased human remains for cremation until cremation is authorized by a justice
of the peace or a medical examiner in the county in which the death occurred.
§205.7.Waiting Period for Cremation.
Cremation may not occur sooner than 48 hours following the time of
death indicated on the death certificate unless the waiting period is waived
in writing by a justice of the peace, a medical examiner in the county in
which the death occurred or a court order.
§205.9.Crematory Annual Report, Extensions for Good Cause, and Late Fees.
(a)
The annual report required by Texas Occupation Code §651.658
shall cover the period from January 1 to December 31.
(b)
The report must be postmarked by January 30 of the following
year.
(c)
The commission shall grant an extension for filing the
annual report for no more than 60 days upon proof of good cause.
(d)
Good cause for purposes Texas Occupation Code §651.658(e)
and subsection (c) of this section is an event beyond the control of the crematory
owner or operator that prevents the owner or operator from timely completing
and filing the annual report.
(e)
Requests for extensions of time to file the annual report
based on good cause will not be approved if received by the commission later
than January 4 following the end of the year for which the report is due.
(f)
A $100 late fee will be imposed for each day a crematory
establishment fails to submit the annual report if the commission has not
granted an extension of time for filing the report. The commission has no
authority to waive or reduce the late fee.
§205.11.Prerequisites for Cremation.
(a)
Health and Safety Code §715.051 provides that a crematory
may cremate deceased human remains upon receipt of a cremation authorization
form signed an authorizing agent and either a death certificate or a burial
transit permit issued by a local registrar reflecting that the deceased human
remains may be cremated.
(b)
As a practical matter, however, three documents are required
to accomplish the cremation of deceased human remains:
(1)
a cremation authorization form;
(2)
a death certificate or other death record; and
(3)
a burial transit permit; a burial transit permit is not
required under Texas Occupations Code Chapter 651 but the Texas Department
of Health (TDH) remains authorized to regulate the transportation of dead
bodies under Health and Safety Code §694.001. TDH 25 TAC §181.2
(relating to Assuming Custody of Body) requires a funeral director or person
acting as such to obtain a burial transit permit from the local registrar
if a body is to be cremated.
§205.13.Written Waiver of Identification Required.
A waiver of a right of identification under Health and Safety Code §715.104(b)
is valid only if given in writing.
§205.15.Commingling Limitations.
A crematory may not simultaneously cremate deceased human remains and
any other materials or remains unless the other materials or remains are specifically
disclosed on the cremation authorization form.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on June 10, 2004.
TRD-200403823
O. C. Robbins
Executive Director
Texas Funeral Service Commission
Earliest possible date of adoption: July 25, 2004
For further information, please call: (512) 936-2474
22 TAC §206.1
The Texas Funeral Service Commission proposes new Title 22,
Texas Administrative Code, Chapter 206, §206.1, concerning Guaranteed
Student Loans. The new section is proposed because Texas Education Code §57.491
directs all regulatory licensing agencies to adopt rules on this subject.
O. C. "Chet" Robbins, Executive Director, has determined that for the first
five-year period the new section is in effect, there will be no fiscal implication
for the state or local governments as a result of enforcing or administering
the proposed section.
Mr. Robbins further has determined that for each year of the first five-year
period the new section is in effect, there will be no effect on large, small
or micro-businesses. The anticipated economic costs to persons who are required
to comply with this section will be no more nor less than the costs to the
individuals before this new section becomes effective and there is no impact
on local employment.
Comments on the proposal may be submitted to Mr. Robbins at P.O. Box 12217
Capital Station, Austin, Texas 78711-1440, (512) 479-5064 (fax), or electronically
to chet.robbins@tfsc.state.tx.us.
The new section is proposed under Texas Occupations Code, §651.152.
The commission interprets §651.152 as authorizing it to adopt rules as
necessary to administer Chapter 651.
No other statutes, articles, or codes are affected by the proposal.
§206.1.Default and Repayment Agreements.
Applicability of Education Code. All individual license renewals are
subject Texas Education Code, §57.491 relating to defaults on guaranteed
student loans and repayment agreements.
(1)
The commission may issue an initial license to a person
who is in default on a guaranteed student loan but shall not renew the license,
unless the applicant furnishes a certification from the Texas Guaranteed Student
Loan Corporation that the licensee has entered into a repayment plan on the
loan or that the licensee is no longer in default on the loan.
(2)
The commission shall not renew the license of a person
who is in default on a guaranteed student loan, unless the renewal is the
first renewal following the Commission's receipt of notice of the licensee's
default or the licensee has furnished the certification described in paragraph
(1) of this section.
(3)
The commission shall not renew the license of a person
who defaults on a repayment agreement on a defaulted loan, unless the Commission
receives a certification that the licensee has entered into another repayment
agreement or that the licensee is no longer in default.
(4)
The commission shall give the licensee an opportunity for
hearing before taking action concerning the non-renewal of a license for default
on a guaranteed student loan or a repayment agreement.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on June 10, 2004.
TRD-200403820
O. C. Robbins
Executive Director
Texas Funeral Service Commission
Earliest possible date of adoption: July 25, 2004
For further information, please call: (512) 936-2474
22 TAC §209.1
The Texas Funeral Service Commission proposes new Title 22,
Texas Administrative Code, Chapter 209, §209.1, concerning Ethical Standards
for Persons Licensed by the Commission. The new section is proposed because
the Commission is authorized to develop ethic standards by §6 of House
Bill 1538, 78th Legislature, Regular Session.
O. C. "Chet" Robbins, Executive Director, has determined that for the first
five-year period the new section is in effect, there will be no fiscal implication
for the state or local governments as a result of enforcing or administering
the proposed section.
Mr. Robbins further has determined that for each year of the first five-year
period the new section is in effect, there will be no effect on large, small
or micro-businesses. The anticipated economic costs to persons who are required
to comply with this section will be no more nor less than the costs to the
individuals before this new section becomes effective and there is no impact
on local employment.
Comments on the proposal may be submitted to Mr. Robbins at P.O. Box 12217,
Capital Station, Austin, Texas 78711-1440, (512) 479-5064 (fax), or electronically
to chet.robbins@tfsc.state.tx.us.
The new section is proposed under Texas Occupations Code, §651.152.
The commission interprets §651.152 as authorizing it to adopt rules as
necessary to administer Chapter 651.
No other statutes, articles, or codes are affected by the proposal.
§209.1.Ethical Standards.
(a)
Persons regulated by the Commission should, as applicable:
(1)
provide consumers with information concerning funerals,
cremations, burials, pricing, merchandise, and services;
(2)
make funeral services available in as wide a range of prices
as will meet the needs of all segments of the community, regardless of gender,
age, ethnicity, religion, sexual orientation, physical or mental disabilities,
veteran status, or any other protected class of individuals.
(3)
extend to consumers the privilege of inspecting and considering
all services available;
(4)
maintain qualified and competent staff, required materials,
adequate facilities, and equipment required for contracted services;
(5)
accurately communicate to consumers the terms of at-need
and pre-need arrangements;
(6)
honestly represent to consumers the need for an quality
of goods and services;
(7)
respect consumers' right of personal choice and decisions
with regard to making arrangements;
(8)
respect consumers' confidentiality;
(9)
honor all agreements made with the consumer for funeral,
cemetery, or cremation services; and
(10)
avoid conflicts involving the regulated person's interest
and the consumer's interest;
(11)
maintain a workplace environment that promotes the health
and safety to employees and consumers;
(12)
show dignity, respect, and courtesy in caring for human
remains and demonstrate compassion for the bereaved by conducting themselves
in a trusting manner.
(b)
A person regulated by the Commission shall not:
(1)
engage in advertising that misleads or deceives the public
or falsely represent that a person is licensed in violation of Texas Occupations
Code, §651.453;
(2)
solicit customers or business in violation of Texas Occupations
Code, §651.454;
(3)
use false or misleading statements regarding funeral merchandise,
or funeral, cemetery, or cremation services in violation of Texas Occupations
Code, §651.455;
(4)
engage in conduct regarding custody of a dead human body
or involving embalming in violation of Texas Occupations Code, §651.456
or §651.457; or
(5)
engage in conduct that violates Texas Occupations Code §651.459;
or
(c)
A facility or establishment regulated by the Commission
shall display these ethical standards in a conspicuous location in an area
that is open to the general public.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on June 10, 2004.
TRD-200403824
O. C. Robbins
Executive Director
Texas Funeral Service Commission
Earliest possible date of adoption: July 25, 2004
For further information, please call: (512) 936-2474
Chapter 277.
PRACTICE AND PROCEDURE
22 TAC §277.2
The Texas Optometry Board proposes amendments to §277.2
to include specific procedures for imposing a default judgment against a party
in a contested case who does not appear at a scheduled informal conference
or administrative hearing. The additional procedures insure that the party
in a contested case receives adequate notice. The proposed amendment clarifies
the agency's ability to issue a default judgment as permitted by the Administrative
Procedures Act and the rules of the State Office of Administrative Hearings,
1 TAC Chapter 155.
Chris Kloeris, Executive Director of the Texas Optometry Board, has determined
that for the first five-year period the amendments are in effect, there will
be no fiscal implications for state and local governments as a result of enforcing
or administering the amendments.
Chris Kloeris also has determined that for each of the first five years
the amendments are in effect, the public benefit anticipated as a result of
enforcing the amendments is that the agency will be able to dispose of actions
where the party in a contested case does not appear while insuring that proper
notice is provided. It has been determined that the amendments do not impose
additional costs to the persons affected by the rule since the amendments
do not impose any additional duties on defaulting parties. No additional costs
are foreseen for small or micro business. Comments regarding possible costs
for those required to comply with the amendments may be submitted to the agency.
Comments on the proposal may be submitted to Chris Kloeris, Executive Director,
Texas Optometry Board, 333 Guadalupe Street, Suite 2-420, Austin, Texas 78701-3942.
The deadline for furnishing comments is 30 days after publication in the
The amendments are proposed under the Texas Optometry Act, Texas
Occupations Code, §§351.151, 351.507, and 351.503, and Texas Government
Code §2001.056 and §2003.050.
The Texas Optometry Board interprets §351.151 as authorizing the adoption
of procedural and substantive rules for the regulation of the optometric profession.
The agency interprets §351.507 as requiring rules regarding informal
conferences and the informal disposition of contested cases, §351.503
to permit a party in a contested case to obtain an administrative hearing, §2001.056
as authorizing default judgments in informal conferences and §2003.050
as requiring the State Office of Administrative Hearings to adopt procedural
rules.
No other sections are affected by the amendments.
§277.2.Disciplinary Proceedings.
(a)
(No change.)
(b)
Informal disposition of contested case. Prior to the imposition
of disciplinary sanctions against a license, the licensee shall be offered
an opportunity to attend an informal conference and show compliance with all
requirements of law, in accordance with the APA.
(1) - (2)
(No change.)
(3)
Notice of the informal conference shall
include:
(A)
a statement of the legal authority, jurisdiction, and alleged
conduct under which the enforcement action is based, with a reference to the
particular section(s) of the statutes and rules involved;
(B)
an offer for the licensee to attend an informal conference
at a specified time and place and show compliance with all requirements of
law, in accordance with Chapter 2001 of the Administrative Procedure Act;
(C)
a statement that the licensee has an opportunity for a
hearing before the State Office of Administrative Hearings on the allegations;
and
(D)
the following statement in capital letters in 12 point
boldface type: FAILURE TO RESPOND TO THE ALLEGATIONS, BY EITHER PERSONAL APPEARANCE
AT THE INFORMAL CONFERENCE OR IN WRITING, WILL RESULT IN THE ALLEGATIONS BEING
ADMITTED AS TRUE AND THE RECOMMENDED SANCTION MADE AT THE INFORMAL CONFERENCE
BEING GRANTED BY DEFAULT. The notice shall be served by delivering a copy
to the licensee in person, by courier receipted delivery, or by certified
or registered mail, return receipt requested, to the licensee's last known
address of record as shown by agency records, not less than 10 days prior
to the date of the conference.
(4)
The licensee shall respond by either personal
appearance at the informal conference or in writing no later than the date
of the informal conference. If the licensee chooses to respond in writing,
the response shall admit or deny each of the allegations. If the licensee
intends to deny only a part of an allegation, the licensee shall specify so
much of it is true and shall deny only the remainder. The response shall also
include any other matter, whether of law or fact, upon which the licensee
intends to rely for his or her defense. If the licensee fails to respond to
the notice specified in this subsection, the matter will be considered as
a default case and the licensee will be deemed to have:
(A)
admitted all the factual allegations in the notice specified
in this subsection;
(B)
waived the opportunity to show compliance with the law;
(C)
waived notice of a hearing;
(D)
waived the opportunity for a hearing on the allegations;
and
(E)
waived objection to the recommended sanctions made at the
informal conference.
(5)
The Investigation-Enforcement Committee
may recommend that the board enter a default order, based upon the allegations
set out in the notice specified in this subsection, adopting the recommended
sanctions made at the informal conference. Upon consideration of the case,
the Board may enter a default order under §2001.056 of the Administrative
Procedure Act or direct that the case be set for a hearing at the State Office
of Administrative Hearings.
(6)
Any default judgment granted under this
section will be entered on the basis of the factual allegations in the notice
and upon proof of proper notice to the licensee's address of record as specified
in paragraph (3) of this subsection.
(7)
A motion for rehearing which requests
that the Board vacate its default order under this section shall be granted
if the motion presents convincing evidence that the failure to respond to
the notice specified in this subsection was not intentional or the result
of conscious indifference, but due to accident or mistake, provided that the
licensee has a meritorious defense to the factual allegations contained in
the notice specified in this subsection and the granting thereof will not
result in delay or injury to the public or the Board.
(8)
[
(9)
[
(c)
(No change.)
(d)
If, after receiving notice of hearing,
a party fails to appear in person or by representative on the day and time
set for hearing, the Administrative Law Judge may proceed in that party's
absence and, as authorized by applicable law, may issue a proposal for decision
or order against the defaulting party in which the factual allegations against
that party in the notice of hearing are deemed admitted as true without the
requirement of submitting additional proof.
(e)
Any default judgment entered under this
section shall be issued only upon adequate proof that proper notice was provided
to the defaulting party, and such notice includes disclosure, in 12 point,
bold-faced type, of the fact that upon failure of the party to appear at the
hearing, the factual allegations in the notice will be deemed admitted as
true, and the relief sought in the notice of hearing may be granted by default.
Proper notice may be established by proof that the Board complied with subsection
(c)(1) and (2) of this section.
(f)
This section does not preclude the agency
from informally disposing of a case by default under the agency's statute
or rules in the event the respondent fails to file a timely written response
or other responsive pleading required by the agency's statute or rules.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on June 14, 2004.
TRD-200403849
Chris Kloeris
Executive Director
Texas Optometry Board
Earliest possible date of adoption: July 25, 2004
For further information, please call: (512) 305-8502
22 TAC §279.2, §279.6
The Texas Optometry Board proposes new §279.6 and amendments
to §279.2 to notify the public and licensees that some sections of §279.2
may be in conflict with recently enacted federal law, 15 U.S.C. Sections 7601
- 7610 (Public Law 108-164), and to refer all parties to new §279.6.
Chris Kloeris, Executive Director of the Texas Optometry Board, has determined
that for the first five-year period the amendments and new section are in
effect, there will be no fiscal implications for state and local governments
as a result of enforcing or administering the amendments and new section.
Mr. Kloeris also has determined that for each of the first five years the
amendments and new section are in effect, the public benefit anticipated as
a result of enforcing the amendments and new section is that patients will
receive contact lens prescriptions, and verification information will be provided,
pursuant to the requirements of federal law. Since the amendments and new
section are informational only, no costs are imposed on the agency's licensees
by the amendments and new section. No additional costs are foreseen for small
or micro business. Comments regarding possible costs for those required to
comply with the amendments and new section may be submitted to the agency.
The federal law preempts those sections of the rule in conflict with the federal
law such that the agency may not enforce any conflicting section.
Comments on the proposal may be submitted to Chris Kloeris, Executive Director,
Texas Optometry Board, 333 Guadalupe Street, Suite 2-420, Austin, Texas 78701-3942.
The deadline for furnishing comments is 30 days after publication in the
The amendments and new section are proposed under the Texas Optometry
Act, Texas Occupations Code, §351.151, and the Contact Lens Prescription
Act, Texas Occupations Code, §§353.101, 353.103, 353.152, 353.156
and 353.204, and federal law, 15 U.S.C. Sections 7601 - 7610.
The Texas Optometry Board interprets §351.151 as authorizing the adoption
of procedural and substantive rules for the regulation of the optometric profession.
The agency interprets §§353.101, 353.103, 353.152, and 353.156 as
setting up a comprehensive scheme to regulate the prescribing and dispensing
of contact lenses, and §353.204 as authorizing the agency to discipline
optometrists and therapeutic optometrists for violations of the Contact Lens
Prescription Act. The agency interprets 15 U.S.C. Sections 7601 - 7610 as
requiring licensees to issue contact lens prescriptions at the completion
of a contact lens exam, and the verification of prescriptions when requested
by a dispenser authorized by the patient to obtain the verification.
No other sections are affected by the amendment and new section.
§279.2.Contact Lens Prescriptions.
(a)
Federal law, 15 U.S.C. Sections 7601 -
7610 (Public Law 108-164), imposes requirements on the prescribing and dispensing
of contact lenses that supersede some of the provisions of the Texas Optometry
Act and Contact Lens Prescription Act, including requirements on the release
of a prescription and requirements to verify a prescription. Section 279.6
of this title (relating to Interpretation of Requirements of Federal Contact
Lens Prescription Law) should therefore be consulted contemporaneously with
this section.
(b)
[
(1)
the name of the examining doctor, and
(2)
the license number of both the examining doctor and the
doctor signing the prescription.
(c)
[
(d)
[
(1)
patient's name;
(2)
date the prescription is issued;
(3)
an expiration date of not less than one year, unless a
shorter period is medically indicated;
(4)
examining optometrist's signature or authorized signature
(5)
name of the lens manufacturer, if required to accurately
dispense the lens;
(6)
lens brand name, including:
(A)
a statement that brand substitution is permitted if the
optometrist intends to authorize a contact lens dispenser to substitute the
brand name, and
(B)
a statement specifying a substitute brand name when the
prescribed brand name is not available to the optical industry as a whole,
unless the prescribing of a proprietary lens brand is medically indicated;
(7)
lens power;
(8)
lens diameter, unless set by the manufacturer;
(9)
base curve, unless set by the manufacturer; and
(10)
number of lenses and recommended replacement interval.
(e)
[
(f)
[
(1)
giving or delivering an original signed copy of the prescription
to the patient or to another person when requested by the patient,
(2)
faxing an original signed prescription to a person authorized
to fill the prescription. When faxing a prescription, the optometrist or therapeutic
optometrist shall write "by fax" or similar wording on the original prescription
prior to faxing;
(3)
transmitting a complete prescription as defined in this
section, to a person authorized to fill the prescription, by e-mail or other
computerized electronic means. When transmitting a prescription by computerized
electronic means, including e-mail, the optometrist or therapeutic optometrist
shall attach a digital signature in a commonly recognized format. The computerized
electronic transmission shall also include the office address and license
number of the optometrist or therapeutic optometrist; or
(4)
under the Contact Lens Prescription Act, if the optometrist
or therapeutic optometrist determines that the patient needs an emergency
refill of the contact lens prescription, the prescription may be telephoned
to a person authorized to fill the prescription.
(g)
[
(h)
[
(i)
[
(j)
[
§279.6.Interpretation of Requirements of Federal Contact Lens Prescription Law.
(a)
A contact lens prescription must comply with the requirements
of the Texas Optometry Act, the Contact Lens Prescription Act, and federal
contact lens prescription laws, 15 U.S.C. Sections 7601 - 7610 (Public Law
108-164).
(b)
Where federal contact lens prescription laws conflict with
state law, the federal law controls. This interpretation, based on the federal
law and rules proposed by the Federal Trade Commission, is intended as a guide
to the requirements of the federal law for writing and releasing contact lens
prescriptions. Enforcement of the federal law is conducted by the Federal
Trade Commission.
(c)
The federal law requires an optometrist or therapeutic
optometrist to release a prescription once the parameters of the prescription
are determined, regardless of whether the release is requested by the patient.
This requirement supersedes the general release requirement of state law and §279.2
of this title (Board Rule 279.2).
(d)
A fully written contact lens prescription must contain
the information required by §279.2 of this title (Board Rule 279.2).
The federal law requires the following additional information:
(1)
the name, postal address, telephone number, and facsimile
telephone number of the prescribing optometrist or therapeutic optometrist;
(2)
the date of examination; and
(3)
if the prescription specifies a trade name of private label
brand, the trade name of equivalent brand name, if applicable.
(e)
When directed by a dispenser designated to act on behalf
of the patient, the federal law requires an optometrist or therapeutic optometrist
to fax an original signed prescription to the dispenser. When faxing a prescription,
the optometrist or therapeutic optometrist shall write "by fax" or similar
wording on the original prescription prior to faxing in accordance with §279.2
of this title (Board Rule 279.2).
(f)
The federal contact lens prescription law requires an optometrist
or therapeutic optometrist to verify a prescription to a dispenser designated
to act on behalf of the patient, by telephone, facsimile or electronic mail.
(g)
Under the federal law, a dispenser designated to act on
behalf of the patient is required to provide the optometrist or therapeutic
optometrist with the following information when seeking a verification of
a prescription:
(1)
patient's full name and address;
(2)
contact lens power, manufacturer, base curve or appropriate
designation, and diameter when appropriate;
(3)
quantity of lenses ordered;
(4)
date of patient request;
(5)
date and time of verification request; and
(6)
name of contact person at dispenser's company, including
facsimile and telephone number.
(h)
If the format of the verification request allows, the optometrist
or therapeutic optometrist, when verifying a prescription, should provide
the contact lens dispenser with all of the information required in subsection
(c) of §279.2 of this title (Board Rule 279.2). An optometrist or therapeutic
optometrist who did not perform the examination, may verify a prescription
according to subsection (a) of §279.2 of this title (Board Rule 279.2),
providing to the dispenser the name and license number of the examining doctor
if the format of the verification request so allows. Each request for a prescription
verification should be recorded in the patient record, including the name
of the dispenser, the date verification is requested, number of lenses requested,
and response of the optometrist or therapeutic optometrist.
(i)
The federal law prohibits a contact lens dispenser seeking
a contact lens prescription verification from filling the prescription if
an optometrist or therapeutic optometrist informs a dispenser that the contact
lens prescription is inaccurate, expired, or otherwise invalid. Federal law
requires the optometrist or therapeutic optometrist to specify the basis for
the inaccuracy or invalidity of the prescription. If the prescription communicated
by the dispenser to the optometrist or therapeutic optometrist is inaccurate,
federal law requires the optometrist or therapeutic optometrist to correct
it. A dispenser may dispense lenses without verification if an optometrist
or therapeutic optometrist fails to communicate with the dispenser within
8 business hours, or a similar time as defined by the Federal Trade Commission.
(j)
An optometrist or therapeutic optometrist dispensing contact
lenses shall record on the prescription the number of lenses dispensed and
return the prescription to the person. If all the contact lenses authorized
by the prescription are dispensed by an optometrist or therapeutic optometrist,
the following procedure complies with state law and should not be in conflict
with federal law: the optometrist or therapeutic optometrist writes on the
prescription "All Lenses Dispensed," makes a copy of the prescription to retain
in the licensee's records, and returns the original to the person presenting
the prescription.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on June 14, 2004.
TRD-200403848
Chris Kloeris
Executive Director
Texas Optometry Board
Earliest possible date of adoption: July 25, 2004
For further information, please call: (512) 305-8502
Chapter 283.
LICENSING REQUIREMENTS FOR PHARMACISTS
22 TAC §283.9
The Texas State Board of Pharmacy proposes amendments to §283.9,
concerning Fee Requirements for Licensure by Examination, Score Transfer,
and Reciprocity. The proposed amendments, if adopted, will increase the initial
application fees for licensure by exam or score transfer, and for the initial
application fee for licensure by reciprocity to include a surcharge required
for funding Texas Online. The proposed amendments, if adopted, will also
implement a recommendation by the Sunset Advisory Commission making all fees
non-refundable.
Gay Dodson, R.Ph., Executive Director/Secretary, has determined that, for
the first five-year period the rule is in effect, there will be fiscal implications
for state government as a result of enforcing or administering the rule as
follows:
Figure: 22 TAC Chapter 283--Preamble
Economic cost to persons who are required to comply with these rules will
be an increase of an additional $2.00 fee for an initial application for
licensure by exam or score transfer, and an additional $5.00 fee for an initial
application for licensure by reciprocity. There are no anticipated fiscal
implications for local government.
Ms. Dodson has determined that, for each year of the first five-year period
the rules will be in effect, the public benefit anticipated as a result of
enforcing the rules will be to allow a pharmacist licensure applicant to
submit their initial license application over the Internet. Eligible applicants
will be able to apply for licensure online anytime, seven days a week, with
payment submitted via credit card or electronic check. The development of
this online application is scheduled to begin in September 2004 with implementation
by December 2004.
The effect on large, small or micro-businesses (pharmacies) will be the
same as the economic cost to an individual, if the pharmacy chooses to pay
the fee for the individual.
Comments on the proposal may be submitted to Allison Benz, R.Ph., M.S.,
Director of Professional Services, Texas State Board of Pharmacy, 333 Guadalupe
Street, Suite 3-600, Box 21, Austin, Texas, 78701, FAX 512/305-8082. Comments
must be received by 5 pm, July 26, 2004.
The amendments are proposed under sections 551.002, 554.051,
558.051, and 558.101 of the Texas Pharmacy Act (Chapters 551-566 and 568-569
Texas Occupations Code). The Board interprets section 551.002 as authorizing
the agency to protect the public through the effective control and regulation
of the practice of pharmacy. The Board interprets section 554.051 as authorizing
the agency to adopt rules for the proper administration and enforcement of
the Act. The Board interprets section 558.051, and 558.101 as authorizing
the agency to set application and licensure fees.
The statutes affected by these rules: Chapters 551-566 and 568-569, Texas
Occupations Code.
§283.9.Fee Requirements for Licensure by Examination, Score Transfer and Reciprocity.
(a)
The fees for licensure by examination, score transfer,
and reciprocity shall include one exam administration
. These fees are
not refundable. The fees
[
(1)
Examination Fee. The fee to submit an application for licensure
by examination will include:
(A)
An examination processing fee of
$52
[
(B)
NAPLEX administrative and examination fees as determined
by NABP, which are to be paid to NABP in accordance with NABP policy.
(C)
MPJE administrative and examination fees as determined
by NABP, which are to be paid to NABP in accordance with NABP policy.
(2)
Reciprocity Fee. The fee to submit an application for licensure
by reciprocity will include.
(A)
A reciprocity fee of
$255
[
(B)
MPJE administrative and examination fees as determined
by NABP, which are to be paid to NABP in accordance with NABP policy.
(C)
A license verification fee as determined by NABP, which
is to be paid to NABP in accordance with NABP policy.
(3)
Score Transfer Fee. The fees to transfer a score to Texas,
using the NAPLEX Score Transfer system will include:
(A)
An examination processing fee of
$52
[
(B)
MPJE administrative and examination fees as determined
by NABP, which are to be paid to NABP in accordance with NABP policy.
(C)
A score transfer fee as determined by NABP, which is to
be paid to NABP in accordance with NABP policy.
(b)
(No change.)
(c)
Rescheduling or canceling an examination appointment.
[
[
[
(d) - (f)
(No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on June 14, 2004.
TRD-200403854
Gay Dodson, R.Ph.
Executive Director/Secretary
Texas State Board of Pharmacy
Earliest possible date of adoption: July 25, 2004
For further information, please call: (512) 305-8028
Subchapter B. COMMUNITY PHARMACY (CLASS A)
22 TAC §291.34
The Texas State Board of Pharmacy proposes amendments to §291.34,
concerning Records. The amendments, if adopted, will ensure that prescriptions
for controlled substances carried out by advance practice nurses and physician
assistants contain the DEA number of the supervising practitioner.
Gay Dodson, R.Ph., Executive Director/Secretary, has determined that, for
the first five-year period the rule is in effect, there will be no fiscal
implications for state or local government as a result of enforcing or administering
the rule.
Ms. Dodson has determined that, for each year of the first five-year period
the rule will be in effect, the public benefit anticipated as a result of
enforcing the rule will be to ensure that prescriptions for controlled substances
carried out by advance practice nurses and physician assistants contain the
DEA number of the supervising practitioner, ensuring that the prescriptions
are issued under the proper authority. There is no fiscal impact for small
or large businesses or to other entities who are required to comply with
this section.
Comments on the proposal may be submitted to Allison Benz, R.Ph., M.S.,
Director of Professional Services, Texas State Board of Pharmacy, 333 Guadalupe
Street, Suite 3-600, Box 21, Austin, Texas, 78701, FAX 512/305-8082. Comments
must be received by 5 pm, July 26, 2004.
The amendments are proposed under sections 551.002 and 554.051
of the Texas Pharmacy Act (Chapters 551-566, and 568-569, Texas Occupations
Code). The Board interprets section 551.002 as authorizing the agency to protect
the public through the effective control and regulation of the practice of
pharmacy. The Board interprets section 554.051 as authorizing the agency to
adopt rules for the proper administration and enforcement of the Act.
The statutes affected by this rule: Chapters 551-566 and 568-569, Texas
Occupations Code.
§291.34.Records.
(a)
(No change.)
(b)
Prescriptions.
(1) - (5)
(No change.)
(6)
Prescription drug order information.
(A) - (B)
(No change.)
(C)
All original written prescriptions [
(i)
name and address of the patient;
(ii)
name, address, [
(iii)
name, identification number, original signature and if
the prescription is for a controlled substance, the DEA number of the advanced
practice nurse or physician assistant;
(iv)
address and telephone number of the clinic at which the
prescription drug order was carried out or signed;
(v)
name, strength, and quantity of the dangerous drug;
(vi)
directions for use;
(vii)
indications for use, if appropriate;
(viii)
date of issuance; and
(ix)
number of refills authorized.
(D)
(No change.)
(7)
(No change.)
(c) - (k)
(No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on June 14, 2004.
TRD-200403855
Gay Dodson, R.Ph.
Executive Director/Secretary
Texas State Board of Pharmacy
Earliest possible date of adoption: July 25, 2004
For further information, please call: (512) 305-8028
22 TAC §297.7
The Texas State Board of Pharmacy proposes amendments to §297.7
concerning Exemption from Pharmacy Technician Certification Requirements.
The proposed amendments, if adopted, will clarify the status of pharmacy technicians
exempted from certification.
Gay Dodson, R.Ph., Executive Director/Secretary, has determined that, for
the first five-year period the rule is in effect, there will be no fiscal
implications for state or local government as a result of enforcing or administering
the rule.
Ms. Dodson has determined that, for each year of the first five-year period
the rule will be in effect, the public benefit anticipated as a result of
enforcing the rule will be to clarify the status of long-term exempt pharmacy
technicians and clarify the status of rural county exempt pharmacy technicians
whose exemption is cancelled. There is no fiscal impact for small or large
businesses or to other entities who are required to comply with this section.
Comments on the proposal may be submitted to Allison Benz, R.Ph., M.S.,
Director of Professional Services, Texas State Board of Pharmacy, 333 Guadalupe
Street, Suite 3-600, Box 21, Austin, Texas, 78701, FAX 512/305-8082. Comments
must be received by 5 pm, July 26, 2004.
The amendments are proposed under Sections 551.002, 554.002(6),
554.051, and 568.002, Occupations Code. The Board interprets section 551.002
as authorizing the agency to protect the public through the effective control
and regulation of the practice of pharmacy. The Board interprets section
554.002(6) as authorizing the agency to regulate the training, qualifications,
and employment of a pharmacy technician. The Board interprets section 554.051
as authorizing the agency to adopt rules for the proper administration and
enforcement of the Act. The Board interprets Section 568.002 as authorizing
the agency to establish a system for the registration of pharmacy technicians
including the issuance and renewal of registrations and to exempt pharmacy
technicians from the certification requirement under conditions.
The statutes affected by this rule: Chapters 551-566 and 568-569, Texas
Occupations Code.
§297.7.Exemption from Pharmacy Technician Certification Requirements.
(a)
Purpose. The board encourages all pharmacy technicians
to become certified by taking and passing the National Pharmacy Technician
Certification Exam or other examination approved by the board. However, the
board will consider petitions for exemption on a case by case basis. This
section outlines procedures for pharmacy technicians to petition the board
for an exemption to the certification requirements established by §568.002
of the Act (relating to Pharmacy Technician Registration Required).
(b)
Long-term
exempt pharmacy technicians.
[
(c)
Rural
county exempt pharmacy technicians.
[
(1)
Eligibility. A pharmacy technician may petition the board
for an exemption from the certification requirements established by §568.002
of the Act (relating to Pharmacy Technician Registration Required) if the
technician works in a county with a population of 50,000 or less.
(2)
Petition process.
(A)
A pharmacy technician shall petition the board for the
exemption. The petition shall contain the following:
(i)
name of the pharmacy technician;
(ii)
name, address, and license number of the pharmacy where
the pharmacy technician is employed;
(iii)
name of the county in which the pharmacy is located and
the most recent official population estimate for the county from the Texas
State Data Center;
(iv)
a notarized statement signed by the pharmacy technician
stating:
(I)
the reason(s) the pharmacy technician is asking for the
exemption, including reason(s) the pharmacy technician has not taken and passed
the National Pharmacy Technician Certification Exam or other examination approved
by the board; and
(II)
that the information provided in the petition is true
and correct; and
(v)
a notarized statement signed by the pharmacist-in-charge
of the pharmacy the pharmacy technician is currently working, stating that
the:
(I)
pharmacist-in-charge supports the pharmacy technician's
petition for exemption;
(II)
pharmacy technician has completed the pharmacy technician
training program at the pharmacy; and
(III)
pharmacist-in-charge has personally worked with and observed
that the pharmacy technician is competent to perform the duties of a pharmacy
technician.
(B)
Each petition shall be considered on an individual basis.
In determining whether to grant the exemption, the board shall consider the
information contained in the petition and additional information including
the following:
(i)
the accuracy and completeness of the petition;
(ii)
reason(s) the pharmacy technician is asking for the exemption;
(iii)
the population of the county;
(iv)
the number of pharmacies located in the county and adjacent
counties and the number of pharmacy technicians working in these pharmacies;
(v)
unemployment rate in the county and adjacent counties;
and
(vi)
the following information concerning the pharmacy where
the pharmacy technician is currently working:
(I)
the degree of compliance on previous compliance inspections;
and
(II)
history of disciplinary action by the board or other regulatory
agencies against the licenses held by the pharmacy or pharmacists working
at the pharmacy.
(C)
After review of the petition, the pharmacy technician and
the pharmacist-in-charge of the pharmacy where the technician is working shall
be notified in writing of approval or denial of the petition.
(i)
If the petition is approved, the pharmacy technician shall
be sent an exemption certificate, which shall be displayed at the pharmacy
where the pharmacy technician is working.
(ii)
In lieu of the exemption, the board may grant the pharmacy
technician up to an additional 12 months to take and pass the National Pharmacy
Technician Certification Exam or other examination approved by the board.
During this additional time, the pharmacy technician shall be designated a
pharmacy technician trainee.
(3)
Limitations.
(A)
The exemption granted under this section may only be used
at the pharmacy noted in the petition and may not be transferred to another
pharmacy. If the pharmacy technician ceases employment at the pharmacy or
changes employment, the exemption is canceled.
(B)
If the population of the county exceeds 50,000, the board
shall cancel the exemption. The pharmacy technician and the pharmacist-in-charge
of the pharmacy shall be notified when an exemption is canceled.
(C)
If the exemption granted under subparagraphs
(A) or (B) of this paragraph is cancelled, the pharmacy technician's registration
is void and the registration certificate must be surrendered to the Board.
This agency hereby certifies that the proposal
has been reviewed by legal counsel and found to be within the agency's legal
authority to adopt.
Filed with the Office of
the Secretary of State on June 14, 2004.
TRD-200403856
Gay Dodson, R.Ph.
Executive Director/Secretary
Texas State Board of Pharmacy
Earliest possible date of adoption: July 25, 2004
For further information, please call: (512) 305-8028
Chapter 535.
GENERAL PROVISIONS
Subchapter A. GENERAL PROVISIONS RELATING TO THE REQUIREMENTS OF LICENSURE
22 TAC §535.2
The Texas Real Estate Commission (TREC) proposes an amendment
to §535.2, concerning Broker's Responsibility.
The amendment adds new subsections (d)-(e) to §535.2 to establish
a written disclosure for a real estate broker to provide to a client, typically
the seller in a real estate transaction, concerning the extent to which another
broker, who typically represents the buyer in the transaction, may discuss
the terms of the transaction or answer questions of the seller. The broker
must provide the written notice to the client when the client has instructed
the agent not to negotiate a transaction on behalf of the client.
This clarification is proposed based on concerns raised by various real
estate industry organizations regarding limited service listing agreements.
A limited service listing agreement is an agreement by which a broker provides
fewer services than those services provided for in a traditional real estate
listing agreement. A limited service agreement may provide for a menu of services
or reduced fees for certain specified services rather than a full commission
for the complete range of brokerage services generally provided in a traditional
real estate agency relationship.
Under certain business models, a real estate broker may provide no service
to the seller except to place the listing in a Multiple Listing Service. Typically,
the listing broker instructs the cooperating broker to contact the seller
directly for all purposes (showings, presentations of offers, and negotiations).
This practice raises several concerns for brokers who represent buyers
interested in properties listed under limited service agreements. In some
cases, the seller does not understand the complexities of the transaction
and may wish to rely upon the cooperating broker for assistance and advice.
The seller may be reluctant to approach the limited service broker for assistance
at the risk of incurring significant additional fees; in some cases the limited
service broker will not provide the additional service. When the other broker
represents the buyer as the buyer's agent, the broker is prohibited from negotiating
with a represented seller under §1101.652(b)(22) of the Occupations Code.
Cooperating brokers also understand, however, that failing to provide the
requested services to the seller may jeopardize the transaction or increase
risks associated with the transaction.
The proposed disclosure would explain fully to a principal that the law
precludes the other broker from providing any services to the principal and
that the principal should contact his or her own broker if the principal needs
help with the transaction. If a principal instructs a broker not to negotiate
a transaction on behalf of principal, the broker must provide the notice to
the principal at that time.
Loretta R. DeHay, General Counsel, has determined that for the first five-year
period the section is in effect there will be no fiscal implications for the
state or for units of local government as a result of enforcing or administering
the section. There is no anticipated impact on small businesses, micro businesses
or local or state employment as a result of implementing the section.
Ms. DeHay also has determined that for each year of the first five years
the section as proposed is in effect the public benefit anticipated as a result
of enforcing the section will be clarification to consumers of the fee for
service business model in Texas. There is no anticipated economic cost to
persons who are required to comply with the proposed section.
Comments on the proposal may be submitted to Loretta R. DeHay, General
Counsel, Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188.
The amendments are proposed under Texas Occupations Code, §1101.151,
which authorizes the Texas Real Estate Commission to make and enforce all
rules and regulations necessary for the performance of its duties and to establish
standards of conduct and ethics for its licensees in keeping with the purpose
and intent of the Act to insure compliance with the provisions of the Act.
The statute affected by this proposal is Texas Occupations Code, Chapter
1101. No other statute, code or article is affected by the proposed amendments.
§535.2.Broker's Responsibility.
(a) - (c)
(No change.)
(d)
If a broker's principal instructs
the broker to not negotiate an offer or counter-offer and instructs the broker
to inform other brokers to submit offers and counter-offers directly to the
client, the broker must provide the following notice to the broker's principal:
"NOTICE CONCERNING NEGOTIATIONS You have instructed your broker to not negotiate
offers and counter-offers for you and to inform other brokers to submit offers
and counter-offers directly to you. Please take note of the following. The
other broker will represent the other party in the transaction and will not
represent you The other broker will advise his or her client of relevant
information related to the negotiations including but not limited to relevant
market data, contractual duties, and negotiating strategies. The other broker
will inform his or her client of any information the other broker received
from you. You may be placed at a disadvantage if the other party retains
the assistance of a broker or an attorney during negotiations and you do not.
You should direct any questions about any offer, counter-offer, or any contractual
obligation to your broker and not to the other broker. If you need assistance
in preparing or responding to any offer, counter-offer, or notice or if you
need assistance at any time through closing you should seek such assistance
from your broker or your attorney and not the other broker. You should not
rely on the other broker to coordinate the transaction, including but not
limited to arranging for the completion of your obligations in the transaction
and your performance under a contract. Your broker is obligated under law
to provide assistance to you during negotiations. The amount you pay your
broker is negotiable between you and your broker. The amount you pay your
broker may depend on the type and amount of services your broker provides."
(e)
A broker must provide the notice
under subsection (d) of this section to the broker's principal at the time
the broker receives the principal's instruction to not negotiate. The notice
under subsection (d) of this section must be:
(1)
in a separate, self-contained document;
(2)
printed with at least 14-point type;
(3)
signed and dated by the broker;
(4)
contain a space or line for the broker's principal to sign
as an acknowledgment of receipt.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on June 9, 2004.
TRD-200403786
Loretta DeHay
General Counsel
Texas Real Estate Commission
Earliest possible date of adoption: July 25, 2004
For further information, please call: (512) 465-3900
22 TAC §535.51
The Texas Real Estate Commission (TREC) proposes amendments
to §535.51, concerning general requirements for licensure. The amendments
propose to adopt by reference changes to a real estate broker corporation
application form to change the fees referenced in the form. The amendments
to the fee provisions in the form is proposed in conjunction with Government
Code Chapter 2054, Subchapter I, §2054.252, which requires TREC to participate
in an electronic system using the Internet for licensing applications and
renewals. Section 2054.252 requires TREC to pay a subscription fee to the
TexasOnline Authority for participation and to increase application and renewal
fees to cover the cost of the subscription fees charged by the TexasOnline
Authority. The proposed revisions include an additional $3 fee on corporation
broker original applications that will be effective September 1, 2004.
Loretta R. DeHay, general counsel, has determined that for the first five-year
period the section is in effect there will be no fiscal implications for the
state as a result of enforcing or administering the section. There are no
anticipated fiscal implications for units of local government. There is no
anticipated impact on small businesses, micro businesses or local or state
employment as a result of implementing the section.
Ms. DeHay also has determined that for each year of the first five years
the section as proposed is in effect the public benefit anticipated as a result
of enforcing the section will be a streamlined application filing process.
There is no anticipated economic cost to persons who are required to comply
with the proposed section.
Comments on the proposal may be submitted to Loretta R. DeHay, General
Counsel, Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188.
The amendments are proposed under Texas Occupations Code, §1101.151,
which authorizes the Texas Real Estate Commission to make and enforce all
rules and regulations necessary for the performance of its duties and to establish
standards of conduct and ethics for its licensees in keeping with the purpose
and intent of the Act to insure compliance with the provisions of the Act
and Government Code §2054.252(g) which requires TREC to increase occupational
license issuance or renewal fees by an amount sufficient to cover the cost
of the subscription fee imposed on TREC under subsection (e) of §2054.252.
The statutes affected by this proposal is Texas Occupations Code, Chapter
1101, and Texas Government Code, Chapter 2054. No other statute, code or article
is affected by the proposed amendments.
§535.51.General Requirements.
(a) - (d)
(No change.)
(e)
The commission adopts by reference the following forms
approved by the commission which are published by and available from the Texas
Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188:
(1)
(No change.)
(2)
Effective September 1, 2004,
Application for
a Real Estate Broker License by a Corporation, TREC Form BLC-
5
[
(3) - (10)
(No change.)
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on June 9, 2004.
TRD-200403787
Loretta DeHay
General Counsel
Texas Real Estate Commission
Earliest possible date of adoption: July 25, 2004
For further information, please call: (512) 465-3900
22 TAC §§535.71 - 535.73
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Real Estate Commission or in the Texas Register office, Room
245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Texas Real Estate Commission (TREC) proposes
the repeal of §535.71, concerning mandatory continuing education: approval
of providers, courses and instructors, §535.72, concerning mandatory
continuing education: presentation of courses, advertising and records, and §535.73,
concerning compliance and enforcement. The subjects addressed in these sections
will be covered in new sections TREC is proposing to adopt as part of the
Education Task Force recommendations regarding mandatory continuing education.
Loretta R. DeHay, general counsel, has determined that for the first five-year
period the repeal is in effect there will be no fiscal implications for the
state as a result of enforcing or administering the sections. There are no
anticipated fiscal implications for units of local government. There is no
anticipated impact on small businesses, micro businesses or local or state
employment as a result of implementing the repeal.
Ms. DeHay also has determined that for each year of the first five years
the sections as proposed are in effect the public benefit anticipated as a
result of enforcing the sections will be increased knowledge of current real
estate related case law and statutory provisions due to the proposed requirements
to attend live presentations of commission created legal mandatory continuing
education courses. There is no anticipated economic cost to persons who are
required to comply with the proposed sections.
Comments on the proposal may be submitted to Loretta R. DeHay, General
Counsel, Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188.
The repeals are proposed under Texas Occupations Code, §1101.151,
which authorizes the Texas Real Estate Commission to make and enforce all
rules and regulations necessary for the performance of its duties and to establish
standards of conduct and ethics for its licensees in keeping with the purpose
and intent of the Act to insure compliance with the provisions of the Act.
The statute affected by this proposal is Texas Occupations Code, Chapter
1101. No other statute, code or article is affected by the proposed repeals.
§535.71.Mandatory Continuing Education: Approval of Providers, Courses and Instructors.
§535.72.Mandatory Continuing Education: Presentation of Courses, Advertising and Records.
§535.73.Compliance and Enforcement.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on June 9, 2004.
TRD-200403788
Loretta DeHay
General Counsel
Texas Real Estate Commission
Earliest possible date of adoption: July 25, 2004
For further information, please call: (512) 465-3900
22 TAC §§535.71 - 535.73
The Texas Real Estate Commission (TREC) proposes new §535.71,
concerning mandatory continuing education: approval of providers, courses
and instructors, §535.72, concerning mandatory continuing education:
presentation of courses, advertising and records, and §535.73, concerning
compliance and enforcement.
The proposed rules require all licensees to take a three hour legal update
course and a three hour legal ethics course created for and approved by TREC
to satisfy the 6 legal hours of mandatory continuing education required by
Occupations Code §1101.455 (the Act). Instructors who teach the legal
courses must be certified to teach the courses by attending an instructor
training course to be offered by the Real Estate Center at Texas A&M University
(the Center); instructors must be pre-approved by the Commission prior to
attending the instructor training course and obtaining certification to teach
the required courses. The required legal update and ethics courses will be
replaced at the end of every odd numbered year (3 years for the first set
of courses, every 2 years after). The required courses may be modified by
certified instructors to supplement the courses with additional material,
to create distance learning legal courses or to combine the legal courses
with elective courses. Elective courses to be used as credit for the remaining
9 hours required by §1101.455 of the Act must be presentations of relevant
issues that impact the practice of real estate or which increase or support
the development of skill and competence; providers will be required to register
all courses with the Commission. Core and mandatory continuing legal education
courses may be accepted for satisfying MCE elective credit only. Correspondence
and alternate delivery method courses may be registered to satisfy elective
and required legal credit subject to certain conditions. A provider may grant
partial credit to a student who attends less than the complete course registered
with the commission only if the segments of the course for which partial credit
may be granted are not less than one hour in length and the student attends
the full class hour to get credit for attendance for that hour. Thus if a
student is away or late for any portion of a 50 minute class hour the student
may not receive credit for that hour except as provided in circumstances described
in §535.72(c). The student will receive credit for any other full hours
of that course that the student attends. Instructor applicants must satisfy
the commission as to the applicant's honesty, trustworthiness and integrity;
providers will be responsible for ensuring that instructors are competent
to teach a particular subject. The proposed rules also propose to adopt by
reference 13 MCE new or revised application forms that are consistent with
the proposed rules; the forms have also been changed to reference the cites
to Chapter 1101 Occupations Code and have been reformatted for style and consistency
with other TREC forms.
The effective date of the new rules if adopted will be January 1, 2005.
Distance learning courses may be offered for required legal course credit
on or after July 1, 2005. Licensees on active status will be required to take
the required legal update and legal ethics courses for their next and all
subsequent renewals of their license after January 1, 2005. Thus a licensee
may, but is not required to attend the required legal courses for his or her
first renewal after the effective date, but the licensee is required to take
the courses for the next and all subsequent renewals. For licenses granted
after the effective date, the licensee must attend the required courses to
renew a license on active status.
Loretta R. DeHay, general counsel, has determined that for the first five-year
period the proposed revisions to the sections are in effect there will be
no fiscal implications for the state as a result of enforcing or administering
the sections. There are no anticipated fiscal implications for units of local
government. There will be no impact on small businesses, micro businesses
or local or state employment as a result of implementing the sections.
Ms. DeHay also has determined that for each year of the first five years
the sections as proposed are in effect the public benefit anticipated as a
result of enforcing the sections will be increased knowledge of current real
estate related case law and statutory provisions due to the proposed requirements
to attend commission created legal mandatory continuing education courses.
There is no anticipated economic cost to persons who are required to comply
with the proposed sections.
Comments on the proposal may be submitted to Loretta R. DeHay, General
Counsel, Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188.
The new sections are proposed under Texas Occupations Code, §1101.151,
which authorizes the Texas Real Estate Commission to make and enforce all
rules and regulations necessary for the performance of its duties and to establish
standards of conduct and ethics for its licensees in keeping with the purpose
and intent of the Act to insure compliance with the provisions of the Act.
The statute affected by this proposal is Texas Occupations Code, Chapter
1101. No other statute, code or article is affected by the proposed new sections.
§535.71.Mandatory Continuing Education: Approval of Providers, Courses and Instructors.
(a)
The following words and terms, when used in these sections,
shall have the following meanings, unless the context clearly indicates otherwise.
(1)
Act--The Real Estate License Act, Texas Occupations Code,
Chapter 1101.
(2)
Applicant--A person seeking approval to be a provider or
instructor of a course for which mandatory continuing education credit is
given.
(3)
Hour--Fifty minutes of actual session time.
(4)
Certified legal course instructor - an instructor approved
by the Texas Real Estate Commission and certified to teach the required legal
update course or the required ethics course.
(5)
Commission--The Texas Real Estate Commission.
(6)
Day--A calendar day.
(7)
Distance learning course--A correspondence course or alternative
delivery method course.
(8)
Elective credits--The nine hours of non-legal mandatory
continuing education required by §1101.455 of the Act.
(9)
Instructor--A person approved by the Texas Real Estate
Commission to teach mandatory continuing education courses.
(10)
MCE--Mandatory Continuing Education.
(11)
Person--An individual, partnership, or a corporation,
foreign or domestic.
(12)
Proctor--A person who monitors a final examination for
a course offered by a provider under the guidelines contained in this section.
A proctor may be a course instructor, the provider, an employee of a college
or university testing center, a librarian, or other person approved by the
commission.
(13)
Provider--A person approved by the Texas Real Estate Commission
to offer courses for which mandatory continuing education credit is given.
(14)
Required legal ethics course--A required course created
for and approved by the Texas Real Estate Commission to satisfy three of the
six legal hours of mandatory continuing education required by §1101.455
of the Act.
(15)
Required legal update course--A required course created
for and approved by the Texas Real Estate Commission to satisfy three of the
six legal hours of mandatory continuing education required by §1101.455
of the Act.
(16)
Required legal course or legal credits--The required legal
update or legal ethics courses or credits earned for attending such courses.
(17)
Student--An individual taking an MCE course for credit.
(b)
Mandatory Continuing Education Requirements. On or after
January 1, 2005 and except as authorized by §535.92 of this chapter,
for the next and all subsequent renewals of a license on active status that
is not subject to the annual education requirements of §1101.454 of the
Act, the license holder must attend during the term of the current license,
at least two Commission-developed legal courses consisting of a three-hour
legal update course and a three-hour legal ethics course to comply with the
six legal hours of mandatory continuing education required by §1101.455
of the Act. The remaining nine hours required by §1101.455 of the Act
may consist of elective credit courses registered with the commission under
this section.
(c)
Application. A person who wishes to offer courses accepted
by the commission for MCE credit shall apply to the commission for approval
to be an MCE provider and shall register each MCE course using application
forms prepared by the commission. The commission may refuse to accept any
application which is not complete or which is not accompanied by the appropriate
filing fee. Each prospective provider shall submit a provider application
and at least one principal information form.
(d)
Forms. The commission adopts by reference the following
forms published and available from the commission, P.O. Box 12188, Austin,
Texas, 78711-2188:
(1)
MCE Form 1A-2, MCE Provider Application;
(2)
MCE Form 1B-2, MCE Provider Application Supplement;
(3)
MCE Form 2-3, MCE Principal Information Form;
(4)
MCE Form 3A-2, MCE Course Application;
(5)
MCE Form 3B-3, MCD Course Application Supplement;
(6)
MCE Form 8-4, MCE Course Completion Roster;
(7)
MCE Form 9-7, Alternative Instructional Methods Reporting
Form;
(8)
MCE Form 10-2, MCE Credit Request For An Out of State Course;
(9)
MCE Form 11-4, MCE Instructor Credit Request;
(10)
MCE Form 12-2, Individual MCE Credit Request for State
Bar Course;
(11)
MCE Form 14-0, Individual MCE Partial Credit Request Form;
(12)
MCE Form 15-0, Individual MCE Elective Credit Request
for Professional Designation Course; and
(13)
MCE Form 16-0, Instructor Application Form.
(e)
Provider application. To be approved as an MCE provider,
a person must satisfy the commission as to the person's ability to administer
with honesty, trustworthiness and integrity a course of continuing education
in MCE subjects registered with the commission. If the person proposes to
employ independent contractors to conduct or to administer the courses, any
independent contractor named in the application must meet this standard as
if the independent contractor were the applicant; however, the applicant is
responsible for responding to communications from the commission relating
to the application.
(f)
Additional information related to application. An applicant
may be requested to provide additional information, and the commission may
terminate an application without further notice if the applicant fails to
provide the additional information within 60 days of the mailing of a request
by the commission.
(g)
Fees. Fees shall be established by the commission in accordance
with the provisions of the Act, §1101.152, at such times as the commission
deems appropriate. Fees are not refundable and must be submitted in the form
of a check or money order, or, in the case of state agencies, colleges or
universities, in a form of payment acceptable to the commission.
(h)
Approval of applicants. The commission may authorize the
manager or director of the education division of the commission, or a designate,
to determine whether applications for MCE providers or instructors should
be approved or certified. The commission may disapprove an application for
failure to satisfy the commission as to the applicant's honesty, trustworthiness
or integrity, or for any reason which would be a ground to suspend or revoke
a real estate license. If an application is disapproved, the commission shall
provide written notice to the applicant detailing the basis of the decision.
(i)
Appeal. An applicant may appeal a disapproval by filing
with the commission a written request for a hearing within 10 days after the
receipt of the notice of disapproval. Following the hearing, the commission
may sustain or withdraw the disapproval or establish conditions for the approval
of a provider, course or instructor. Proceedings involving applications shall
be conducted in accordance with the Administrative Procedure Act, Texas Government
Code, Chapter 2001. Venue for any hearing conducted under this section shall
be in Travis County.
(j)
Power of attorney. If a provider does not maintain a fixed
office in this state for the duration of the provider's approval to offer
courses, the provider shall designate a resident of this state as attorney-in-fact
to accept service of process and act as custodian of any records in Texas
which the provider is required to maintain by these sections. A power-of-attorney
designating the resident must be filed with the commission in a form acceptable
to the commission.
(k)
Subsequent application for provider approval or course
registration. Unless withdrawn earlier for cause as provided by these sections,
a provider's authority to offer courses for which MCE credit is given expires
two years from the date the provider is approved by the commission. Authority
to offer any MCE courses ends with the expiration of the provider's approval,
and the provider must pay current fees and reapply for approval as a provider
in order to offer MCE courses again. An elective credit course registered
with the commission may be offered by the provider for a period of two years
after the course is registered or until the provider's authority to act as
a provider finally expires or is withdrawn for cause, whichever first occurs.
If a course was originally registered by another provider, the registration
period is measured from the date of registration for the original provider.
A provider may apply for approval to be a provider for another two years no
sooner than six months prior to the expiration of existing provider approval.
(l)
Approval of instructor. To be approved as an instructor
of any MCE course, an applicant must satisfy the commission as to the applicant's
honesty, trustworthiness and integrity. Subsections (f)-(i) of this section
apply to an applicant for approval of an instructor.
(m)
Term of instructor approval. If the commission determines
that the applicant meets the standards for instructor approval, the commission
shall approve the application and provide a written notice of the approval
to the applicant. Unless surrendered or revoked for cause, the approval will
be valid for a period of five years.
(n)
Subsequent application for instructor approval. No more
than six months prior to the expiration of the current approval, an instructor
may apply for approval for another five year period.
(o)
Required legal update and ethics courses. The commission
shall approve bi-annually a legal update course and a legal ethics course
which shall be conducted through providers by instructors certified by the
commission under this Subchapter. The subject matter and course materials
for the courses shall be created for and approved by the commission. New courses
must be offered during the two-year period ending on December 31 of each odd-numbered
year. The new courses will automatically replace the previous courses and
instructors must become recertified to teach the replacement course(s) by
attending a new instructor training course prior to a provider offering the
replacement course(s). Providers must acquire the Commission-developed course
materials and utilize such materials to conduct the legal courses. The courses
must be conducted as prescribed by the rules in this Subchapter and the course
materials developed for the commission.
(p)
Modification of required legal courses. Providers and instructors
may modify a required legal course only to provide additional information
on the same or similar topics covered in the course or to create distance
learning courses that are substantially similar to the live courses developed
for the commission. To the extent that a required legal course is modified
or integrated into a longer course for which additional elective credit is
requested, the commission shall grant elective and legal credit for the combined
course.
(q)
Instructor certification. Only instructors certified by
the commission may teach required legal courses or develop distance learning
required legal courses. An instructor must obtain prior commission approval
under subsection (m) of this section prior to attending an instructor training
course. An instructor may obtain certification to teach either one or both
required legal courses. A certified legal course instructor may teach the
required legal courses for any approved provider after the instructor has
attended an instructor training course. A certified legal course instructor
may not independently conduct a required legal course unless the instructor
has also obtained approval as a provider. An instructor must obtain written
certification from the Commission prior to teaching the required legal courses
and prior to representing to any provider or other party that he or she is
certified or may be certified as a legal course instructor. An instructor's
certification to teach a required legal course expires on December 31 of every
odd-numbered year. An instructor may obtain recertification by attending a
new instructor training course as described in subsection (o) of this section.
(r)
Elective credit courses. To be approved to offer a course
for MCE elective credit, the provider must demonstrate that the course subject
matter is appropriate for a continuing education course for real estate licensees
and that the information provided in the course will be current and accurate.
MCE elective credit courses must be presentations of relevant issues that
impact the practice of real estate in the current market or topics which increase
or support the licensee's development of skill and competence.
(s)
Elective course application. A provider applicant must
submit an MCE Form 3A-2, MCE Course Application and receive written acknowledgment
from the commission prior to offering an MCE elective course. Prior to advertising
or offering a course offered by another provider the subsequent provider must
submit an MCE Form 3B-3, Course Application Supplement, and receive written
acknowledgment from the commission.
(t)
Legal update and legal ethics course application. A provider
must submit an MCE form 3B-3, Course Application Supplement and receive written
acknowledgment from the commission prior to offering a legal update or legal
ethics course.
(u)
Core courses for elective credit. Courses approved by the
commission for core real estate course credit provided in the Act, §1101.356
and §1101.358, may be accepted for satisfying MCE elective credit course
requirements provided the student files a course completion certificate with
the commission.
(v)
Acceptable combined courses. An elective credit course
offered by a provider to satisfy all or part of the nine hours of other than
legal topics required by the Act, §1101.455, may be offered with the
required legal update course or required legal ethics course.
(w)
Required legal courses for real estate related courses.
MCE legal update and legal ethics courses may be accepted by the commission
as real estate related courses for satisfying the education requirements of §1101.356
and §1101.358, of the Act.
(x)
Correspondence courses for elective credit. An MCE provider
may register an MCE elective course by correspondence with the commission
if the course is subject to the following conditions:
(1)
the course must be offered by a college or university accredited
by a regional accrediting association, such as the Commission on Colleges
of the Southern Association of Colleges and Schools, or its equivalent, which
offers correspondence courses, whether credit or noncredit, in other disciplines;
(2)
the content of the course must satisfy the requirements
of the Act, §1101.455, and these sections; and
(3)
the course does not include a request for required legal
course credit.
(y)
Alternative delivery method courses for elective credit.
An MCE provider may register an MCE elective course by alternative delivery
method with the commission if the course is subject to the following conditions:
(1)
The content of the course must satisfy the requirements
of the Act, §1101.455, and these sections;
(2)
the course does not include a request for required legal
course credit; and
(3)
every provider offering a registered course under this
subsection shall:
(A)
ensure that a qualified person is available to answer students'
questions or provide assistance as necessary;
(B)
provide that procedures are in place to ensure that the
student who completes the work is the student who is enrolled in the course;
and
(C)
certify students as successfully completing the course
only if the student:
(i)
has completed all instructional modules required to demonstrate
mastery of the material; and
(ii)
has attended any hours of live instruction and/or testing
required for a given course.
(z)
Correspondence courses for required legal credit. The commission
may approve a provider to offer an MCE required legal ethics course by correspondence
subject to the following conditions:
(1)
the course must be offered by a college or university accredited
by a regional accrediting association, such as the Commission on Colleges
of the Southern Association of Colleges and Schools, or its equivalent, which
offers correspondence courses, whether credit or noncredit, in other disciplines;
(2)
the content of the course must satisfy the requirements
of the Act, §1101.455 and these sections, and must be substantially similar
to the legal courses disseminated and updated by the Commission;
(3)
students receiving MCE credit for the course must pass
either:
(A)
a proctored final examination administered under controlled
conditions to positively identified students, at a location and by an official
approved by the commission and graded by the instructor or, if the examination
is being graded mechanically or by use of a computer, by the provider, using
answer keys approved by the instructor or provider; or
(B)
an examination by use of a computer under conditions that
satisfy the commission that the examinee is the same person who seeks MCE
credit; and
(4)
written course work required of students must be graded
by an approved instructor or the provider's coordinator or director, who is
available to answer students' questions or provide assistance as necessary,
using answer keys approved by the instructor or provider.
(aa)
Each required legal course offered by correspondence must
contain the following:
(1)
course description;
(2)
learning objectives;
(3)
evaluation techniques;
(4)
lessons;
(5)
learning activities;
(6)
final examination;
(7)
source materials disseminated by the Commission including
all updates; and
(8)
instructor grading guidelines, including acceptable answers
for lessons, assessments and examinations.
(bb)
Alternative delivery method courses for required legal
credit. The commission may accept required legal courses offered by alternative
delivery method subject to the following conditions.
(1)
the content of the course must satisfy the requirements
of the Act, §1101.455 and these sections, and must be substantially similar
to the legal courses disseminated and updated by the Commission;
(2)
Every course accepted under this subsection shall teach
to mastery. Teaching to mastery means that the course must, at a minimum:
(A)
divide the material into major units as approved by the
commission;
(B)
divide each of the major units of content into modules
of instruction for delivery on a computer or other approved interactive audio
or audiovisual programs;
(C)
specify the learning objectives for each module of instruction.
The learning objectives must be comprehensive enough to ensure that if all
the objectives are met, the entire content of the course will be mastered;
(D)
specify an objective, quantitative criterion for mastery
used for each learning objective;
(E)
implement a structured learning method by which each student
is able to attain each learning objective;
(F)
provide a means of diagnostic assessment of each student's
performance on an ongoing basis during each module of instruction, measuring
what each student has learned and not learned at regular intervals throughout
each module of instruction, and specifically assessing the mastery of each
concept covered in the content material;
(G)
provide a means of tailoring the instruction to the needs
of each student as identified in subparagraph (E) of this subsection. The
process of tailoring the instruction shall ensure that each student receives
adequate remediation for specific deficiencies identified by the diagnostic
assessment;
(H)
continue the appropriate remediation on an individualized
basis until the student demonstrates achievement of each mastery criterion;
and
(I)
require that the student demonstrate mastery of all material
covered by the learning objectives for the module before the module is completed.
(3)
The commission must approve the method by which each of
the above elements of mastery in paragraph (2)(A) - (I) of this subsection
is accomplished.
(4)
The rationale for the education processes implemented in
the course must be based on sound instructional strategies which have been
systematically designed and proven effective through educational research
and development. The basis and rationale for any proposed instructional approach
must be specified in the application for approval. The following types of
programs will not be approved:
(A)
those which consist primarily of text material;
(B)
those which primarily consist of questions similar to those
on the state licensing examination; or
(C)
those which consist primarily of combinations of the elements
in subparagraphs (A) and (B) of this paragraph.
(5)
An approved instructor or the provider's coordinator/director
shall grade the written course work.
(6)
Every provider offering an approved course under this subsection
shall:
(A)
ensure that a qualified person is available to answer students'
questions or provide assistance as necessary;
(B)
satisfy the commission that procedures are in place to
ensure that the student who completes the work is the student who is enrolled
in the course; and
(C)
certify students as successfully completing the course
only if the student;
(i)
has completed all instructional modules required to demonstrate
mastery of the material;
(ii)
has attended any hours of live instruction and/or testing
required for a given course; and
(iii)
has passed either:
(I)
a proctored final examination administered under controlled
conditions to positively identified students, at a location and by an official
approved by the commission and graded by the instructor or, if the examination
is being graded mechanically or by use of a computer, by the provider, using
answer keys approved by the instructor or provider; or
(II)
an examination by use of a computer under conditions that
satisfy the commission that the examinee is the same person who seeks MCE
credit.
(cc)
An applicant must submit an MCE Form 3B-3, MCE Course
Application Supplement to seek approval to offer an MCE distance learning
required legal course and receive written acknowledgment from the commission
prior to offering the course. Distance learning legal courses may be offered
on or after July 1, 2005.
(dd)
For a distance learning course, the provider shall award
the student credit for the course upon completion of the course requirements
for credit and shall report the awarding of credit to the commission. Course
credit must be reported either by the provider filing a completed MCE Form
9-7 signed by the student, or submitting the information contained in MCE
form 9-7 by electronic means acceptable to the commission.
(ee)
A provider may use as guest speakers persons who have
not been approved as instructors, provided that no more than a total of 25%
of the course is taught by the unapproved persons during a registered MCE
elective credit course. The commission-registered instructor must remain in
the classroom during the guest speaker's presentation.
§535.72.Mandatory Continuing Education: Presentation of Courses, Advertising and Records.
(a)
Course completion roster. A provider offering each MCE
course shall file an MCE Course Completion Roster, MCE Form 8-4 with the commission
within 10 days following completion of the course for licensees who have attended
the entire course registered with the commission. Course completion rosters
may be transmitted for filing by facsimile machine. An authorized representative
of the provider who was in attendance and for whom an authorized signature
exemplar is on file with the commission shall sign MCE Form 8-4. Providers
are responsible for the security of the course completion rosters. The commission
may not accept signature stamps, unsigned forms or forms signed by persons
for whom an authorized signature exemplar has not been previously filed with
the commission. Providers must make every reasonable effort to ensure that
no student is certified for full MCE credit who has not attended all class
sessions.
(b)
Partial credit. For elective credit courses only, providers
may grant partial credit to students who attend less than the complete course
registered with the commission only if the segments of the course for which
partial credit may be granted are not less than one hour in length. Partial
credit may be granted at the discretion of the provider; however partial credit
shall not be awarded for any hour in which the student was not present in
the classroom for at least 50 minutes of actual class time in a 50-minute
class session. Partial credit may not be granted for any legal course segment
of a combined legal and elective course. Requests for partial credit shall
be filed on MCE Partial Credit Request Form 14-0 and the student and provider
must verify that the student has attended the course for the number of hours
for which credit is requested.
(c)
Attendance. While a provider is expected to ensure that
each student is present in the classroom for the hours of time for which credit
is awarded, this section is not intended to penalize students who must leave
the classroom for brief periods of time for personal reasons. Providers shall
make every reasonable effort to ensure that no student is given course credit
if the student persists in disrupting the orderly conduct of a class after
being cautioned by the provider or the instructor to cease disruptive behavior.
Providers may not use students for administration or monitoring duties during
the course if the use prevents the student's participation in a significant
portion of the course.
(d)
Proof of distance learning course completion. In a distance
learning course, the provider shall award the student credit for the course
upon completion of the course requirements for credit and shall report the
awarding of credit to the commission. Course credit must be reported either
by the provider filing a completed MCE Form 9-7, signed by the student, or
submitting the information contained in MCE Form 9-7 by electronic means acceptable
to the commission. If the provider chooses to use an electronic reporting
process, the process must ensure that only students who complete the course
are reported to the commission as receiving course credit and that the process
does not compromise the security of commission records.
(e)
Pre-course announcements. A provider shall, prior to commencement
of a course, announce that the provider will not certify a student for full
MCE credit unless the student attends all sessions of the course, that no
makeups or written work will be allowed for MCE credit, that students may
evaluate the course and instructor by downloading an evaluation form from
the TREC web site and submitting the form electronically or by mail, and that
the student must determine if the course is timely and appropriate for the
student's MCE requirement. If the provider accepts partial credit for partial
attendance at an elective credit course, the provider shall explain the procedure
for granting partial credit. If the provider has not advertised or otherwise
made students aware of the provider's refund policy, the pre-course announcement
must also contain the refund policy. The provider may allow a ten-minute break
for every 50 minutes of session time, but a break must be given at least every
two hours, using all accumulated break time, and the daily course presentation
may not exceed ten hours.
(f)
Facilities. Facilities used by providers for classroom
presentations must be adequate to accommodate students. Providers shall ensure
each student has seating, a writing surface and writing materials. Rigid tablets
or clipboards may be provided as a writing surface.
(g)
Course materials. Providers must furnish students with
copies, for students' permanent use, of any printed material which is the
basis for a significant portion of the course. Ample space must be provided
on handouts for note taking or completion of any written exercises. If a provider
charges fees for supplies, materials, or books needed in course work, the
fees must be itemized in a written statement provided to each student by the
provider before the student registers for the course.
(h)
Open enrollment. All MCE courses must be open to enrollment
by the general public. Providers may give preference in enrollment to persons
who need MCE credit to obtain, renew or activate a license and may enroll
all others on a space available basis. For a classroom course, the provider
must offer the course in a location conducive to instruction that is separate
and apart from the work area, such as a classroom, training room, conference
room, or assembly hall.
(i)
Advertising. Advertising of MCE shall be subject to the
following conditions.
(1)
A provider applicant may not advertise a specific MCE course
or represent in advertising that the applicant is a provider until the applicant
has received written approval from the commission for the providership and
registered at least one course. A provider applicant may advertise an intention
to offer MCE courses if no specific course is described and the advertisement
clearly indicates the applicant has not been approved as a provider.
(2)
A provider may not offer a course until the provider has
received written acknowledgment of registration of the course.
(3)
Any advertisement or promotional material used by a provider
must indicate the MCE provider's name or assumed business name as reflected
in the commission's records and the MCE provider number assigned by the commission.
The advertisement or promotional material also must include either the specific
MCE course numbers and course titles or a statement that MCE course numbers
and titles are available from the provider. When a provider offers a course
that is hosted by another person or organization, the advertisement or promotional
material must show clearly that the approved MCE provider is offering the
course.
(4)
A provider may not publish advertisements which are misleading
or which are likely to deceive the public.
(5)
Any name a provider uses in advertising must not be deceptively
similar to the name of any other approved MCE provider or school accredited
by the commission, or falsely imply a governmental relationship.
(6)
Any written advertisement which contains a fee charged
by the provider shall display all fees for the course in the same place in
the advertisement and with the same degree of prominence. If a provider requires
students to purchase course materials which are not included in the tuition,
any such fees must appear in the advertisement of the course.
(j)
Record retention. Providers shall retain student attendance
records for a period of three years following the completion of a course and
shall make copies of the records available to former students. A provider
may charge a reasonable fee to defray the cost of copying student records.
A provider's records must be kept at the location designated in the MCE Provider
Application. Providers must obtain prior approval from the commission to change
the location at which the provider's records are kept.
(k)
Course administration. Providers of MCE courses are responsible
to the commission for the conduct and administration of each course presentation,
the punctuality of classroom sessions, verification of student attendance,
and instructor performance. Providers shall ensure that the required legal
courses are administered by instructors in substantially the same manner as
disseminated and updated by the commission. During the presentation of a course,
providers may not promote the sale of goods or services.
(l)
Updates. If the commission determines that it is in the
public interest to update the required legal courses about changes in the
law, the commission may require the provider to furnish each student with
a copy of the information. The commission also may require the provider to
ensure that the provider's instructors include the material in the presentation
of the course. The commission shall furnish the provider with a copy of the
information and notify the provider that the commission requires compliance
with this subsection in a required legal course or any elective course combined
with a legal course offered after the provider's receipt of the notice. Failure
to comply with this subsection constitutes grounds for disciplinary action
against the provider and instructor under §535.73 of this chapter (relating
to Compliance and Enforcement) or for disapproval of an application for approval
as a provider under §535.71 of this chapter (relating to Mandatory Continuing
Education: Approval of Providers, Courses and Instructors).
(m)
Change in ownership. In the event of a change of ownership,
the provider must obtain approval from the commission prior to the change,
and proposed new owners shall submit an MCE Form 2-2, Principal Information
Form. Providers shall report a change in business name, street or mailing
address, person responsible for records or day-to-day operations, or persons
authorized to sign MCE forms at least 15 days prior to the desired date of
change. Providers shall report any change in refund policy, attorney-in-fact,
address of attorney-in-fact or business telephone number as the change occurs.
(n)
MCE credit for instructors. Providers may request MCE credit
be given to instructors of MCE courses subject to the following guidelines.
(1)
The instructors may receive credit for only those portions
of the course that they teach by filing a completed MCE Form 11-4, Instructor
Credit Request.
(2)
The instructors may receive full course credit by attending
all of the remainder of the course and signing the course completion roster.
(o)
Written policies. Each provider shall establish written
policies governing refunds and contingency plans in the event of course cancellation.
If the provider cancels a course, the provider shall fully refund all fees
collected from students, or at the student's option, the provider may credit
the student for another course of equal or greater credit hours.
§535.73.Compliance and Enforcement.
(a)
Complaints. The commission shall investigate complaints
against MCE providers or instructors that allege acts constituting violations
of these sections. Complaints must be in writing and the commission shall
not initiate an investigation or take action against a provider or instructor
based on an anonymous complaint. Commission employees may file written complaints
against providers or instructors if documents filed with the commission provide
reasonable cause to believe a violation of these sections has occurred.
(b)
Complaint investigation. Complaints received by the MCE
section of the education division of the commission or by any other division
of the commission shall be referred to the enforcement division for appropriate
resolution. The provider or instructor named in the complaint shall be provided
with a copy of the complaint. Proceedings involving MCE providers or instructors
shall be conducted in accordance with the Administrative Procedure Act, Texas
Government Code, Chapter 2001 and the commission's general rules of practice
and procedure. Venue for any hearing conducted under this section shall be
in Travis County.
(c)
Audits and evaluations. Commission employees may conduct
on-site audits of any course offered by an approved MCE provider. Audits shall
be conducted without prior notice to the MCE provider and commission employees
may enroll and attend an MCE course without identifying themselves as employees
of the commission. Commission employees also may evaluate the effectiveness
of course materials or instructors through evaluations submitted by students
to the commission. An audit report or evaluations indicating noncompliance
with these sections will be treated as a written complaint against the provider
or instructor concerned and will be referred to the enforcement division for
appropriate resolution.
(d)
Cooperation with investigation. A provider or instructor
shall fully assist any employee of the commission engaged in the performance
of an audit or investigation of a complaint and shall provide records in his
possession for examination by the commission or provide such information as
is requested by the commission within 15 days of receiving a request for examination
of records or information.
(e)
Disciplinary action. The commission may reprimand, suspend
or revoke the authority of a provider to offer MCE courses or suspend or revoke
the approval of an instructor to teach MCE courses when it has been determined
that the provider or instructor has been guilty of:
(1)
procuring or attempting to procure approval for a provider,
course or instructor by fraud, misrepresentation or deceit, or by making a
material misrepresentation of fact in an application filed with the commission;
(2)
making a false representation to the commission, either
intentionally or negligently, that a person had attended a course or portion
of a course for which MCE credit was awarded, that a person had completed
an examination, or that the person had completed any other requirement for
an MCE course;
(3)
aiding or abetting a person to circumvent the requirements
for attendance established by these sections, the completion of any examination
or any other requirement for completion of an MCE course;
(4)
failing to provide within 15 days information requested
by the commission as a result of a complaint which would indicate a violation
of these sections;
(5)
disregarding or violating a provision of these sections
or the Act; or
(6)
making a materially false statement to the commission in
response to a request from the commission for information relating to a complaint
against the provider or instructor.
(f)
Instructor teaching skills. Instructors must conduct themselves
in a professional and courteous manner when performing their instructional
duties and must conduct classes in a manner that demonstrates a mastery of
the following basic teaching skills:
(1)
The ability to communicate effectively through speech,
including the ability to speak clearly at an appropriate rate of speed and
with appropriate voice inflection, grammar and vocabulary.
(2)
The ability to present an effective visual image to a class,
including appropriate appearance and physical mannerisms.
(3)
The ability to present instruction in a thorough, accurate,
logical, orderly and understandable manner, to utilize illustrative examples
as appropriate, and to respond appropriately to questions from students.
(4)
The ability to effectively utilize varied instructional
techniques in addition to straight lecture, such as class discussion, role
playing or other techniques.
(5)
The ability to effectively utilize instructional aids,
such as the overhead projector, to enhance learning.
(6)
The ability to maintain an appropriate learning environment
and effective control of a class.
(7)
The ability to interact with adult students in a positive
manner that encourages students to learn, that demonstrates an understanding
of varied student backgrounds, that avoids offending the sensibilities of
students, and that avoids personal criticism of any other person, agency or
organization.
(g)
Disciplinary action against instructors. The commission
may reprimand, suspend or revoke the registration or certification of an instructor
to teach MCE courses when it has been determined that the instructor has been
guilty of violating subsection (f) of this section.
(h)
Orders. An order of suspension or revocation issued under
this section may be probated upon reasonable terms and conditions as determined
by the commission.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on June 9, 2004.
TRD-200403789
Loretta DeHay
General Counsel
Texas Real Estate Commission
Earliest possible date of adoption: July 25, 2004
For further information, please call: (512) 465-3900
22 TAC §§535.91, 535.92, 535.94
The Texas Real Estate Commission (TREC) proposes amendments
to §535.91, concerning renewal applications, §535.92, concerning
renewal: time for filing; satisfaction of mandatory continuing education requirements,
and §535.94, concerning hearing on application disapproval: probationary
licenses. The amendments to §535.91, §535.92, and §535.94 change
the cites to the relevant statutory provisions in Chapter 1101, Texas Occupations
Code. House Bill 2813, 77th Legislature (2001), added Chapter 1101, a nonsubstantive
codification of The Real Estate License Act, and repealed Article 6573a, Texas
Civil Statutes effective June 1, 2003. The amendments are also proposed in
connection with TREC's on-going review of its rules and are generally intended
to update and to clarify the rules concerning definitions.
In addition, the proposed revisions to §535.91 and §535.92 require
all licensees to take a three hour legal update course and a three hour legal
ethics course created for and approved by TREC to satisfy the 6 legal hours
of mandatory continuing education required by Occupations Code §1101.455
(the Act). Elective courses to be used as credit for the remaining 9 hours
required by §1101.455 of the Act must be presentations of relevant issues
that impact the practice of real estate or which increase or support the development
of skill and competence. Core and mandatory continuing legal education courses
may be accepted for satisfying MCE elective credit only. Correspondence and
alternate delivery method courses may be taken to satisfy elective and legal
credit subject to certain conditions. A provider may grant partial credit
to a student who attends less than the complete course registered with the
commission only if the segments of the course for which partial credit may
be granted are not less than one hour in length; the student must attend at
least 50 minutes of the class hour to get credit for attendance for that hour.
Under the proposed revisions, the commission may approve on an individual
basis for MCE credit specific professional designation courses that a licensee
takes and applies for credit using an MCE Professional Designation Request
Form.
Loretta R. DeHay, general counsel, has determined that for the first five-year
period the proposed revisions to the sections are in effect there will be
no fiscal implications for the state as a result of enforcing or administering
the sections. There are no anticipated fiscal implications for units of local
government. There will be no impact on small businesses, micro businesses
or local or state employment as a result of implementing the sections.
Ms. DeHay also has determined that for each year of the first five years
the sections as proposed are in effect the public benefit anticipated as a
result of enforcing the sections will be increased knowledge of current real
estate related case law and statutory provisions due to the proposed requirements
to attend commission created legal mandatory continuing education courses.
There is no anticipated economic cost to persons who are required to comply
with the proposed sections.
Comments on the proposal may be submitted to Loretta R. DeHay, General
Counsel, Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188.
The amendments are proposed under Texas Occupations Code, §1101.151,
which authorizes the Texas Real Estate Commission to make and enforce all
rules and regulations necessary for the performance of its duties and to establish
standards of conduct and ethics for its licensees in keeping with the purpose
and intent of the Act to insure compliance with the provisions of the Act.
The statute affected by this proposal is Texas Occupations Code, Chapter
1101. No other statute, code or article is affected by the proposed amendments.
§535.91.Renewal Applications.
(a)
Each real estate license expires on the date shown on the
face of the license certificate issued to the licensee. The licensee has the
responsibility to apply for renewal of a license by making proper application,
paying the fee set by the commission and completing mandatory continuing education
(MCE) courses within the time periods required by the Act, §1101.455.
(b)
On or after January 1, 2005 and except
as authorized by §535.92 of this chapter, for the next and all subsequent
renewals of a license on active status that is not subject to the annual education
requirements of §1101.454 of the Act, the license holder must attend
during the term of the current license, at least two Commission-developed
legal courses consisting of a three-hour legal update course and a three-hour
legal ethics course to comply with the six legal hours of mandatory continuing
education required by §1101.455 of the Act. The remaining nine hours
required by §1101.455 of the Act may consist of elective credit courses
registered with the commission under subchapter G of this chapter.
(c)
The commission shall mail a renewal application
form for an active broker or an inactive licensee to the last known permanent
mailing address of the broker or licensee as shown in the commission's computerized
records. The commission shall mail a renewal application form for an active
salesperson to the permanent mailing address of the salesperson's sponsoring
broker. The commission shall mail the form three months before the expiration
of the current license. Each licensee shall furnish a permanent mailing address
to the commission and report all subsequent address changes within 10 days
after a change of address. If a licensee fails to provide a permanent mailing
address, the last known mailing address provided by the licensee will be deemed
to be the licensee's permanent mailing address. Applications must be made
on the current renewal application form approved by the commission accompanied
by the required fee. Failure to receive a license renewal application form
does not relieve a licensee of the obligation to obtain the appropriate form
and to apply for renewal of a license. A licensee shall provide information
requested by the commission in connection with an application to renew a license
within 30 days after the commission requests the information. Failure to provide
information requested by the commission in connection with a renewal application
within the required time is grounds for disciplinary action under the Act, §1101.656.
(d)
[
§535.92.Renewal. Time for Filing; Satisfaction of Mandatory Continuing Education Requirements.
(a)
(No change.)
(b)
If an application is filed within one year after the expiration
of an existing license, the commission may issue the new license prior to
completing the investigation of any complaint pending against the applicant
or of any matter revealed by the application. The commission may thereafter
initiate an action to suspend or revoke the license after notice and hearing
in accordance with
the Administrative Procedure Act, Texas Government
Code, Chapter 2001
[
(c)
(No change.)
(d)
A
[
(e) - (f)
(No change.)
(g)
[
(h)
A course taken by a Texas licensee to satisfy continuing
education requirements of another state may be approved on an individual basis
for MCE
elective
credit in this state upon the commission's determination
that:
(1) - (4)
(No change.)
(5)
the Texas licensee has filed MCE Form 10-
2
[
(i)
If a Texas licensee residing
in another state takes a course that meets the requirements of §535.92(h)
that course may be approved on an individual basis to satisfy MCE elective
credit in this state.
(j)
[
(k)
[
(l)
A course taken by a licensee
to obtain any of the following professional designations, or any other real
estate related professional designation course deemed worthy by the commission,
may be approved on an individual basis for MCE elective credit if the licensee
files for credit for the course using MCE Form 15-0 Individual MCE Elective
Credit Request for Professional Designation Course and provides the Commission
with a copy of the course completion certificate.
(1)
ABR - Accredited Buyer Representative
(2)
CRE - Counselor in Real Estate
(3)
CPM - Certified Property Manager
(4)
CCIM - Certified Commercial-Investment Member
(5)
CRB - Certified Residential Broker
(6)
CRS - Certified Residential Specialist
(7)
GRI - Graduate, Realtor Institute
(8)
IREM - Institute of Real Estate Management
(9)
SIOR - Society of Industrial and Office Realtors.
§535.94.Hearing on Application Disapproval: Probationary Licenses.
(a)
For the purposes of
the Real Estate License Act, Texas
Government Code, Chapter 1101, (the Act)
[
(b)
If the commission or an employee of the commission authorized
by it to conduct hearings and render final decisions in contested cases determines
that issuance of a probationary license is appropriate, the order entered
with regard to the application must set forth the terms and conditions for
the probationary license. Terms and conditions for a probationary license
may include any of the following:
(1)
that the probationary licensee comply with
the Act
[
(2) - (6)
(No change.)
(c) - (d)
(No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on June 9, 2004.
TRD-200403790
Loretta DeHay
General Counsel
Texas Real Estate Commission
Earliest possible date of adoption: July 25, 2004
For further information, please call: (512) 465-3900
22 TAC §535.101
The Texas Real Estate Commission (TREC) proposes amendments
to 535.101, concerning fees. The amendments to §535.101 change the cites
to the relevant statutory provisions in Chapter 1101, Texas Occupations Code.
House Bill 2813, 77th Legislature (2001), added Chapter 1101, a nonsubstantive
codification of The Real Estate License Act, and repealed Article 6573a, Texas
Civil Statutes effective June 1, 2003. The amendments are also proposed in
connection with TREC's on-going review of its rules and are generally intended
to update and to clarify the rules.
Loretta R. DeHay, General Counsel, has determined that for the first five-year
period the amendments are in effect there will be no fiscal implications for
the state as a result of enforcing or administering the amended section. There
are no anticipated fiscal implications for units of local government. There
is no anticipated impact on small businesses, micro businesses or local or
state employment as a result of implementing the amendments.
Ms. DeHay also has determined that for each year of the first five years
the amendments as proposed are in effect the public benefit anticipated as
a result of enforcing the amended section will be clarification of the underlying
statutory authority for the rule. There is no anticipated economic cost to
persons who are required to comply with the proposed amendments.
Comments on the proposal may be submitted to Loretta R. DeHay, General
Counsel, Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188.
The amendments are proposed under Texas Occupations Code, §1101.151,
which authorizes the Texas Real Estate Commission to make and enforce all
rules and regulations necessary for the performance of its duties and to establish
standards of conduct and ethics for its licensees in keeping with the purpose
and intent of the Act to insure compliance with the provisions of the Act.
The statute affected by this proposal is Texas Occupations Code, Chapter
1101. No other statute, code or article is affected by the proposed amendments.
§535.101.Fees.
(a)
(No change.)
(b)
The commission shall charge and collect the following fees:
(1) - (8)
(No change.)
(9)
a fee of $400 for filing an application for accreditation
of an education program under Texas
Occupations Code
[
(10)
a fee of $200 a year for operation of a real estate education
program under the Act,
§1101.301
[
(11) - (14)
(No change.)
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on June 9, 2004.
TRD-200403791
Loretta DeHay
General Counsel
Texas Real Estate Commission
Earliest possible date of adoption: July 25, 2004
For further information, please call: (512) 465-3900
22 TAC §535.122, §535.123
The Texas Real Estate Commission (TREC) proposes amendments
to §535.122, concerning reactivation of license and §535.123, concerning
inactive broker status. The amendments change the cites to the relevant statutory
provisions in Chapter 1101, Texas Occupations Code. House Bill 2813, 77th
Legislature (2001), added Chapter 1101, a nonsubstantive codification of The
Real Estate License Act, and repealed Article 6573a, Texas Civil Statutes
effective June 1, 2003. The amendments are also proposed in connection with
TREC's on-going review of its rules and are generally intended to update and
to clarify the rules.
Loretta R. DeHay, General Counsel, has determined that for the first five-year
period the amendments are in effect there will be no fiscal implications for
the state as a result of enforcing or administering the amended sections.
There are no anticipated fiscal implications for units of local government.
There is no anticipated impact on small businesses, micro businesses or local
or state employment as a result of implementing the amendments.
Ms. DeHay also has determined that for each year of the first five years
the amendments as proposed are in effect the public benefit anticipated as
a result of enforcing the amended sections will be clarification of the underlying
statutory authority for the rules. There is no anticipated economic cost to
persons who are required to comply with the proposed amendments.
Comments on the proposal may be submitted to Loretta R. DeHay, General
Counsel, Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188.
The amendments are proposed under Texas Occupations Code, §1101.151,
which authorizes the Texas Real Estate Commission to make and enforce all
rules and regulations necessary for the performance of its duties and to establish
standards of conduct and ethics for its licensees in keeping with the purpose
and intent of the Act to insure compliance with the provisions of the Act.
The statute affected by this proposal is Texas Occupations Code, Chapter
1101. No other statute, code or article is affected by the proposed amendments.
§535.122.Reactivation of License.
(a)
(No change.)
(b)
When a salesperson whose license status is inactive enters
the sponsorship of a broker and the salesperson is subject to mandatory continuing
education (MCE) requirements, the salesperson is not returned to active status
until MCE requirements are satisfied and the commission has received documentation
of course completion in a form satisfactory to the commission. A salesperson
whose original application or renewal application was subject to educational
requirements imposed by the Real Estate License Act
, Texas Occupations
Code, Chapter 1101
(Act)
, §1101.358 and §1101.454
[
§535.123.Inactive Broker Status.
(a) - (b)
(No change.)
(c)
To return to active status a broker who has been placed
on inactive status must apply to the commission for return to active status
on a form approved by the commission, pay the appropriate fee[
(d)
A broker who has been on inactive status may resume practice
once the broker has satisfied MCE requirements,
and
[
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on June 9, 2004.
TRD-200403794
Loretta DeHay
General Counsel
Texas Real Estate Commission
Earliest possible date of adoption: July 25, 2004
For further information, please call: (512) 465-3900
22 TAC §535.131, §535.132
The Texas Real Estate Commission (TREC) proposes amendments
to §535.131, concerning unlawful conduct; splitting fees and §535.132,
concerning eligibility for licensure. The amendments change the cites to the
relevant statutory provisions in Chapter 1101, Texas Occupations Code. House
Bill 2813, 77th Legislature (2001), added Chapter 1101, a nonsubstantive codification
of The Real Estate License Act, and repealed Article 6573a, Texas Civil Statutes
effective June 1, 2003. The amendments are also proposed in connection with
TREC's on-going review of its rules and are generally intended to update and
to clarify the rules.
Loretta R. DeHay, General Counsel, has determined that for the first five-year
period the amendments are in effect there will be no fiscal implications for
the state as a result of enforcing or administering the amendments. There
are no anticipated fiscal implications for units of local government. There
is no anticipated impact on small businesses, micro businesses or local or
state employment as a result of implementing the amended sections.
Ms. DeHay also has determined that for each year of the first five years
the amendments as proposed are in effect the public benefit anticipated as
a result of enforcing the amended sections will be clarification of the underlying
statutory authority for the rules. There is no anticipated economic cost to
persons who are required to comply with the proposed amendments.
Comments on the proposal may be submitted to Loretta R. DeHay, General
Counsel, Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188.
The amendments are proposed under Texas Occupations Code, §1101.151,
which authorizes the Texas Real Estate Commission to make and enforce all
rules and regulations necessary for the performance of its duties and to establish
standards of conduct and ethics for its licensees in keeping with the purpose
and intent of the Act to insure compliance with the provisions of the Act.
The statute affected by this proposal is Texas Occupations Code, Chapter
1101. No other statute, code or article is affected by the proposed amendments.
§535.131.Unlawful Conduct; Splitting Fees.
(a)
The Real Estate License Act, Texas
Occupations Code,
Chapter 1101
[
(b)
As used in
§1101.651
[
(c) - (d)
(No change.)
(e)
A resident of a foreign state that does not require a person
to be licensed to act as a real estate broker is considered to be licensed
as a broker for the purposes of the Act,
§1101.651
[
§535.132.Eligibility for Licensure.
(a)
A person residing in another state may apply for a license
under the provisions of Texas
Occupations Code, Chapter 1101
[
(1) - (2)
(No change.)
(b) - (d)
(No change.)
(e)
To be eligible to receive a license and maintain an active
license, a limited liability company or corporation created or chartered in
another state must designate a person to act for it who meets the requirements
of the Act,
§1101.453
[
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on June 9, 2004.
TRD-200403793
Loretta DeHay
General Counsel
Texas Real Estate Commission
Earliest possible date of adoption: July 25, 2004
For further information, please call: (512) 465-3900
22 TAC §§535.141, 535.143, 535.147, 535.153, 535.154
The Texas Real Estate Commission (TREC) proposes amendments
to §535.141, concerning initiation of investigation, §535.143, concerning
fraudulent procurement of license; §535.147, concerning splitting fee
with unlicensed person; §535.153, concerning violating an exclusive agency;
and §535.154, concerning misleading advertising. The amendments change
the cites to the relevant statutory provisions in Chapter 1101, Texas Occupations
Code. House Bill 2813, 77th Legislature (2001), added Chapter 1101, a nonsubstantive
codification of The Real Estate License Act, and repealed Article 6573a, Texas
Civil Statutes effective June 1, 2003. The amendments are also proposed in
connection with TREC's on-going review of its rules and are generally intended
to update and to clarify the rules.
Loretta R. DeHay, General Counsel, has determined that for the first five-year
period the amendments are in effect there will be no fiscal implications for
the state as a result of enforcing or administering the amendments. There
are no anticipated fiscal implications for units of local government. There
is no anticipated impact on small businesses, micro businesses or local or
state employment as a result of implementing the amended sections.
Ms. DeHay also has determined that for each year of the first five years
the amendments as proposed are in effect the public benefit anticipated as
a result of enforcing the amended sections will be clarification of the underlying
statutory authority for the rules. There is no anticipated economic cost to
persons who are required to comply with the proposed amendments.
Comments on the proposal may be submitted to Loretta R. DeHay, General
Counsel, Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188.
The amendments are proposed under Texas Occupations Code, §1101.151,
which authorizes the Texas Real Estate Commission to make and enforce all
rules and regulations necessary for the performance of its duties and to establish
standards of conduct and ethics for its licensees in keeping with the purpose
and intent of the Act to insure compliance with the provisions of the Act.
The statute affected by this proposal is Texas Occupations Code, Chapter
1101. No other statute, code or article is affected by the proposed amendments.
§535.141.Initiation of Investigation.
(a)
(No change.)
(b)
If the Texas Real Estate Commission (the commission) receives
a complaint, and such complaint on its face alleges a possible violation of
the Real Estate License Act, Texas
Occupations Code, Chapter 1101
[
(c) - (j)
(No change.)
§535.143.Fraudulent Procurement of License.
A violation of
Texas Occupations Code
[
§535.147.Splitting Fee with Unlicensed Person.
(a)
(No change.)
(b)
"Commission or fees" includes any form of compensation
received for engaging in an act for which a license is required by Texas
Occupations Code, Chapter 1101
[
(c)
(No change.)
§535.153.Violating an Exclusive Agency.
Although a licensee, including one acting as agent for a prospective
buyer or prospective tenant, may not attempt to negotiate a sale, exchange,
lease, or rental of property under exclusive listing with another broker,
Texas Occupations Code
[
§535.154.Misleading Advertising.
(a) - (g)
(No change.)
(h)
An advertisement placed where it is likely to attract the
attention of passing motorists or pedestrians must contain language that clearly
and conspicuously identifies as a real estate broker or agent the person publishing
the advertisement. Advertisements in which the required language is not clear
and conspicuous shall be deemed by the commission to be deceptive and likely
to mislead the public for the purposes of Texas
Occupations Code, Chapter
1101
[
(i)
A real estate licensee placing an advertisement on the
Internet, electronic bulletin board, or similar mechanism must include on
each page on which the licensee's advertisement appears any information required
by this section and the disclosure relating to the advertiser's status as
a broker or agent required by
§1101.652(b)(23)
[
(j)
A real estate licensee placing an advertisement by using
any electronic communication, including but not limited to E-mail and E-mail
discussion groups, must include in the communication and in any attachment
which is an advertisement the information required by this section and the
disclosure relating to the advertiser's status as a broker or agent required
by
§1101.652(b)(23)
[
(k) - (l)
(No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on June 9, 2004.
TRD-200403795
Loretta DeHay
General Counsel
Texas Real Estate Commission
Earliest possible date of adoption: July 25, 2004
For further information, please call: (512) 465-3900
22 TAC §535.171
The Texas Real Estate Commission (TREC) proposes amendments
to §535.171, concerning subpoenas and fees. The amendments require a
party appealing a final decision of the Texas Real Estate Commission in a
contested case to pay the costs of preparing the original or certified copy
of a record of the contested case proceedings. Under Government Code, §2001.177,
an agency is required to clarify by rule if a party is required to pay the
costs of preparing a transcript.
Loretta R. DeHay, General Counsel, has determined that for the first five-year
period the amendments are in effect there will be no fiscal implications for
the state as a result of enforcing or administering the amendments. There
are no anticipated fiscal implications for units of local government. There
is no anticipated impact on small businesses, micro businesses or local or
state employment as a result of implementing the amended section.
Ms. DeHay also has determined that for each year of the first five years
the amendments as proposed are in effect the public benefit anticipated as
a result of enforcing the amended section will be clarification that the party
appealing a decision in a contested case proceeding is responsible for the
costs of preparing a transcript of the proceedings. There is an anticipated
economic cost to persons who are required to comply with the proposed amendments
as such persons will be responsible for bearing the transcription costs.
Comments on the proposal may be submitted to Loretta R. DeHay, General
Counsel, Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188.
The amendments are proposed under Texas Occupations Code, §1101.151,
which authorizes the Texas Real Estate Commission to make and enforce all
rules and regulations necessary for the performance of its duties and to establish
standards of conduct and ethics for its licensees in keeping with the purpose
and intent of the Act to insure compliance with the provisions of the Act.
The statute affected by this proposal is Texas Occupations Code, Chapter
1101. No other statute, code or article is affected by the proposed amendments.
§535.171.Subpoenas and Fees.
(a) - (b)
(No change.)
(c)
Pursuant to Texas Government Code §2001.177,
a party seeking judicial review of a final decision of the Texas Real Estate
Commission in a contested case shall pay all costs of preparing the original
or certified copy of a record of the contested case proceedings.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on June 9, 2004.
TRD-200403796
Loretta DeHay
General Counsel
Texas Real Estate Commission
Earliest possible date of adoption: July 25, 2004
For further information, please call: (512) 465-3900
22 TAC §§535.206, 535.208, 535.213 - 535.216, 535.220, 535.224, 535.227
The Texas Real Estate Commission (TREC) proposes amendments
to §535.206, concerning The Texas Real Estate Inspector Committee, §535.208,
concerning Application for a License, §535.213, concerning Schools and
Courses of Study in Real Estate Inspection, §535.214, concerning Examinations, §535.215,
concerning Inactive Inspector Status, §535.216, concerning Renewal of
License or Registration, §535.220, concerning Professional Conduct and
Ethics, §535.224, concerning Proceedings before the Committee, and §535.227,
concerning Standards of Practice: General Provisions. The amendments change
the cites to the relevant statutory provisions in Chapter 1101, Texas Occupations
Code, House Bill 2813, 77th Legislature (2001), added Chapter 1101, a nonsubstantive
codification of The Real Estate License Act, and repealed Article 6573a, Texas
Civil Statutes effective June 1, 2003. The amendments are also proposed in
connection with TREC's on-going review of its rules and are generally intended
to update and to clarify the rules.
Loretta R. DeHay, General Counsel, has determined that for the first five-year
period the amendments are in effect there will be no fiscal implications for
the state as a result of enforcing or administering the amendments. There
are no anticipated fiscal implications for units of local government. There
is no anticipated impact on small businesses, micro businesses or local or
state employment as a result of implementing the amended sections.
Ms. DeHay also has determined that for each year of the first five years
the amendments as proposed are in effect the public benefit anticipated as
a result of enforcing the amended sections will be clarification of the underlying
statutory authority for the rules. There is no anticipated economic cost to
persons who are required to comply with the proposed amendments.
Comments on the proposal may be submitted to Loretta R. DeHay, General
Counsel, Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188.
The amendments are proposed under Texas Occupations Code, §1101.151,
which authorizes the Texas Real Estate Commission to make and enforce all
rules and regulations necessary for the performance of its duties and to establish
standards of conduct and ethics for its licensees in keeping with the purpose
and intent of the Act to insure compliance with the provisions of the Act.
The statute affected by this proposal is Texas Occupations Code, Chapter
1101. No other statute, code or article is affected by the proposed amendments.
§535.206.The Texas Real Estate Inspector Committee.
(a)
The composition and functions of the committee are as prescribed
by Texas
Occupations Code, Chapter 1102
[
(b) - (f)
(No change.)
§535.208.Application for a License.
(a)
A person desiring to be licensed shall file an application
using forms prescribed by the commission. Prior to filing an application for
a real estate inspector license or for a professional inspector license, the
applicant must pay the required fee for evaluation of the education completed
by the person and must obtain a written response from the commission showing
the applicant meets current education requirements for the license. The commission
may require an applicant to furnish materials such as source outlines, syllabi,
course descriptions or official transcripts to verify course content or credit.
The commission may not accept an application for filing if the application
is materially incomplete or the application is not accompanied by the appropriate
fee. The commission may not issue a license unless the applicant:
(1)
(No change.)
(2)
satisfies any experience or education requirements established
by
Texas Occupations Code, Chapter 1102 (Chapter 1102)
[
(3)
successfully completes any qualifying examination required
by
Chapter 1102
[
(4)
(No change.)
(b)
A
[
(c) - (d)
(No change.)
(e)
An application for a license may be denied if the commission
determines that the applicant has failed to satisfy the commission as to the
applicant's honesty, trustworthiness and integrity or if the applicant has
been convicted of a criminal offense which is grounds for disapproval of an
application under §541.1 of this title (relating to Criminal Offense
Guidelines). Notice of the denial and any hearing on the denial shall be as
provided in
Texas Occupations Code, §1101.364,
[
(f)
(No change.)
§535.213.Schools and Courses of Study in Real Estate Inspection.
(a)
Except as provided by this section, the accreditation and
regulation of schools and courses of study in real estate inspection and the
approval of instructors will be conducted as required for real estate schools
by §535.64 of this title (relating to Accreditation of Schools and Approval
of Courses and Instructors, §535.65 of this title (relating to Changes
in Ownership or Operation of School; Presentation of Courses, Advertising,
and Records) and §535.66 of this title (relating to Payment of Annual
Fee, Audits, Investigations and Enforcement Actions). [
(b)
(No change.)
§535.214.Examinations.
(a)
There shall be an examination for a real estate inspector
license and for a professional inspector license. Questions shall be used
which will measure competency in the subject areas required for a license
by Texas
Occupations Code, Chapter 1102 (Chapter 1102),
[
(b)
Except as otherwise required by
Chapter 1102
[
§535.215.Inactive Inspector Status.
(a)
For the purposes of this section, an "inactive" inspector
is a licensed professional inspector, real estate inspector, or apprentice
inspector who is not authorized by law to engage in the business of performing
real estate inspections as defined by Texas
Occupations Code, Chapter
1102,
[
(1) - (5)
(No change.)
(b) - (f)
(No change.)
§535.216.Renewal of License or Registration.
(a)
A person licensed by the commission under Texas
Occupations
Code, Chapter 1102 (Chapter 1102)
[
(b)
(No change.)
(c)
A
[
(d)
A licensee shall provide information requested by the commission
in connection with an application to renew a license within 30 days after
the commission requests the information. Failure to provide information requested
by the commission in connection with a renewal application within the required
time is grounds for disciplinary action under
Texas Occupations Code, §1101.656
[
(e)
Renewal applications filed after expiration of the license
are subject to the increased fees provided by
Chapter 1102
[
(f) - (g)
(No change.)
§535.220.Professional Conduct and Ethics.
(a) - (c)
(No change.)
(d)
The relationship of the inspector with another inspector
should at a minimum meet the following guidelines.
(1) - (2)
(No change.)
(3)
If an inspector has knowledge of a possible violation of
the rules of the Texas Real Estate Commission or Texas
Occupations Code,
Chapter 1102
[
(e)
(No change.)
§535.224.Proceedings before the Committee.
(a)
The committee may be authorized by the commission to conduct
administrative hearings or recommend the entry of final orders by the commission,
or both, in contested cases regarding:
(1)
professional inspectors, real estate inspectors, or apprentice
inspectors who are alleged to have violated a provision of Texas
Occupations
Code, Chapter 1102 (Chapter 1102)
[
(2) - (3)
(No change.)
(b)
If the committee determines after a hearing that disciplinary
action is warranted, the committee may recommend that the commission issue
a reprimand, or suspend or revoke a license. The committee may recommend that
an order of suspension or revocation be probated in whole or in part by the
commission or that the probation be subject to reasonable terms and conditions
in the manner contemplated by
Texas Occupations Code, Chapter 1101, §1101.656
[
(c)
(No change.)
(d)
In addition to the grounds for disciplinary action provided
in
Chapter 1102
[
(1) - (3)
(No change.)
§535.227.Standards of Practice: General Provisions.
(a)
Definition of terms. The following words have the following
meanings, unless the context clearly indicates otherwise.
(1)
Chapter 1102--Texas Occupations Code, Chapter 1102
[
(2) - (9)
(No change.)
(b) - (c)
(No change.)
(d)
Enforcement. Failure to comply with §535.227 of this
title (relating to Standards of Practice: General Provisions), §535.228
of this title (relating to Standards of Practice: Inspection Guidelines for
Structural Systems, §535.229 of this title (relating to Standards of
Practice: Inspection Guidelines for Mechanical Systems: Appliances, Cooling
Systems, Heating Systems, Ducts, Vents and Flues, and Plumbing Systems), §535.230
of this title (relating to Standards of Practice: Inspection Guidelines for
Electrical Systems) and §535.231 of this title (relating to Standards
of Practice: Optional Systems) is a ground for disciplinary action as prescribed
by
Chapter 1102
[
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on June 9, 2004.
TRD-200403797
Loretta DeHay
General Counsel
Texas Real Estate Commission
Earliest possible date of adoption: July 25, 2004
For further information, please call: (512) 465-3900
22 TAC §535.300
The Texas Real Estate Commission (TREC) proposes amendments
to §535.300, concerning advertising by residential rental locators. The
amendments change the cites to the relevant statutory provisions in Chapter
1101, Texas Occupations Code. House Bill 2813, 77th Legislature (2001), added
Chapter 1101, a nonsubstantive codification of The Real Estate License Act,
and repealed Article 6573a, Texas Civil Statutes effective June 1, 2003. The
amendments are also proposed in connection with TREC's on-going review of
its rules and are generally intended to update and to clarify the rule.
Loretta R. DeHay, General Counsel, has determined that for the first five-year
period the amendments are in effect there will be no fiscal implications for
the state as a result of enforcing or administering the amendments. There
are no anticipated fiscal implications for units of local government. There
is no anticipated impact on small businesses, micro businesses or local or
state employment as a result of implementing the amended section.
Ms. DeHay also has determined that for each year of the first five years
the amendments as proposed are in effect the public benefit anticipated as
a result of enforcing the amended section will be clarification of the underlying
statutory authority for the rule. There is no anticipated economic cost to
persons who are required to comply with the proposed amendments.
Comments on the proposal may be submitted to Loretta R. DeHay, General
Counsel, Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188.
The amendments are proposed under Texas Occupations Code, §1101.151,
which authorizes the Texas Real Estate Commission to make and enforce all
rules and regulations necessary for the performance of its duties and to establish
standards of conduct and ethics for its licensees in keeping with the purpose
and intent of the Act to insure compliance with the provisions of the Act.
The statute affected by this proposal is Texas Occupations Code, Chapter
1101. No other statute, code or article is affected by the proposed amendments.
§535.300.Advertising by Residential Rental Locators.
(a)
This section is intended to establish standards relating
to permissible forms of advertising by a person licensed as a real estate
broker or salesperson and functioning as a residential rental locator ("locator").
For the purposes of this section, the term "residential rental locator" shall
have the meaning provided by Texas
Occupations Code, Chapter 1101
[
(b) - (d)
(No change.)
(e)
Advertising by locators must also comply with the provisions
of the Act,
§1101.652(b)(23)
[
(f)
Failure to comply with this section is grounds for the
commission to reprimand a licensee, to suspend or revoke a license, or to
impose an administrative penalty in accordance with the Act,
§1101.757
[
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on June 9, 2004.
TRD-200403799
Loretta DeHay
General Counsel
Texas Real Estate Commission
Earliest possible date of adoption: July 25, 2004
For further information, please call: (512) 465-3900
22 TAC §§535.400, 535.402, 535.403
The Texas Real Estate Commission (TREC) proposes amendments
to Subchapter T, §§535.400, 535.402, 535.403, concerning Easement
or Right-of-Way Agents. The amendments change the cites to the relevant statutory
provisions in Chapter 1101, Texas Occupations Code. House Bill 2813, 77th
Legislature (2001), added Chapter 1101, a nonsubstantive codification of The
Real Estate License Act, and repealed Article 6573a, Texas Civil Statutes
effective June 1, 2003. The amendments are also proposed in connection with
TREC's on-going review of its rules and are generally intended to update and
to clarify the rules.
Loretta R. DeHay, General Counsel, has determined that for the first five-year
period the amendments are in effect there will be no fiscal implications for
the state as a result of enforcing or administering the amendments. There
are no anticipated fiscal implications for units of local government. There
is no anticipated impact on small businesses, micro businesses or local or
state employment as a result of implementing the amended sections.
Ms. DeHay also has determined that for each year of the first five years
the amendments as proposed are in effect the public benefit anticipated as
a result of enforcing the amended sections will be clarification of the underlying
statutory authority for the rules. There is no anticipated economic cost to
persons who are required to comply with the proposed amendments.
Comments on the proposal may be submitted to Loretta R. DeHay, General
Counsel, Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188.
The amendments are proposed under Texas Occupations Code, §1101.151,
which authorizes the Texas Real Estate Commission to make and enforce all
rules and regulations necessary for the performance of its duties and to establish
standards of conduct and ethics for its licensees in keeping with the purpose
and intent of the Act to insure compliance with the provisions of the Act.
The statute affected by this proposal is Texas Occupations Code, Chapter
1101. No other statute, code or article is affected by the proposed amendments.
§535.400.Registration of Easement or Right-of-Way Agents.
(a)
(No change.)
(b)
An individual desiring to be registered by the commission
as an easement or right-of-way agent must file form ERW 1-2 with the commission.
If the applicant is a business, the applicant must file form ERW 2-2. All
applicants must submit the applicable fees set forth in The Real Estate License
Act, Texas
Occupations Code, Chapter 1101
[
(c)
(No change.)
(d)
The commission shall assign a registration number to each
registrant and shall provide each registrant with a certificate of registration.
Each registration issued by the commission is valid until the last day of
the month one year from the day the registration was issued. Each registrant
shall display the certificate of registration issued by the commission in
a prominent location in the registrant's place of business, as required by
the Act,
§1101.507
[
(e)
(No change.)
(f)
The commission may disapprove an application for registration
with written notice to the applicant if the applicant has been convicted of
a criminal offense which is grounds for disapproval of an application under §541.1
of this title (relating to Criminal Offense Guidelines) or the applicant has
engaged in conduct prohibited by the Act. Provided a timely written request
for a hearing is made by the applicant in accordance with the Act,
§1101.364
[
§535.402.Complaints, Disciplinary Action and Appeals.
(a)
(No change.)
(b)
Appeals from disciplinary orders against a registrant will
be governed by the Act,
§1101.658
[
§535.403.Renewal of Registration.
(a)
The commission shall establish a time period for renewal
of each registration, which shall end with the expiration date of the current
registration. Each registrant has the responsibility to apply for renewal
of a registration by making proper application as specified by this section.
Applications must be made on the current renewal application form approved
by the commission accompanied by an annual fee of $83. Failure to receive
a registration renewal application form from the commission does not relieve
a registrant of the obligation to obtain the appropriate form and to apply
for renewal to maintain registration.
A
[
(b)
(No change.)
(c)
The commission shall advise each registrant of the time
period for filing a renewal application and paying the renewal fee by mailing
a renewal application form to the registrant's last known permanent mailing
address as shown in the commission's computerized records at least three months
before expiration of the current registration. Each registrant shall furnish
a permanent mailing address to the commission and report a change in permanent
mailing address within 10 days after the change occurs. If a registrant fails
to provide a permanent mailing address, the last known mailing address for
the registrant will be deemed to be the registrant's permanent mailing address.
The commission shall have no obligation to so notify a business entity such
as a corporation, limited liability company or partnership, that has failed
to designate an officer, manager or partner who meets the requirements of
Section
1101.502
[
(d) - (e)
(No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on June 9, 2004.
TRD-200403800
Loretta DeHay
General Counsel
Texas Real Estate Commission
Earliest possible date of adoption: July 25, 2004
For further information, please call: (512) 465-3900
22 TAC §537.11, §537.46
The Texas Real Estate Commission (TREC) proposes amendments
to §537.11 and §537.46, concerning standard contract forms. These
amendments would adopt by reference a revised contract form to be used by
Texas real estate licensees.
Texas real estate licensees are generally required to use forms promulgated
by TREC when negotiating contacts for the sale of real property. These forms
are drafted by the Texas Real Estate Broker-Lawyer Committee, an advisory
body consisting of six attorneys appointed by the President of the State Bar
of Texas, six brokers appointed by TREC, and a public member appointed by
the governor.
The amendment to §537.11 would renumber the revised form promulgated
by TREC.
The amendment to §537.46 would adopt by reference Standard Contract
Form TREC No. 39-4, Amendment. The form would be revised to delete Paragraph
3 regarding the option fee, add a new paragraph to extend the date for buyer
to give written notice to seller that buyer cannot obtain financing approval
as set forth in the Third Party Financing Condition, and renumber the form
accordingly.
Loretta R. DeHay, General Counsel, has determined that for the first five-year
period the amendments are in effect there will be no fiscal implications for
the state or for units of local government as a result of enforcing or administering
the amendments. There is no anticipated impact on small businesses, micro-businesses
or local or state employment as a result of implementing the amended sections.
Ms. DeHay also has determined that for each year of the first five years
the amendments as proposed are in effect the public benefit anticipated as
a result of enforcing the amended sections will be the availability of current
standard contract forms. There is no anticipated economic cost to persons
who are required to comply with the proposed amendments, other than the costs
of obtaining copies of the forms, which would be available at no charge through
the TREC web site, and available from private printers at an estimated cost
of $7.50 per set of 50 copies.
Comments on the proposal may be submitted to Loretta R. DeHay, General
Counsel, Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188.
The amendments are adopted under Texas Occupations Code, §1101.151,
which authorizes the Texas Real Estate Commission to adopt and enforce rules
necessary to administer Chapter 1101 and Chapter 1102; and to establish standards
of conduct and ethics for its licensees to fulfill the purposes of Chapter
1101 and Chapter 1102 and ensure compliance with Chapter 1101 and Chapter
1102.
The statute affected by this proposal is Texas Occupations Code, Chapter
1101. No other statute, code or article is affected by the proposed amendments.
§537.11.Use of Standard Contract Forms.
(a)
Standard Contract Form TREC No. 9-5 is promulgated for
use in the sale of unimproved property where intended use is for one to four
family residences. Standard Contract Form TREC No. 10-4 is promulgated for
use as an addendum concerning sale of other property by a buyer to be attached
to promulgated forms of contracts. Standard Contract Form TREC No. 11-5 is
promulgated for use as an addendum to be attached to promulgated forms of
contracts which are second or "back-up" contracts. Standard Contract Form
TREC No. 12-1 is promulgated for use as an addendum to be attached to promulgated
forms of contracts where there is a Veterans Administration release of liability
or restoration entitlement. Standard Contract Form TREC No. 15-3 is promulgated
for use as a residential lease when a seller temporarily occupies property
after closing. Standard Contract Form TREC No. 16-3 is promulgated for use
as a residential lease when a buyer temporarily occupies property prior to
closing. Standard Contract Form 20-6 is promulgated for use in the resale
of residential real estate. Standard Contract Form TREC No. 23-5 is promulgated
for use in the sale of a new home where construction is incomplete. Standard
Contract Form TREC No. 24-5 is promulgated for use in the sale of a new home
where construction is completed. Standard Contract Form TREC No. 25-4 is promulgated
for use in the sale of a farm or ranch. Standard Contract Form TREC No. 26-4
is promulgated for use as an addendum concerning seller financing. Standard
Contract Form TREC No. 28-0 is promulgated for use as an addendum to be attached
to promulgated forms of contracts where reports are to be obtained relating
to environmental assessments, threatened or endangered species, or wetlands.
Standard Contract Form TREC No. 30-4 is promulgated for use in the resale
of a residential condominium unit Standard Contract Form TREC No. 32-0 is
promulgated for use as a condominium resale certificate. Standard Contract
Form TREC No. 33-0 is promulgated for use as an addendum to be added to promulgated
forms of contracts in the sale of property adjoining and sharing a common
boundary with the tidally influenced submerged lands of the state. Standard
Contract Form TREC Form No. 34-1 is promulgated for use as an addendum to
be added to promulgated forms of contracts in the sale of property located
seaward of the Gulf Intracoastal Waterway. Standard Contract Form TREC Form
No. 36-3 is promulgated for use as an addendum to be added to promulgated
forms in the sale of property subject to mandatory membership in an owners'
association. Standard Contract Form TREC Form No. 37-1 is promulgated for
use as a resale certificate when the property is subject to mandatory membership
in an owners' association. Standard Contract Form TREC Form No. 38-1 is promulgated
for use as a notice of termination of contract. Standard Contract Form TREC
Form No.
39-5
[
(b) - (j)
(No change.)
§537.46.Standard Contract Form TREC No. 39-5 [
The Texas Real Estate Commission adopts by reference standard contract
form TREC No.
39-5
[
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on June 9, 2004.
TRD-200403801
Loretta DeHay
General Counsel
Texas Real Estate Commission
Earliest possible date of adoption: July 25, 2004
For further information, please call: (512) 465-3900
Chapter 591.
GENERAL PROVISIONS
22 TAC §591.5
The Texas Structural Pest Control Board proposes an amendment
to §591.5, concerning Board Meetings. The proposal will change the number
of days notice required for a meeting.
Dale Burnett, Executive Director, has determined that there will be no
fiscal implications as result of enforcing or administering the rule. There
is no estimated additional cost or estimated reduction in cost for state government.
There will be no estimated increase in revenue to state government for the
first five-year period the rule will be in effect. There will be no estimated
additional cost, estimated reduction in cost or estimated increase in revenue
on local government for the first five-year period the rule will be in effect.
There will be no cost of compliance for small businesses since the rule proposal
does not affect them. There is no cost comparison for small or large businesses
since they will not be affected by the rule proposal.
Dale Burnett, Executive Director, has determined that for each of the first
five years the rule as proposed is in effect, the public benefits anticipated
as a result of enforcing the rule as proposed will be that the agency can
meet requirements of the Open Meetings Act. There are no economic costs to
individuals who are required to comply with the rule as proposed.
Comments on the proposal may be submitted to Frank M. Crull, General Counsel,
Structural Pest Control Board, P.O. Box 1927, Austin, TX 78767.
The amendment is proposed under the Texas Occupations Code, Chapter
1951, which provides the Structural Pest Control Board with the authority
to license and regulate the structural pest control industry.
No other statute, code or article is affected by this proposal.
§591.5.Board Meetings.
(a)
The board shall hold at least four regular meetings each
year as authorized by the chairman. A special meeting shall be called when
two or more members petition the chairman, in writing, to call such meeting.
(b)
All board meetings will be held in Austin, Texas, unless
a change of place is determined by the board.
(c)
The executive director shall notify each board member of
the date and place of meeting at least
eight
[
(d)
There shall be a majority of board members present at any
board meeting in order to have a quorum to transact business. All decisions
of the board will be by simple majority of board members present.
(e)
The minutes of the board shall be kept in such form and
manner as the board may prescribe.
(f)
In its deliberations, the board shall be governed by the
current edition of Robert's Rules of Order unless the board by rule adopts
a different procedure.
(g)
The Board may order a public hearing in any pending matter
other than a contested case where the public interest would be best served
thereby.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on June 8, 2004.
TRD-200403740
Dale Burnett
Executive Director
Structural Pest Control Board
Earliest possible date of adoption: July 25, 2004
For further information, please call: (512) 305-8270
22 TAC §591.6
The Texas Structural Pest Control Board proposes an amendment
to §591.6, concerning the Board Seal. The proposal will comply with the
interpretation of the Texas Secretary of State on the appearance of the State
Seal used by state agencies.
Dale Burnett, Executive Director, has determined that there will be no
fiscal implications as result of enforcing or administering the rule. There
is no estimated additional cost or estimated reduction in cost for state government.
There will be no estimated increase in revenue to state government for the
first five-year period the rule will be in effect. There will be no estimated
additional cost, estimated reduction in cost or estimated increase in revenue
on local government for the first five-year period the rule will be in effect.
There will be no cost of compliance for small businesses since the rule proposal
does not affect them. There is no cost comparison for small or large businesses
since they will not be affected by the rule proposal.
Dale Burnett, Executive Director, has determined that for each of the first
five years the rule as proposed is in effect, the public benefits anticipated
as a result of enforcing the rule as proposed will be that a Board Seal approved
by the Secretary of State to be used by all state agencies including the Board
will be more recognizable to the public. There are no economic costs to individuals
who are required to comply with the rule as proposed.
Comments on the proposal may be submitted to Frank M. Crull, General Counsel,
Structural Pest Control Board, P.O. Box 1927, Austin, TX 78767.
The amendment is proposed under the Texas Occupations Code, Chapter
1951, which provides the Structural Pest Control Board with the authority
to license and regulate the structural pest control industry.
No other statute, code or article is affected by this proposal.
§591.6.Board Seal.
The seal of the board shall be a circle with the words "The Texas Structural
Pest Control Board" circularly arranged about the inner edge, and in the center
of the circle, there shall be a five-pointed star, together with the live
oak and olive branches [
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on June 8, 2004.
TRD-200403741
Dale Burnett
Executive Director
Structural Pest Control Board
Earliest possible date of adoption: July 25, 2004
For further information, please call: (512) 305-8270
22 TAC §591.7
The Texas Structural Pest Control Board proposes an amendment
to §591.7, concerning the Board records. The proposal will reflect the
changes in the law from Open Records Act to Public Information Act and General
Services Commission to Texas Building and Procurement Commission. The other
change will allow other individuals besides the Executive Director to certify
documents.
Dale Burnett, Executive Director, has determined that there will be no
fiscal implications as result of enforcing or administering the rule. There
is no estimated additional cost or estimated reduction in cost for state government.
There will be no estimated increase in revenue to state government for the
first five-year period the rule will be in effect. There will be no estimated
additional cost, estimated reduction in cost or estimated increase in revenue
on local government for the first five-year period the rule will be in effect.
There will be no cost of compliance for small businesses since the rule proposal
does not affect them. There is no cost comparison for small or large businesses
since they will not be affected by the rule proposal.
Dale Burnett, Executive Director, has determined that for each of the first
five years the rule as proposed is in effect, the public benefits anticipated
as a result of enforcing the rule as proposed will be that the current and
correct statute and commission will be identified to the public. The option
for the Executive Director to designate someone else to certify records will
make certified records more available to the public. There are no economic
costs to individuals who are required to comply with the rule as proposed.
Comments on the proposal may be submitted to Frank M. Crull, General Counsel,
Structural Pest Control Board, P.O. Box 1927, Austin, TX 78767.
The amendment is proposed under the Texas Occupations Code, Chapter
1951, which provides the Structural Pest Control Board with the authority
to license and regulate the structural pest control industry.
No other statute, code or article is affected by this proposal.
§591.7.Board Records.
(a)
All official records of the Board shall be public records
open to inspection at any reasonable time by any person under the provisions
of the Texas
Public Information Act
[
(b)
Copies of official records may be made and certified by
the Chairman, Vice-Chairman, or the Executive Director
or the Executive
Director's designee
, the expense thereof to be borne by the person or
party requesting same. The cost of all such copies is set according to
Texas Building and Procurement Commission
[
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on June 8, 2004.
TRD-200403742
Dale Burnett
Executive Director
Structural Pest Control Board
Earliest possible date of adoption: July 25, 2004
For further information, please call: (512) 305-8270
22 TAC §591.10
The Texas Structural Pest Control Board proposes an amendment
to §591.10, concerning administrative penalties. The proposal will reflect
the changes in codifying the Structural Pest Control Act from Art. 135b-6
to Occupations Code, Chapter 1951. The other change corrects the spelling
of Executive Director in the rule to a uniform standard.
Dale Burnett, Executive Director, has determined that there will be no
fiscal implications as result of enforcing or administering the rule. There
is no estimated additional cost or estimated reduction in cost for state government.
There will be no estimated increase in revenue to state government for the
first five-year period the rule will be in effect. There will be no estimated
additional cost, estimated reduction in cost or estimated increase in revenue
on local government for the first five-year period the rule will be in effect.
There will be no cost of compliance for small businesses since the rule proposal
does not affect them. There is no cost comparison for small or large businesses
since they will not be affected by the rule proposal.
Dale Burnett, Executive Director, has determined that for each of the first
five years the rule as proposed is in effect, the public benefits anticipated
as a result of enforcing the rule as proposed will be that the current and
correct statute will be identified to the public. The title for the Executive
Director's will also be corrected. There are no economic costs to individuals
who are required to comply with the rule as proposed.
Comments on the proposal may be submitted to Frank M. Crull, General Counsel,
Structural Pest Control Board, P.O. Box 1927, Austin, TX 78767.
The amendment is proposed under the Texas Occupations Code, Chapter
1951, which provides the Structural Pest Control Board with the authority
to license and regulate the structural pest control industry.
No other statute, code or article is affected by this proposal.
§591.10.Administrative Penalties.
(a)
The Executive Director shall be responsible, after investigation
by the agency staff, for determining whether a violation of the Structural
Pest Control Act (The Act) or a rule or order adopted by the Board has occurred
which allows the assessment of an administrative penalty. If it is found a
violation has occurred, the Executive Director may issue a violation report
as described in the Act,
Occ. Code, Chapter 1951
[
(b)
The executive director shall base the recommended amount
of the proposed penalty on the factors provided by the Act,
Occ. Code,
Chapter 1951
[
(c)
Within the time limits stated and the manner described
in
Occ. Code, Chapter 1951
[
(d)
If the person charged with the violation accepts the determination
of the executive director, the executive director shall issue an order approving
the determination and ordering payment of the recommended penalty.
(e)
If the person charged requests a hearing or fails to respond
in a timely manner, the executive director shall set a hearing to be conducted
in the manner described in the Act,
Occ. Code, Chapter 1951
[
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on June 8, 2004.
TRD-200403743
Dale Burnett
Executive Director
Structural Pest Control Board
Earliest possible date of adoption: July 25, 2004
For further information, please call: (512) 305-8270
22 TAC §591.12
The Texas Structural Pest Control Board proposes an amendment
to 22 TAC §591.12 concerning settlements. The first portion of the proposal
will recognize that legal representatives can bind their clients to a settlement.
The second portion of the proposal removes authority from a state investigator
to propose informal settlements. This change is proposed because the practice
has shifted to the enforcement staff.
Dale Burnett, Executive Director, has determined that there will be no
fiscal implications as result of enforcing or administering the rule. There
is no estimated additional cost or estimated reduction in cost for state government.
There will be no estimated increase in revenue to state government for the
first five-year period the rule will be in effect. There will be no estimated
additional cost, estimated reduction in cost or estimated increase in revenue
on local government for the first five-year period the rule will be in effect.
There will be no cost of compliance for small businesses since the rule proposal
does not affect them. There is no cost comparison for small or large businesses
since they will not be affected by the rule proposal.
Dale Burnett, Executive Director, has determined that for each of the first
five years the rule as proposed is in effect, the public benefits anticipated
as a result of enforcing the rule as proposed will be that it will be clear
to the public and licensees that the enforcement staff will be responsible
for proposing informal settlements, not the investigators. The change also
makes clear that a legal representative can bind his client to a settlement
with the Board. There are no economic costs to individuals who are required
to comply with the rule as proposed.
Comments on the proposal may be submitted to Frank M. Crull, General Counsel,
Structural Pest Control Board, P.O. Box 1927, Austin, TX 78767.
The amendment is proposed under the Texas Occupations Code, Chapter
1951, which provides the Structural Pest Control Board with the authority
to license and regulate the structural pest control industry.
No other statute, code or article is affected by this proposal.
§591.12.Settlements.
(a)
It is Board policy to encourage resolution of complaints
against structural pest control licenses. This provision provides procedures
for the settlement of complaints.
(b)
At the request of the licensee or the Executive Director,
the Executive Director may designate a time and place for a settlement conference
of a complaint investigated by the Board. A licensee shall be notified in
writing of the time and place of the settlement conference and the alleged
violations. Licensees or their
legal
representatives attending
the conference shall be empowered to act on behalf of the licensee and bind
the licensee to any settlement.
(c)
Settlements may include any combination of sanctions available
to the Board. They may also include requiring extra training and education
and refunds not exceeding the original contracted amounts or services not
different from the original contracted services.
(d)
[
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on June 8, 2004.
TRD-200403744
Dale Burnett
Executive Director
Structural Pest Control Board
Earliest possible date of adoption: July 25, 2004
For further information, please call: (512) 305-8270
22 TAC §591.13
The Texas Structural Pest Control Board proposes an amendment
to 22 TAC §591.13 concerning public comment. The proposal is made to
change "shall" to "may" to reflect the permissive requirements of the Public
Meetings Act on allowing a member of the public to speak at a public meeting
of the Board.
Dale Burnett, Executive Director, has determined that there will be no
fiscal implications as result of enforcing or administering the rule. There
is no estimated additional cost or estimated reduction in cost for state government.
There will be no estimated increase in revenue to state government for the
first five-year period the rule will be in effect. There will be no estimated
additional cost, estimated reduction in cost or estimated increase in revenue
on local government for the first five-year period the rule will be in effect.
There will be no cost of compliance for small businesses since the rule proposal
does not affect them. There is no cost comparison for small or large businesses
since they will not be affected by the rule proposal.
Dale Burnett, Executive Director, has determined that for each of the first
five years the rule as proposed is in effect, the public benefits anticipated
as a result of enforcing the rule as proposed will be that the regulation
follows the law. There are no economic costs to individuals who are required
to comply with the rule as proposed.
Comments on the proposal may be submitted to Frank M. Crull, General Counsel,
Structural Pest Control Board, P.O. Box 1927, Austin, TX 78767.
The amendment is proposed under the Texas Occupations Code, Chapter
1951, which provides the Structural Pest Control Board with the authority
to license and regulate the structural pest control industry.
No other statute, code or article is affected by this proposal.
§591.13.Public Comment.
A person
may
[
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on June 8, 2004.
TRD-200403745
Dale Burnett
Executive Director
Structural Pest Control Board
Earliest possible date of adoption: July 25, 2004
For further information, please call: (512) 305-8270
before a hearing, assess an administrative penalty or after
a hearing in accordance with Texas Occupations Code Chapter 651, to reprimand,
revoke, suspend, or probate the suspension of a license, impose any combination
of the sanctions against a licensed funeral director or funeral establishment
if the licensee has violated Chapter 193 of the Code
];
Chapter 203.
LICENSING AND ENFORCEMENT--SPECIFIC SUBSTANTIVE RULES
unless
] extended pursuant to an exit interview
. The
[
, and the
] provisional licensure programs for funeral director and embalmer
may be served simultaneously. If a provisional licensee does not complete
a program in the prescribed time, the provisional licensee will be cancelled
and may be reinstated only upon petition to the commission after retaking
and passing the applicable examinations.
(f)
] A provisional embalmer shall
assist in the embalming of six autopsied remains during the course of the
provisional embalmer program. Autopsied cases completed while in an accredited
mortuary college may count toward the six required autopsy cases if the college
certifies to the commission that the cases were performed.
(g)
] Provisional licensees must
file with the commission a case report for each month of the provisional license
program by the 10th day of the next month. Case report submission post marked
after the 10th day of the month will not be accepted. The licensee will not
be given credit for those case reports. In any month in which the provisional
licensee does not perform a case, the provisional licensee must file a "notwithstanding"
report with the commission, and that month will not count toward the 12 required
months. If a provisional licensee files "notwithstanding" reports for two
consecutive months, the
licensee is required to restart the provisional
licensee program. Similarly, provisional licensees who fail to file a case
report within 90 days after receiving the provisional license shall submit
a new provisional license application and pay a new provisional license fee
[
commission may start the provisional licensee's program over
].
(h)
] It is the responsibility of
the sponsor of the provisional, the funeral director in charge of the establishment,
and the provisional licensee to schedule case work sufficient for reporting
in the provisional program. Penalties for failure to file case reports in
a timely manner may lie against the sponsor of the provisional, the funeral
director in charge of the establishment, and the provisional licensee. The
commission may start a provisional licensure program over if the provisional
licensee fails on two occasions to timely file a case report.
(i)
] Each case report shall be certified
by the licensee under whom the provisional licensee performed the work. The
supervising licensee and the provisional licensee both are subject to disciplinary
action
if
[
in
] the information submitted is not true
and accurate.
(j)
] Upon completion of a minimum
of 12 months and 60 required cases of the provisional license program, each
provisional licensee must appear before at least one member of the commission
for an oral exit interview in order to demonstrate proficiency related to
the duties of a funeral director and/or embalmer. Any person not recommended
for licensure must undergo further exit interviews and extensions until recommended
for licensure.
(k)
] Before a provisional licensee
is issued an embalmer's license, the provisional licensee must take and pass
the National Board Examination with at least a grade of 75% on both portions
of the test. Before a provisional licensee is issued a funeral director's
license, the provisional licensee must take and pass the State Board Examination
with at least a grade of 75%. Both tests are administered by the International
Conference of Funeral Service Examining Boards, Inc.
(l)
] Before a provisional licensee
is issued a regular license, a provisional licensee must take and pass the
Texas State Mortuary Law Exam with at least a grade of 75%. The test is administered
by the commission.
(m)
] If a provisional licensee leaves
the employment of a funeral director or embalmer, the funeral director or
embalmer must file an affidavit as described in Texas Occupations Code, Section
651.304(d) within fifteen (15) days of employment termination.
(n)
] A student enrolled in an accredited
mortuary college must have the college forward a letter of enrollment to the
commission prior to entering the provisional program.
should
] be retained by
the Instructor of the school or college according to section 651.407 Texas
Occupations Code. The funeral establishment or embalming establishment and
provisional licensee
shall
[
should
] retain the documents
for a minimum of two years [
or until the provisional becomes a regular
licensee
].
Chapter 205.
REGISTRATION AND ENFORCEMENT--SPECIFIC SUBSTANTIVE RULES
Chapter 205.
CEMETERIES AND CREMATORIES
Chapter 206.
GUARANTEED STUDENT LOANS
Chapter 209.
ETHICAL STANDARDS FOR PERSONS LICENSED BY THE COMMISSION
Part 14.
TEXAS OPTOMETRY BOARD
(3)
] Informal conferences shall
not be deemed to be meetings of the board and no formal record of the proceedings
at the conferences shall be made or maintained.
(4)
] Any proposed order shall be
presented to the board for its review. At the conclusion of its review, the
board shall approve, amend, or disapprove the proposed order. Should the board
approve the proposed order, the appropriate notation shall be made in the
minutes of the board and the proposed order shall be entered as an official
action of the board. Should the board amend the proposed order, the executive
director shall contact the respondent to seek concurrence. If the respondent
does not concur, the provisions of the next sentence shall apply. Should the
board disapprove the proposed order, the case shall be rescheduled for purposes
of reaching an agreed order or in the alternative forwarded to the State Office
of Administrative Hearings for formal action.
Chapter 279.
INTERPRETATIONS
(a)
] A prescription for contact
lenses is defined as a written order signed by the examining optometrist,
therapeutic optometrist or physician, or a written order signed by an optometrist,
therapeutic optometrist or physician authorized by the examining doctor to
issue the prescription. If the prescription is signed by a doctor other than
the examining optometrist, therapeutic optometrist or physician, the prescription
must contain:
(b)
] A contact lens prescription
must comply with the requirements of the Texas Optometry Act, Sections 351.005,
351.356, 351.357, 351.359 and 351.607, and the Contact Lens Prescription Act,
Sections 353.152, 353.153 and 353.158.
(c)
] A fully written contact lens
prescription must contain all information required to accurately dispense
the contact lens, including:
(d)
] The Contact Lens Prescription
Act requires the optometrist or therapeutic optometrist to release a prescription
upon request once the parameters of the prescription are determined. An exception
to this requirement exists if the optometrist or therapeutic optometrist determines
that because of a medical indication further monitoring is required, and the
optometrist or therapeutic optometrist gives the patient a verbal explanation
of the reason the prescription is not released and documents in the patient's
records a written explanation of the reason.
(e)
] An optometrist or therapeutic
optometrist may issue a prescription in the following manner:
(f)
] The Contact Lens Prescription
Act requires an optometrist or therapeutic optometrist to authorize, upon
request of the patient, a one time, two month extension of the contact lens
prescription. If the extension request also constitutes a request for an emergency
refill, the optometrist or therapeutic optometrist may telephone the prescription
extension to a person authorized to fill the prescription.
(g)
] The prescribing optometrist
or therapeutic optometrist has the authority to specify any and all parameters
of an optical prescription for the therapeutic and visual health and welfare
of a patient, but the prescription shall not contain restrictions limiting
the parameters to private labels not available to the optical industry as
a whole, unless the prescribing of a proprietary lens brand is medically indicated.
The specifications of the prescription may not be altered without the consent
of the prescribing doctor.
(h)
] The Contact Lens Prescription
Act (Act), prohibits an optometrist or therapeutic optometrist from charging
the patient a fee in addition to the examination fee and the fitting fee as
a condition for giving a contact lens prescription to the patient. An optometrist
or therapeutic optometrist may not refuse to release a prescription solely
because charges assigned or presented for payment to an insurance carrier,
health maintenance organization, managed care entity, or similar entity have
not been paid by that entity.
(i)
] An optometrist or therapeutic
optometrist may charge a fitting fee that includes fees for lenses required
to be used in the fitting process. The fitting process may include the initial
eye examination, an examination to determine the specifications of the contact
lenses, and follow-up examinations that are medically necessary. Unless medically
necessary, the optometrist or therapeutic optometrist may not require the
patient to purchase a quantity of lenses in excess of the lenses the optometrist
or therapeutic optometrist was required to purchase to complete the fitting
process.
Part 15.
TEXAS STATE BOARD OF PHARMACY
and
] are as follows:
$50
], which is to be paid to the Texas State Board of Pharmacy and includes
the processing of the Texas application.
$250
],
which is to be paid to the Texas State Board of Pharmacy.
$50
], which is to be paid to the Texas State Board of Pharmacy and includes
the processing of the Texas application.
(1)
]
Refunds for fees charged by NABP for the administration
of the NAPLEX and MPJE are in accordance with NABP policy. Rescheduling of
an examination appointment shall be in accordance with NABP policy.
(2)
$50 Texas examination processing fee is
available if written notification is received in the board office no later
than six weeks before the scheduled examination date.
]
(3)
$250 Texas reciprocity fee is available
if written notification is received in the board office no later than six
weeks before the scheduled examination date.
]
Chapter 291.
PHARMACIES
for dangerous
drugs
] carried out or signed by an advanced practice nurse or physician
assistant in accordance with Subtitle B, Chapter 157, Occupations Code, shall
bear:
and
] telephone number
, and if the prescription is for a controlled substance, the DEA number
of
the supervising practitioner;
Chapter 297.
PHARMACY TECHNICIANS
Employees.
]
Long-term exempt pharmacy technicians are pharmacy
[
Pharmacy
] technicians who, on September 1, 2001, had been
continuously employed as a pharmacy technician in this state for at least
10 years and who received an exemption from the board. [
may only use
the exemption at the pharmacy noted in the petition and may not transfer
the exemption to another pharmacy. If the pharmacy technician ceases employment
at the pharmacy or changes employment, the exemption is canceled
].
counties.
]
Rural county exempt pharmacy technicians are pharmacy
[
Pharmacy
] technicians working in counties with a population
of 50,000 or less
and meet the following requirements
.
Part 23.
TEXAS REAL ESTATE COMMISSION
Subchapter E. REQUIREMENTS FOR LICENSURE
4
];
Subchapter G. MANDATORY CONTINUING EDUCATION
Subchapter I. LICENSES
(b)
] The Texas Real Estate Commission
adopts by reference Renewal Application Forms SR 1-0 and BR 1-0, approved
by the commission in 2004. These forms are published by and available from
the Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188.
Texas Civil Statutes, Article 6573a, (the Act, §17)
].
If the commission develops a system
whereby licenses may be renewed electronically, a
] licensee [
also
] may renew an unexpired license by accessing the commission's Internet
web site, entering the required information on the renewal application form,
satisfying applicable education requirements and paying the appropriate fee
in accordance with the instructions provided at the site by the commission.
A real estate licensee may not receive MCE credit
for a license renewal unless the licensee attends all of the MCE course.
]
Credit will not be given for attendance of the same course more than once
during the term of the current license or during the two-year period preceding
the filing of an application for late renewal or return to active status.
Each licensee attending all sessions of a course shall sign the course completion
roster, MCE Form 8-
4
[
3
] and provide the information
required for each licensee on the form.
A real estate licensee may receive
partial credit for partial attendance at an MCE elective credit course if
the provider permits partial credit and the provider and student verify attendance
on the Individual MCE Partial Credit Request Form.
A false statement
to the commission concerning attendance at an MCE course will be deemed a
violation of the Act [
, §15(a)(2)
] and of this section.
0
], MCE
Credit Request for an
Out of State Course Credit
Request, with the commission.
(i)
] To request MCE
elective
credit for real estate related courses approved by the State Bar of
Texas for minimum continuing legal education participatory credit, a licensee
shall [
either
] file MCE Form 12-
2
[
1
],
Individual MCE Credit Request for State Bar Course [
or sign MCE Form
12A-0, Provider MCE Credit Request for State Bar Course, which may be filed
by the course provider with the commission.
]
(j)
] Real estate licensees may
receive MCE
elective
credit for core real estate courses or core
real estate inspection courses that have been approved by TREC or that are
accepted by TREC for satisfying educational requirements for obtaining or
renewing a license. Core real estate courses must be at least 30 classroom
hours in length to be accepted for MCE
elective
credit.
Texas Civil Statutes,
Article 6573a, (the Act)
],
§§1101.364 and 1101.505
[
§10
],
"denial of a license"
[
"declines or fails
to register or license an applicant"
] means to disapprove an applicant
for a real estate license for failure to comply with the requirement of the
Act , §
1101.354(2)
[
6(b)
] to satisfy the commission
as to the applicant's honesty, trustworthiness and integrity, or, if the applicant
seeks registration as an easement or right-of-way agent, to disapprove an
application for registration under §535.400 of this title (relating to
Registration of Easement or Right-of-Way Agents.
Texas Civil Statutes, Article 6573a
] and with the rules
of the Texas Real Estate Commission;
Subchapter J. FEES
Civil
Statutes, Article 6573a
] (the Act),
§1101.301
[
§7(f)
];
§7(f)
];
Subchapter L. TERMINATION OF SALESPERSON'S ASSOCIATION WITH SPONSORING BROKER
§7
], is not subject to MCE requirements as a condition of returning
to active status during the term of the license issued from the original application
or renewal application.
,
]
and satisfy mandatory continuing education (MCE) requirements specified in
Texas
Occupations Code, Chapter 1101
[
Civil Statutes, Article
6573a
], (the Act)
§1101.455 and the Rules of the Texas Real
Estate Commission
[
, §7A
].
all
]
the application for return to active status and appropriate fee have been
mailed to or delivered to the commission. [
A broker on inactive status
is not subject to the requirements of the Act, §12(c), regarding display
of license.
]
Subchapter M. NONRESIDENTS
Civil Statutes, Article 6573a
], (the Act) permits
Texas-licensed brokers to cooperate with and share earned commissions with
persons licensed as brokers in other states, but all negotiations physically
conducted within Texas must be handled by Texas licensees.
§14
]
of the Act, the word "state" refers to the states, territories, and possessions
of the United States and any foreign country or governmental subdivision thereof.
§14(a)
], if the person complies with the law of the foreign state
and practices there as a real estate broker.
Civil Statutes, Article 6573a
], (the Act),
Subchapter H
[
§14(b)
] and this section if the person:
§6(c)
], although the
designated person is not required to be a resident of Texas. Foreign corporations
and limited liability companies also must be permitted to engage in business
in this state to receive a Texas real estate broker license.
Subchapter N. SUSPENSION AND REVOCATION OF LICENSURE
Civil Statutes, Article 6573a
], (the Act), the commission shall investigate
the complaint. The commission, on its own motion, with reasonable cause, may
initiate an investigation of the actions and records of a licensee.
the Act
],
§1101.652(a)(2)
[
§15(a)(2)
], occurs if an applicant
for licensure for the applicant or a salesperson omits material information
or makes material misstatements, written or oral, in connection with the filing
of an application to obtain licensure. This does not include an unintentional
mistake of fact; however, a broker submitting an application as sponsor of
a proposed salesperson has an affirmative duty to ascertain that all information
called for in the application is given and is true, correct and complete,
whether the application is filled out by the broker or the prospective salesperson.
Civil Statutes, Article 6573a
].
the Real Estate License Act, (Act)
],
§1101.652(b)(22)
[
§15(a)(6)(N),
] does not prohibit
a licensee from soliciting a listing from the owner while the owner's property
is subject to an exclusive listing with another broker.
Civil Statutes, Article 6573a
] (the Act),
§1101.652(b)(23)
[
§15(a)(6)(P)
]. The commission shall consider language
as clear and conspicuous if it is in at least the same size of type or print
as the largest telephone number in the advertisement, or it otherwise clearly
and conspicuously identifies as a real estate broker or agent the person who
published it. The commission shall consider advertisements not to be in compliance
with this subsection if the required language is in print or type so small
that it cannot be easily read from the street or sidewalk. This subsection
does not apply to signs placed on real property listed for sale, rental or
lease with the broker who has placed the sign, provided the signs otherwise
comply with this section and the provisions of the Act regarding advertising.
§15(a)(6)(P)
] of the Act.
§15(a)(6)(P)
] of the
Act.
Subchapter O. HEARING ON SUSPENSION OR REVOCATION OF LICENSURE
Subchapter R. REAL ESTATE INSPECTORS
Civil Statutes, Article
6573a, §23
].
the
Real Estate License Act (the Act), §23
], or by these sections;
the Act
];
If the commission develops a system
whereby a person may electronically file an application for a license, a
]
person who has previously satisfied applicable education requirements and
obtained an evaluation from the commission also may apply for a license by
accessing the commission's Internet web site, entering the required information
on the application form and paying the appropriate fee in accordance with
the instructions provided at the site by the commission. An applicant for
an apprentice inspector license must provide the commission with the applicant's
photograph and signature prior to issuance of a license certificate. An applicant
for a real estate or professional inspector license must provide the commission
with the applicant's signature prior to issuance of a license certificate.
An applicant may provide the required item(s) prior to the submission of an
electronic application.
the Act, §10
] and §533.34 of this title (relating to Disapproval of an Application
for a License or Registration). For the purposes of this section, the term
"late renewal" means an application for a license by a person who held the
same type of license no more than two years prior to the filing of the application.
If an instructor
was approved prior to the effective date of this section, the approval of
the instructor expires May 1, 2001, and the instructor may apply for approval
at any time.
]
Civil Statutes, Article 6573a, §23, (the Act)
] and which will demonstrate
an awareness of its provisions relating to inspectors. Each real estate inspector
applicant must achieve a score of at least 70% on the examination. Each professional
inspector applicant must achieve a score of at least 80% on the examination.
the Act
] or this section, examinations shall be conducted as provided
by §535.61 of this title (relating to Examinations).
Civil Statutes, Article 6573a, §23, (the Act),
]
and who has been placed on inactive status by the commission for any of the
following reasons:
Civil Statutes, Article 6573a
(the Act), §23
], may renew the license by timely filing the prescribed
application for renewal, paying the appropriate fee to the commission and
satisfying applicable continuing education requirements as required by
Chapter 1102
[
the Act, §23(k)
], and by §535.218
of this title (relating to Continuing Education).
If the commission develops a system
whereby licenses may be renewed electronically, a
] licensee also may
renew an unexpired license by accessing the commission's Internet web site,
entering the required information on the renewal application form, satisfying
applicable education requirements and paying the appropriate fee in accordance
with the instructions provided at the site by the commission.
the Act, §15B(b)
].
the Act, §23(f)
].
Civil Statutes, Article 6573a, §23
], the
inspector should report the possible violation to the Texas Real Estate Commission.
Civil Statutes, Article 6573a,
(the Act), §23
] or a rule of the commission;
the Act, §15B(d)
]. The committee may recommend that
the commission enter a final order denying a license or that a probationary
license be issued in the manner contemplated by §535.94 of this title
(relating to Hearing on Application Disapproval; Probationary License).
the Act, §23(l)
], a license of
an inspector may be suspended or revoked by the commission if the inspector:
Act--The Real Estate License Act, Article 6573a, Texas Civil
Statutes
].
the Act, §23(1)(7)
] and §535.224
of this title (relating to Proceedings before the Committee).
Subchapter S. RESIDENTIAL RENTAL LOCATORS
Civil Statutes, Article 6573a
] (the Act),
§1101.002(6)
[
§24
]. For the purposes of this section, the term "advertisement"
includes, but is not limited to advertising in printed form, signs, or advertising
using radio, television or personal computers.
§15(a)(6)(P),
]
and §535.154 of this title (relating to Misleading Advertising).
§19
].
Subchapter T. EASEMENT OR RIGHT-OF-WAY AGENTS
Civil Statutes,
Article 6573a
], (the Act). The commission will not accept an application
which has been submitted without the correct filing fees or which has been
submitted in pencil.
A
[
If the commission develops a system
whereby a person may electronically file an application for registration,
a
] person also may apply for registration by accessing the commission's
Internet web site, entering the required information on the application form
and paying the appropriate fee in accordance with the instructions provided
at the site by the commission. If the person is an individual, the person
must provide the commission with the person's photograph and signature prior
to issuance of a registration certificate. The person may provide the photograph
and signature prior to the submission of an electronic application. If the
applicant does not complete the application process as required by this subsection,
the commission shall terminate the application.
§12(e)
]. If the registrant
maintains more than one place of business, the registrant shall display either
the certificate or a copy of the certificate in each place of business.
§10
], an applicant whose application for registration
has been disapproved is entitled to a hearing. The hearing on the application
will be conducted in accordance with the provisions of the Act,
§1101.364
[
§10
], and Chapter 533 of this title (relating to Practice
and Procedure).
§18
] and
by Chapter 533 of this title (relating to Practice and Procedure).
If the commission
develops a system whereby registrations may be renewed electronically, a
]
registrant also may renew an unexpired registration by accessing the commission's
Internet web site, entering the required information on the renewal application
form and paying the appropriate fee in accordance with the instructions provided
at the site by the commission. Failure to provide information requested by
the commission in connection with a renewal application is grounds for disciplinary
action under the Act,
§1101.653
[
§9A(c)(4)
].
A registrant who fails timely to pay a renewal fee must apply for and receive
a new registration in order to act as an easement or right-of-way agent.
6(d)
] of the Act. The commission may
not renew a registration issued to a business entity unless the entity has
designated an officer, manager or partner who meets the requirements of the
Act.
Chapter 537.
PROFESSIONAL AGREEMENTS AND STANDARD CONTRACTS
39-4
] is promulgated for use as an amendment
to promulgated forms of contracts. TREC Form No. 40-1 is promulgated for use
as an addendum to be added to promulgated forms of contracts when there is
a condition for third party financing. TREC Form No. 41-0 is promulgated for
use as an addendum to be added to promulgated forms of contracts when there
is an assumption of a loan. TREC Form No. 42-0 is promulgated for use as a
notice that buyer cannot obtain financing pursuant to the Third Party Financing
Condition Addendum.
39-4 ].
39-4
] approved by the Texas Real
Estate Commission in 2003. This document is published by and available from
the Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188.
Part 25.
STRUCTURAL PEST CONTROL BOARD
seven
]
days prior to the date.
common to other official state seals
].
Open Records Act
];
but such records shall not be taken from the Board office.
General Services Commission
] rules.
§10B
].
§10B(c)
].
§10B
], the executive
director shall give written notice of the report to the person charged.
§10B
]. The findings of fact, conclusions of law, and proposal for
decision of such hearing shall be issued to the Structural Pest Control Board
for its consideration.
Informal settlements may be proposed by state investigators
when authorized by the Executive Director. The settlements must follow the
guidelines set out in this section, except that a state investigator shall
not settle a complaint involving a misapplication.
] State investigators
shall propose retreatments and/or refunds only as terms of their informal
settlements. The retreatments and/or refunds shall not exceed the amounts
or be different from the treatments agreed upon in the original contract for
services.
shall
] be permitted to appear before
the Board during the public comment period regarding any issue under the jurisdiction
of the Board. The Chairman may recognize any person to speak and reserves
the right to limit the time allotted to the speaker.