28 TAC §§34.1101 - 34.1107
The Texas Department of Insurance proposes new Subchapter
K, §§34.1101-34.1107, concerning gifts, grants, and donations to
the State Fire Marshal’s Office. The proposal is necessary to implement
legislation enacted by the 78th Regular Session Legislature in House Bill
(HB) 2701 which amends Chapter 417, Government Code. HB 2701 requires the
development of public educational programs which disseminate pertinent information
about fire prevention and safety and allows the commissioner of insurance
to accept gifts, grants, and donations for this purpose.
Proposed §34.1101 provides the purpose of the subchapter which is
to establish the rules for acceptance of gifts, grants and donations for the
State Fire Marshal’s Office. Proposed §34.1102 states that the
commissioner is authorized by statute to accept gifts, grants and donations
for fire prevention and safety educational programs and materials. The definitions
for the subchapter are set forth in proposed §34.1103. Proposed §34.1104
states that gifts to the State Fire Marshal must be accepted by the commissioner
and that any goods donated to the State Fire Marshal become state property.
Proposed §34.1105 prohibits the solicitation of any gift, grant or donation
by the commissioner, officer or employee of the department, but makes clear
that the fire marshal, with the approval of the commissioner, may make an
application for a grant that would enhance the public welfare. Proposed §34.1106
sets forth the standards of conduct that govern the relationships between
the commissioner and the donor and between employees and donors, respectively.
The procedures for accepting gifts, grants and donations are described in
proposed §34.1107.
Paul Maldonado, State Fire Marshal, has determined that for each year of
the first five years the proposed sections are in effect, there will be no
fiscal impact to state government. There will be no fiscal implications for
local government as a result of enforcing or administering the new standards,
and no effect on the local economy or local employment.
Mr. Maldonado also has determined that for each year of the first five
years the proposed sections are in effect, the anticipated public benefit
from enforcing and administering the sections will be an increase in funds
or property to use toward developing educational programs as well as generating
and disseminating information to the public regarding fire prevention and
safety. The result in the increase in funds will enable the state fire marshal
to develop more education programs and information on fire prevention and
safety which will be provided to the public and enable the public to become
better educated about fire prevention and fire safety. Since provision of
gifts and donations is voluntary any costs to individuals to comply with the
proposed sections will be a part of the gift or donation and not a requirement
of compliance with the proposed rule. There is minimal, to no cost to comply
with the proposed rule, since it primarily pertains to procedures the department
will follow for the acceptance of gifts, grants, and donations. There are
some provisions that the donor must follow, but those would be considered
as part of the gift or donation and not a separate cost of compliance. As
these are voluntary actions, there is no difference in impact on a person
or entity qualifying as a small or micro-business under the Government Code §2006.001
compared to a large business.
To be considered, all comments on the proposal must be submitted in writing
no later than 5:00 p.m. on August 8, 2005, to Gene C. Jarmon, General Counsel
and Chief Clerk, Mail Code 113-2A, Texas Department of Insurance, P.O. Box
149104, Austin, Texas 78714-9104. An additional copy of the comments must
be submitted simultaneously to Paul Maldonado, State Fire Marshal, Mail Code
112-FM, Texas Department of Insurance, P.O. Box 149221, Austin, Texas 78714-9221.
A request for a public hearing should be submitted separately to the Office
of the Chief Clerk.
The new sections are proposed pursuant to the Government Code §417.005, §417.0051
and Insurance Code §36.001. Government Code §417.005 allows the
commissioner to adopt rules necessary to guide the fire marshal in the performance
of other duties for the commissioner. Government Code §417.0051 allows
the commissioner, through the fire marshal, to develop public education programs
about fire prevention and safety. Section 36.001 of the Insurance Code provides
that the Commissioner of Insurance may adopt any rules necessary and appropriate
to implement the powers and duties of the Texas Department of Insurance under
the Insurance Code and other laws of this state.
The following statute is affected by the proposed sections: Government
Code §417.0051
§34.1101.Purpose.
The purpose of this subchapter is to establish procedures for the acceptance
of gifts, grants, and donations made to the State Fire Marshal’s Office
and to create standards of conduct to govern the relationships between employees
of the department and donors or grantors.
§34.1102.General Authority to Accept Gifts, Grants, and Donations.
The commissioner, through the state fire marshal, is statutorily authorized
to accept gifts grants, and donations from any source to develop educational
programs and disseminate materials necessary to educate the public effectively
regarding methods of fire prevention and safety. It is the policy of the department
to accept only those donations and grants that advance the purposes of Government
Code §417.0051, Fire Prevention and Safety Education.
§34.1103.Definitions.
The following words and terms, when used in this subchapter, shall
have the following meanings, unless the context clearly indicates otherwise.
(1)
Commissioner--The Commissioner of Insurance.
(2)
Department--The Texas Department of Insurance.
(3)
Donation--Money or other assistance from any source other
than a grant.
(4)
Donation agreement--A written document executed by the
commissioner or his designee and the donor that identifies the name of the
donor, a description of the donation, the purpose of the donation, and outlines
any special conditions of the donation.
(5)
Donor--Individuals or organizations that offer to give
or give a donation to the department.
(6)
Employee--An individual employed by the department in a
full or part time capacity.
(7)
Gift--Money or other assistance from any source other than
a grant.
(8)
Grantor--Public or private entity or agency that awards
grants to the department.
(9)
Grant--Money or other assistance from a grantor, given
for a specific purpose.
§34.1104.Acceptance of Gifts, Grants, and Donations.
(a)
All gifts, grants and donations made to the state fire
marshal must be accepted by the commissioner on behalf of the state fire marshal.
No employee of the department can accept gifts, grants, or donations in their
individual capacity.
(b)
Donated goods received by the state fire marshal become
state property and will be treated as such.
§34.1105.Prohibition against Solicitation.
No gifts, grants, or donations shall be solicited by the commissioner
or any officer or employee of the department. This provision shall not be
interpreted to prevent submission by the fire marshal of an application for
a grant which would enhance the public welfare. Such submission shall be approved
by the fire marshal and the commissioner.
§34.1106.Standards of Conduct between Commissioner and Donors or Grantors.
Any person or entity seeking to contract with the department on a competitive
basis or otherwise shall disclose all previous donations and grants made to
the state fire marshal or other state agency within the preceding two years.
The disclosure shall include the nature and value of the donation or the grant
and the date the donation or grant was made. If the donation or grant is ongoing,
the last date that the donation or grant was available to the department shall
be used to determine the date of the donation or grant.
§34.1107.Procedures for Acceptance of Gifts, Grants, and Donations.
(a)
Donation agreement. The donor and the commissioner shall
execute a donation agreement that includes the following information:
(1)
a description of the donation, including a determination
of the value;
(2)
a statement by the donor attesting to its ownership rights
in the property, including intellectual property ownership rights;
(3)
the signature of the donor if the donor is an individual
or its official representative if the donor is a business organization;
(4)
the signature of the commissioner;
(5)
any conditions restricting the use of the donation;
(6)
the mailing address of the donor and principal place of
business if the donor is a business entity;
(7)
a statement identifying any official relationship between
the donor and the department; and
(8)
a statement advising the donor to seek legal and/or tax
advice from its own legal counsel.
(b)
Grants. All grant money and other assistance shall be received
after a written grant acceptance has been executed by the grantor, the fire
marshal, and the commissioner.
(c)
Deposited funds. The department shall deposit monetary
contributions from gifts, grants or donations given pursuant to Government
Code §417.0051, Fire Prevention and Safety Education, in accordance with
state law. The money contributed shall be used for purposes consistent with
Government Code §417.0051.
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 24, 2005.
TRD-200502608
Gene C. Jarmon
General Counsel and Chief Clerk
Texas Department of Insurance
Earliest possible date of adoption: August 7, 2005
For further information, please call: (512) 463-6327