Part 1.
TEXAS DEPARTMENT OF HOUSING AND COMMUNITY AFFAIRS
Chapter 1.
ADMINISTRATION
Subchapter A. GENERAL POLICIES AND PROCEDURES
10 TAC §1.9
The Texas Department of Housing and Community Affairs (the
Department) proposes an amendment to §1.9(f), concerning the qualified
contract request processing fee. This amendment is proposed to correct the
fee charged for a qualified contract request.
Mr. William Dally, Acting Executive Director, has determined that for the
first five-year period the section is in effect there will be no fiscal implications
for state or local government as a result of enforcing or administering the
rule.
Mr. Dally has also determined that for each year of the first five-years
the section is in effect the public benefit anticipated as a result of enforcing
the section will be to allow for more meaningful public input to the Department.
There will be no effect on small businesses. There is no anticipated economic
cost to persons who are required to comply with the rule as proposed.
Comments on the proposal may be submitted to Emily Price, Multifamily Housing
Specialist, Multifamily Finance Production Division, Texas Department of Housing
and Community Affairs, P.O. Box 13941, Austin, Texas 78711-3941, emily.price@tdhca.state.tx.us,
or by fax (512) 475-1895, within thirty days of this notice.
This amendment is proposed pursuant to the authority of the Texas
Government Code, Chapter 2306.
No other code, articles or statutes are affected by this section.
§1.9.Qualified Contract Policy.
(a) - (e)
(No change.)
(f)
Qualified Contract Request. An owner may file a Qualified
Contract Request (Request) anytime after approval that the owner is eligible
to submit a Request has been received in writing from the Department.
(1)
The following documentation that must be submitted with
the Request:
(A) - (N)
(No change.)
(O)
Non-refundable processing fee
in an amount equal to
the lesser
of $3,000.00
or one fourth of one percent of the QC
Price determined by the CPA
.
(P)
(No change.)
(2) - (3)
(No change.)
(g) - (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 March 13, 2006.
TRD-200601579
William Dally
Acting Executive Director
Texas Department of Housing and Community Affairs
Earliest possible date of adoption: April 23, 2006
For further information, please call: (512) 475-4595
Chapter 305.
PRACTICE AND PROCEDURES FOR HEARINGS AND DISCIPLINARY ACTIONS
The Texas Residential Construction Commission proposes amendments
to §§305.1, 305.2, 305.4, 305.5, 305.21 - 305.23, 305.26, 305.28,
305.30 - 305.32 and 305.40 of 10 TAC Chapter 305, regarding the procedures
for hearings and disciplinary actions. In addition, the commission intends
to repeal §305.24 and §305.25 upon the effective date of adoption
of these proposed amendments because the amended sections incorporate the
provisions currently contained in those two sections.
Generally the proposed amendments eliminate superfluous language and redundancies
and restate procedures to more clearly describe commission practices.
Specifically, the proposed amendments to §§305.1, 305.2, 305.4,
305.5, 305.26 and 305.40 eliminate redundant and superfluous language. The
proposed amendments to §305.21 state more clearly the process of registration
and renewal denial procedures. The proposed amendment to §305.22 eliminates
language regarding informal resolution procedures that is consolidated into §305.23
and §305.31 by amendments proposed herein.
Proposed amendments to §305.28 revise the referral of matters to the
State Office of Administrative Hearings (SOAH) to incorporate the proposed
changes to the informal notice of violations. Proposed amendments to §305.30
state the commission's practice with regard to selection of venue. Proposed
revisions to §305.31 allow the commission to show that service at the
last address provided to the commission in accordance with commission rules
is sufficient for providing notice of hearing. Proposed amendments to §305.32
allow SOAH to enter a default judgment if a respondent fails to appear after
notice of hearing.
Ms. Susan Durso, General Counsel for the commission, has determined that
for each year of the first five-year period that the proposed amended rules
are in effect there will be no increase in expenditures or revenue for state
government and no fiscal impact for state or local government as a result
of enforcing or administering the sections.
Ms. Durso has also determined that for the first five years the amended
rules are in effect the public will benefit from more clear and precise rules
that explain how to participate in the disciplinary actions and hearing procedures
of the commission. There will not be an effect on individuals, or large, small
or micro businesses. There is no anticipated economic cost to persons who
are required to comply with the proposed amendments.
Ms. Durso has also determined that for each year of the first five-year
period the proposed amended rules are in effect there should be no effect
on a local economy; therefore, no local employment impact statement is required
under the Administrative Procedure Act, §2001.022.
Comments on the proposed amendments may be submitted to Susan K. Durso,
General Counsel, Texas Residential Construction Commission, 311 E. 14th Street,
Suite 200, Austin, Texas 78701 or by fax to (512) 475-2453. Comments may also
be submitted electronically to susan.durso@trcc.state.tx.us. For comments
submitted electronically, please include "Amended Procedural Rules" in the
subject line. The deadline for submission of comments is thirty (30) days
from the date of publication of the proposed rules in the
Texas Register
. Comments should be organized in a manner consistent
with the organization of the rule under consideration.
Subchapter A. GENERAL PROVISIONS
10 TAC §§305.1, 305.2, 305.4, 305.5
The amendments are proposed pursuant to Property Code §408.001,
which provides general authority for the commission to adopt rules necessary
for the implementation of Title 16 of the Property Code, the commission's
enabling act and the Administrative Procedures Act, Texas Government Code
Chapter 2001; Property Code §416.008, regarding denial of a certificate
of registration; Property Code §430.008, regarding registration of third-party
warranty companies; Property Code Chapter 418, regarding the commission's
authority to undertake disciplinary actions; and Chapter 419, regarding the
commission's authority to impose administrative penalties.
No other statutes, articles or codes are affected by these proposed amendments.
§305.1.Purpose and Scope.
(a)
Purpose. The purpose of this chapter is to provide a system
of procedures for practice before the Texas Residential Construction Commission
that will promote just and efficient disposition of proceedings and public
participation in the decision-making process. The provisions of this chapter
shall be given a fair and impartial construction to attain these objectives.
(b)
Scope.
(1)
This chapter shall govern the initiation, conduct and determination
of proceedings required or permitted by law, including proceedings referred
to the State Office of Administrative Hearings (SOAH).
(2)
This chapter shall not be construed so as to enlarge, diminish,
modify, or otherwise alter the jurisdiction, powers or authority of the commission,
commission staff, or the substantive rights of any person.
(3)
This chapter shall control the practice and procedure of
all commission proceedings to include SOAH proceedings [
§305.2.Definitions.
The following words and terms, when used in this chapter, shall have
the following meanings, unless the context clearly indicates otherwise.
(1)
Act--Title 16, Property Code.
(2)
Administrative law judge (ALJ)--An individual appointed
to preside over administrative hearings pursuant to the APA.
(3)
Agency--The divisions, departments and employees of the
Texas Residential Construction Commission.
(4)
APA--The Administrative Procedure Act, Texas Government
Code, Chapter 2001 as amended.
(5)
Applicant--A person seeking a registration or certification
from the commission.
(6)
Attorney of record--A person licensed to practice law in
Texas who has provided the commission staff with written notice of representation
of a person.
(7)
Authorized representative--An attorney of record or any
other person who has been designated in writing by a person to represent that
person in a proceeding.
(8)
Business day--A day on which the commission is open to
conduct business.
(9)
Certificate of Registration--A document depicting a grant
of commission approval, registration or similar form of permission authorized
by law.
(10)
Commission--The Texas Residential Construction Commission.
(11)
Commissioner--One of the members of the commission appointed
pursuant to the Act.
(12)
Complaint--Pleading filed with the commission alleging
a violation of the Act or a commission rule or other matter over which the
commission has authority to take disciplinary action.
(13)
Contested case--A proceeding, including but not restricted
to the denial of registration or certification, in which the legal rights,
duties, or privileges of a party are to be determined by a state agency after
an opportunity for an administrative hearing.
(14)
Continuing violation--Any instance in which the person
alleged to have committed a violation attests that a violation has been remedied
and subsequent investigation reveals that the violation has not been remedied.
(15)
Days--Calendar days, not business days, unless otherwise
specified.
(16)
Documents--Applications, petitions, complaints, motions,
protests, replies, exceptions, answers, notices, or other written instruments
filed with the commission in a commission proceeding.
(17)
Executive Director--The executive officer of the agency
or the authorized designee of
that executive officer
[
(18)
Hearing--Any proceeding in which evidence is taken on
the merits of the matters at issue, not including a pre-hearing conference.
[
(19)
[
(20)
[
[
(21)
[
(22)
[
(23)
[
(24)
[
(25)
[
(26)
[
(27)
[
(28)
[
(29)
[
(30)
[
(31)
[
(32)
[
[
[
(33)
[
(34)
[
§305.4.Agreement to be in Writing.
No stipulation or agreement between the parties, with regard to any
matter involved in any commission proceeding, shall be enforced unless it
shall have been reduced to writing and signed by the parties or their authorized
representatives, or unless it shall have been dictated into the record by
them during the course of a SOAH hearing or a deposition, or incorporated
into an order bearing their written approval. [
§305.5.Appearances Personally or by Representative.
(a)
An individual may appear on his or her own behalf or by
an authorized representative. [
(b)
A person may appear and be represented by any authorized
representative.
(c)
Any individual who is not a licensed member of the State
Bar of Texas and who is appearing as the authorized representative of a person
must produce a written statement executed by the individual represented that
acknowledges the representative's authority to appear on behalf of the individual
and states any limitations on the extent of the authority to act on behalf
of the individual represented. The original or a notarized copy of the authorization
must be provided to the commission at least three days prior to the appearance
of the authorized representative in a proceeding or SOAH hearing unless waived
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 March 10, 2006.
TRD-200601545
Susan K. Durso
General Counsel
Texas Residential Construction Commission
Earliest possible date of adoption: April 23, 2006
For further information, please call: (512) 463-2886
10 TAC §§305.21 - 305.23, 305.26, 305.28
The amendments are proposed pursuant to Property Code §408.001,
which provides general authority for the commission to adopt rules necessary
for the implementation of Title 16 of the Property Code, the commission's
enabling act and the Administrative Procedures Act, Texas Government Code
Chapter 2001; Property Code §416.008, regarding denial of a certificate
of registration; Property Code §430.008, regarding registration of third-party
warranty companies; Property Code Chapter 418, regarding the commission's
authority to undertake disciplinary actions; and Chapter 419, regarding the
commission's authority to impose administrative penalties.
No other statutes, articles or codes are affected by these proposed amendments.
§305.21.Commission Actions.
(a)
Pursuant to §418.002 and §419.001 of the Act,
the commission, upon finding that a person has committed a prohibited act
under the Act or commission rule, shall enter an order imposing one or more
of the following actions:
[
(1)
[
(2)
[
(3)
[
(4)
[
(b)
The commission may stay enforcement of any order and place
the person on probation. The commission shall retain the right to vacate the
probationary stay and enforce the original order for noncompliance with the
terms of the probation or to impose any other disciplinary action as provided
in subsection (a) of this section in addition to or instead of enforcing the
original order.
(c)
The time period of an order shall be extended for any period
of time in which a person subject to an order subsequently resides or does
business outside the State of Texas or for any period during which the person's
registration or certification is subsequently cancelled
or expires
for
nonpayment of registration or certification fees.
(d)
Pursuant to §416.008 of
the Act and 10 TAC Chapter 303, Subchapter A, the commission, upon finding
that an applicant for registration as builder is unqualified, shall deny the
applicant's original or renewal application.
(e)
Pursuant to §430.008 of
the Act and 10 TAC Chapter 303, Subchapter D, the commission, upon finding
that an applicant for registration as a third-party warranty company is unqualified,
shall deny the applicant's original or renewal application.
§305.22.Administrative Penalties.
(a)
Imposition of a penalty. In a contested case involving
disciplinary action, the commission may, as part of the commission's order,
impose an administrative penalty against a registrant who commits a violation
or continuing violation.
(b)
Amount of penalty.
(1)
Each day a violation occurs is a separate violation for
which a penalty can be levied, regardless of the status of any administrative
procedures that are initiated under this subsection.
(2)
The penalty for each separate violation may be in an amount
not to exceed $5,000.00.
(3)
The amount of the penalty shall be based on:
(A)
the seriousness of the violation, including the nature,
circumstances, extent and gravity of any prohibited acts;
(B)
the history of previous violations;
(C)
the amount necessary to deter future violations;
(D)
efforts to correct the violation; and
(E)
any other matter that justice may require, including, but
not limited to, the respondent's timely compliance with requests for information,
completeness of responses and the manner in which the respondent has cooperated
with the commission during the investigation of the alleged violation.
[
[
§305.23. Informal Notice of Violation.
(a)
The Executive Director shall refer a person who is
believed to have committed a violation of Chapter 418 of the Act or commission
rules to SOAH only after the commission has informed the person of the violation
in writing and provided the person an opportunity to cure the violation.
[
(b)
If the commission becomes aware of a person acting
as a builder who is not registered with the commission, the commission will
inform the person of the registration requirement in writing and provide the
person with a reasonable opportunity to register. If the person fails to timely
register, the commission, on relation of the Attorney General at the request
of the commission, may also bring an action in district court to enjoin the
person from engaging in or continuing a violation of the Act or commission
rules or doing an act that furthers a violation of the Act or commission rules
. In the action, the court may enter an order awarding a preliminary or final
injunction.
[
[
[
[
[
[
[
[
[
[
§305.26.Modification or Termination of [
(a)
Unless the commission order specifies that the order shall
or will be modified or terminated upon the fulfillment of certain conditions
or the occurrence of certain events, the decision to modify or terminate a
commission order shall be a matter for the exercise of sound discretion by
the commission.
(b)
Modification or termination requests shall not be contested
matters, but instead shall be matters to be ruled upon through the exercise
of sound discretion by the commission.
(c)
If a commission order sets out certain conditions or events
for granting modification or termination of an order, the respondent shall
have the burden of establishing that such conditions or events have taken
place or been met.
(d)
If, by the terms of the order, no specific conditions or
events trigger the requirement that the request be granted, the respondent
has the burden of proof of demonstrating that one or more of the following
factors should be considered for purposes of analyzing the merits of the request
and exercising sound discretion:
(1)
whether there has been a significant change in circumstances
which indicates that it is in the best interest of the public and the registrant
to modify or terminate the order;
(2)
whether there has been an unanticipated, unique or undue
hardship on the respondent as a result of the commission order which goes
beyond the natural adverse ramifications of the disciplinary action (i.e.
,
impossibility of requirement, geographical problems). Economic hardships
are not considered unanticipated, unique or undue hardships;
(3)
whether the respondent has engaged in special activities
which are particularly commendable or so meritorious as to make modification
or termination appropriate; or
(4)
whether the respondent has fulfilled the requirements of
the commission's order in a timely manner and cooperated with the commission
and commission staff during the period of probation or restriction.
(e)
Unless the terms of the commission order specify otherwise,
requests for modification or termination shall be in writing and filed with
the agency's General Counsel.
(f)
Modification or termination requests may be made only once
a year from the date the order was signed or from a prior request for modification
or termination unless a commission order otherwise specifies, or upon an assertion
in writing under oath by a person subject to a commission order indicating
that a circumstance exists as described in subsection (d)(2) of this section.
Upon receipt of the request, the agency's General Counsel shall determine
whether such a request is valid and meets the requirements of subsection (d)(2)
of this section. A finding by the General Counsel does not equate to such
a finding by the commission.
§305.28.Referral to the State Office of Administrative Hearings (SOAH).
If a denied builder or third-party warranty company applicant
requests a hearing, or if the Executive Director believes a person has committed
a violation of Chapter 418 of the Act or commission rules, the Executive Director
shall refer the matter to SOAH as set forth in this chapter.
[
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 March 10, 2006.
TRD-200601546
Susan K. Durso
General Counsel
Texas Residential Construction Commission
Earliest possible date of adoption: April 23, 2006
For further information, please call: (512) 463-2886
Part 7.
TEXAS RESIDENTIAL CONSTRUCTION COMMISSION
unless preempted
by statute or SOAH rules
].
the
Executive Director
].
(19)
Informal resolution process--Any
proceeding involving matters before the commission prior to the filing of
a pleading at SOAH].
(20)
] Party--The commission and
each person named or admitted as a party in a contested proceeding before
the commission or SOAH.
(21)
] Person--Any individual,
partnership, corporation, association, governmental subdivision, or public,
private organization, or other entity however organized.
(22)
Petition--Pleading filed
at SOAH by the commission alleging the reasons for the denial of a certificate
of registration or certification.]
(23)
] Pleading--A written document
submitted by a party or person seeking to participate as a party, which requests
procedural or substantive relief, makes claims, alleges facts, makes legal
arguments, or otherwise addresses matters involved in a commission proceeding.
(24)
] Prehearing Conference--Any
conference or meeting of the parties, prior to the hearing on the merits,
on the record and presided over by a presiding officer.
(25)
] Presiding officer--The commission,
any commissioner, or administrative law judge presiding over a proceeding.
(26)
] Probationer--A registrant
who is under a commission order of suspension.
(27)
] Proceeding--Any hearing,
[
investigation, inquiry or other fact-finding or decision-making procedure,
] including the denial of relief or the dismissal of a complaint, conducted
by the commission or SOAH.
(28)
] Registrant--Any person to
whom the agency has issued a certificate of registration, certification, approval
or similar form of permission authorized by law.
(29)
] Registration--The agency
process relating to the granting, denial, renewal, revocation, cancellation,
suspension, limitation, reinstatement or re-issuance of a certificate of registration.
(30)
] Respondent--A person under
the commission's jurisdiction against whom any complaint or appeal has been
filed
or
[
,
] who is under formal investigation by the
commission [
who is the recipient of a notice of violation
].
(31)
] Rule--Any agency statement
of general applicability that has been formally adopted in accordance with
the APA that implements, interprets, or prescribes law or policy, or describes
the procedures or practice requirements of this commission. The term includes
the amendment or repeal of a prior section but does not include statements
concerning only the internal management or organization of any agency and
not affecting private rights or procedures.
(32)
] SOAH--The State Office of
Administrative Hearings.
(33)
] SOAH hearing--A public adjudication
proceeding at SOAH.
(34)
]SOAH rules--1 Texas Administrative
Code §§155.1 - 155.59.
(35)
Texas Public Information
Act--Texas Government Code, Chapter 552.]
(36)
Texas Register--A weekly
publication issued by the Texas Secretary of State's office.]
(37)
] Violation--Any activity
or conduct prohibited by the Texas Residential Construction Commission Act,
commission rule or commission order.
(38)
]Witness--Any person offering
testimony or evidence at a commission or SOAH proceeding.
This subsection does not
limit a party's ability to waive, modify or stipulate any right or privilege
afforded by these sections, unless precluded by law.
]
This right may be waived.
]
or SOAH
].
Subchapter B. DISCIPLINARY PROCEEDINGS
(1)
deny the person's registration
or certification application;]
(2)
] administer a formal or informal
reprimand;
(3)
] revoke or suspend a person's
certificate of registration or certification;
(4)
] assess an administrative penalty
against the person; [
and/
]or
(5)
] initiate an action to enjoin
a person from further action in violation of the Act or commission rule.
(4)
Payment of penalty. Within
30 days after the date the person receives the notice set forth in §305.23
of this subchapter, the person may accept the determination and recommended
penalty through a written statement sent to the Executive Director. If this
option is selected, the person shall submit a written statement to the commission.
The commission, by written order, shall approve the determination and impose
the recommended penalty. Payment of an administrative penalty shall be made
in accordance with the commission order.]
(5)
If a person chooses to request
an informal settlement conference or hearing rather than accept the recommended
administrative penalty, then the person shall follow procedures set for in §305.24
or §305.25 of this subchapter.]
If the Executive Director alleges that a person has violated the Act or commission
rule or order, the Executive Director may recommend commission action and
issue a notice of violation.
]
The notice of violation shall provide the person with
written notice of the opportunity to attend and participate in an informal
resolution process or an administrative hearing before SOAH. The notice shall
be delivered to the applicant or registrant by certified mail, return receipt
requested, overnight or express mail, or registered mail.
]
(c)
The notice shall include:]
(1)
the basis for denial or ineligibility or a
description of the alleged violations of the Act or commission rule:]
(2)
a listing of the applicable provisions of the
Act or commission rule;]
(3)
a summary of the alleged facts;]
(4)
a copy of any exhibit upon which the denial
or alleged violation is based;]
(5)
the recommended penalty, including the amount
of any monetary penalty recommended;]
(6)
methods to respond to notice;]
(7)
options for resolving the matter informally;
and]
(8)
a statement that failure to respond to the
notice will result in a referral of the matter to SOAH for hearing.]
Agreed ] Orders.
If a respondent requests a hearing or if a respondent fails to respond to
a notice of violation, the Executive Director shall refer the matter to SOAH
as set forth in §305.30 of this chapter.
]
Subchapter C. PROCEEDINGS AT SOAH