Part 7. TEXAS RESIDENTIAL CONSTRUCTION COMMISSION
The Texas Residential Construction Commission (commission) proposes new rule 10 Texas Administrative Code §300.11 (10 TAC §300.11) regarding the meetings of the commission. The proposed new rule will give the public a greater understanding of how an open meeting is conducted and the role that a member of the public may play in the proceedings.
Ms. Susan Durso, General Counsel for the commission, has determined that for each year of the first five year period that the proposed new rule is in effect there will be no increase in expenditures or revenue for state government and no fiscal impact for local government as a result of enforcing or administering the section.
Ms. Durso has also determined that for the first five years the proposed new rule is in effect the public will benefit from a clearer understanding of how an open meeting is conducted and how to address the commission in an open meeting. There will be no effect on individuals, or large, small or micro businesses as a result of the proposed new rule.
Ms. Durso has also determined that for each year of the first five-year period the proposed new rule is 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 new rule may be submitted to Susan K. Durso, General Counsel, Texas Residential Construction Commission, 311 E. 14th Street, Austin, Texas 78701 or by fax to (512) 475-2453. Comments may also be submitted electronically to comments@trcc.state.tx.us. For comments submitted electronically, please include "Meetings of the Commission" in the subject line. The deadline for submission of comments is twenty (20) days from the date of publication of the proposed new rule in the Texas Register. Comments should be organized in a manner consistent with the organization of the rule under consideration.
The new rule is proposed pursuant to Property Code, §406 relating to the Commission, and §408.001 which provides general authority for the commission to adopt rules necessary for the implementation of and Title 5, Government Code chapter 551 regarding open meetings.
No other statute, article or code is affected by the proposal.
§300.11.Meetings of the Commission.
(a) The commission shall meet at times and places to be determined either by the chair or the presiding member of the commission.
(b) Meetings of the commission are open to the public unless such meetings are conducted in executive session pursuant to state law.
(c) The chair of the commission shall preside over any proceeding or meeting of the commission, unless a member of the commission is designated by the chair to preside.
(d) Notice of all commission meetings shall be provided in accordance with the Open Meetings Act, Texas Government Code, Chapter 551, as amended, and the Administrative Procedure Act.
(e) A person who wants to testify before the commission about any subject under the commission's jurisdiction shall fill out a Public Comment form prior to the start of the meeting and submit the form to the chair.
(f) The chair will recognize requests to address the commission during the "public comment" portion of a meeting. Public comments will be limited to individuals present in the meeting. No comments will be taken by telephone, internet, video-conferencing or other means of transmission or recording.
(g) The chair may impose a time limit for those wishing to address or make a presentation to the commission. The allotted period for a person addressing the commission may only be extended by commission vote and may not be extended by another person delegating, ceding, passing or otherwise granting allotted comment time in lieu of addressing the commission.
(h) The chair of the meeting has sole discretion to determine the procedural conduct of a commission meeting.
(i) Subsections (e), (f) and (g) do not apply to subcommittee meetings.
(j) Filing deadlines for documents and other materials addressed to the commissioners.
(1) Except as provided in paragraph (2) of this subsection, all documents and other materials addressed to the commissioners relating to any proceeding that has been placed on the agenda of an open meeting shall be filed with the Executive Director or General Counsel no later than five days prior to the open meeting at which the proceeding will be considered provided that no party is prejudiced by the timing of the filing of the documents. Documents that are not filed before the deadline and do not meet one of the exceptions in paragraph (2) of this subsection, will not be considered timely filed, and may not be reviewed by the commissioners in their open meeting.
(2) The deadline established in paragraph (1) of this subsection does not apply if:
(A) The documents or other materials have been specifically requested by one of the commissioners;
(B) The document or other material relates to a matter for which the commission has set a different specific deadline for filing a response; or
(C) Good cause for the late filing exists. Good cause must clearly appear from specific facts shown by written pleading that compliance with the deadline was not reasonably possible and that failure to meet the deadline was not the result of the negligence of the party. The finding of good cause lies within the discretion of the commission.
(3) Documents or other materials filed under this subsection may be delivered by electronic mail, first class mail, hand-delivery, or by overnight courier delivery.
(4) The person submitting the information in hard copy must provide 16 copies of the materials for distribution to the commissioners and staff. Documents or materials filed under this subsection will be distributed to the commissioners for their consideration unless the requisite number of documents have not been provided.
(5) Written materials filed under this subsection will not be read aloud, and audio or video materials will not be played at the commission meeting, unless the chair otherwise directs at the meeting.
(6) No filing fee is required to file any document or other material with the commission under this subsection.
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 August 13, 2007.
TRD-200703546
Susan K. Durso
General Counsel
Texas Residential Construction Commission
Earliest possible date of adoption: September 23, 2007
For further information, please call: (512) 463-2886
Subchapter A. REGISTRATION OF BUILDERS
10 TAC §§303.1, 303.5, 303.9, 303.13, 303.19
The Texas Residential Construction Commission (the "commission") proposes amendments to §§303.1, 303.5, 303.9, 303.13, and 303.19, relating to the registration of builders in the State of Texas as provided for in Title 16, Property Code. The amendments are proposed to incorporate recent legislative amendments to the agency statute into the rules. In addition, the amendments are proposed as part of an agency rule review plan pursuant to Government Code §2001.39.
Section 303.1, relating to the registration process, expands the information needed on a application due to the amended definition of a builder. Section 303.5, relating to registration of builders, expands builder reporting requirements and adds subsidiaries to the information which must be reported on an application. Section 303.9, relating to eligibility requirements, requires an alien registration applicant to file a copy of a work visa; requires business entities to report judgments, liens and payment plans in default; and requires a change of agent to be reported with in 30 days of disqualification of a registered agent. Section 303.13, relating to a designated address, permits a registrant to use a post office box for receipt of mail only. Section 303.19, relating to renewal, requires builders to completely and truthfully disclose criminal history, financial information, and ownership information; requires builders to renew online if the builder registered 25 or more home in the preceding year; and provides for waivers.
Susan K. Durso, General Counsel, has determined that for each year of the first five-year period the proposed amendments are in effect there will be no fiscal implications for state or local governments as a result of enforcing or administering the proposed amendments.
Ms. Durso has also determined that for each year of the first five-year period the proposed amendments are in effect the public will benefit from the enhanced registration requirements and clarity of the procedures to regulate registered builders.
Ms. Durso has also determined that for each year of the first five-year period the proposed amendments are in effect there will be no significant impact on individuals or large, small and micro-businesses because of the adoption of the proposed amendments.
Ms. Durso has also determined that for each year of the first five-year period the proposed amendments are in effect there should be no effect on a local economy; therefore, no local employment impact statement is required under Administrative Procedure Act §2001.022.
Interested persons may submit written comments (12 copies) on the proposed amendments to Susan K. Durso, General Counsel, Texas Residential Construction Commission, P.O. Box 13509, Austin, Texas 78711. The deadline for submission of comments is thirty (30) days from the date of publication of the proposed sections in the Texas Register. Comments received after that date will not be considered. Comments should be organized in a manner consistent with the organization of the proposed amendments. As part of the rule review, the public may include comments on whether the rule is still necessary. Comments may be submitted electronically to comments@trcc.state.tx.us. For comments submitted electronically, please include "Registration of Builders" in the subject line. Comments submitted electronically to another electronic address or that do not include "Registration of Builders" in the subject line may not be considered.
The amendments are proposed pursuant to Chapter 416, Property Code, which provides for the registration of builders and, generally, pursuant to Property Code §408.001, which provides authority for the commission to adopt rules necessary for the implementation of Title 16, Property Code and Government Code §2001.39, which requires agencies to periodically review their rules.
The statutory provisions affected by these proposed amendments are those set forth in Property Code, Chapters 408 and 416.
No other statutes, articles, or codes are affected by the proposed amendments.
§303.1.Registration Process.
(a)
In order to conduct business as a builder
in the state of Texas, all
[
All
] persons must register with the commission
before acting as a builder
by submitting
a Builder/Remodeler Registration Form[
, in order to conduct business
as a builder in the state of Texas
]. A person must submit a
completed registration form and filing fee for issuance of a certificate
of registration in the name of each entity under which the applicant
intends to operate as a builder in this state. The commission shall
issue a certificate of registration to an applicant who meets the
eligibility requirements for builder registration within fifteen (15)
days of receipt of the completed registration and required fee.
(b) A person who submits a registration form as a new
builder must also submit a Builder/Remodeler Affidavit form attesting
to whether or not [
that
] the person has operated as a builder
in the State of Texas since March 31, 2004.
A person who submits
a registration form on or after September 1, 2007, must also submit
a Builder/Remodeler Affidavit form attesting to whether or not the
person has operated as a builder prior to applying for a certificate
of registration.
(c) If a person submits a registration form as a new builder
,
and [
has
]operated as a builder [
after
March 31, 2004
] without proper registration
,
the
commission may undertake one or more of the following actions as it
determines is appropriate:
(1) require the payment of a late fee in addition to the registration fee;
(2) undertake a disciplinary action and impose an administrative penalty;
(3) deny the application; or
(4)
institute proceedings seeking injunctive relief
or a cease and desist order
[
refer the matter to the Office
of the Attorney General
].
(d) If an incomplete application is submitted, the
commission will provide the applicant an opportunity to submit complete
information.
If the applicant fails
[
Failure
]
to submit a completed application within fifteen (15) days of the
date of notice of a deficiency
,
[
in
] the application
will
be denied and all fees paid will be forfeited
[
result
in the administrative withdrawal of the application
].
(e) A denial under this section is final within 30 days unless the applicant files a request for a hearing before the expiration of the 30th day.
§303.5.Registration of Builders .
(a) A builder must identify on the application the
legal
name and form
[
type
] of business [
form
]
under which the applicant operates
,
[
and
] any
assumed names [
or names
] under which it is doing business
(dba)
, and the physical address of the primary office location
for each entity
.
(b)
If the builder has registered [
any
]
assumed names
or other business entities
with the Secretary
of State's office, the builder must also submit
documentation
verifying each name registered with Secretary of State and
a
copy of the Certificate of Assumed Business Name [
for each assumed
name registered with the Secretary of State
].
(c)
[
(b)
] The applicant must
identify
and provide ownership information on
any affiliates
and subsidiaries
:
(1) that have applied previously for registration with
the commission; [
or
]
(2) that have had an application submitted to the commission
[
administratively
] withdrawn;
denied, revoked,
or
;
(3) that have allowed a certificate of registration with the commission to expire for non-payment of renewal fees.
[
(4)
An affiliate is an
individual or entity that directly or indirectly through one or more
intermediaries controls, is controlled by or is under common control
with the applicant.]
(d)
[
(c)
] The application for
registration shall contain a request for information from the applicant
that is sufficient for the commission to conduct a
financial
and
criminal background check to determine the applicant's eligibility
for registration under the Act.
(e)
[
(d)
] The applicant must
disclose on the application for registration:
(1) whether the applicant has entered a plea of guilty, including accepting deferred adjudication, or nolo contendere (no contest) to any felony charge or to any misdemeanor charge when the charge was for a crime involving moral turpitude; or
(2) whether the applicant has been convicted of any felony charge or of a misdemeanor charge for a crime involving moral turpitude and that the time for appeal of the conviction has elapsed or that the conviction was affirmed on appeal.
(f)
[
(e)
] In reviewing an application
to determine if an applicant is eligible for registration under this
subchapter, the commission shall consider, among other things, whether
the applicant has a criminal history and if so:
(1) the nature and seriousness of any crimes to which the applicant has pled guilty or pled no contest, or for which the applicant has a prior conviction or convictions, including whether such a crime involves moral turpitude;
(2) the extent to which acting as a registered builder might offer the applicant an opportunity to engage in further criminal activity of a same or similar nature as that for which the applicant has a prior conviction;
(3) the extent and nature of the applicant's past criminal activity;
(4) the age of the applicant when any criminal activity discovered occurred;
(5) the remoteness in time between the submission of the application and the date of the applicant's last criminal conviction;
(6) the applicant's overall work history in relation to the dates of any criminal convictions;
(7) evidence of the applicant's successful rehabilitation efforts while incarcerated or after release, including but not limited to, restitution to the victim, completion of probationary requirements and completion of community service; and
(8) other evidence of the applicant's eligibility to serve as a registered builder, as requested by the commission.
(g)
[
(f)
] The commission will
conduct a criminal background check of each designated agent and may
conduct a criminal background check on any other person responsible
for the registration if the commission determines it necessary to
further the purposes of the Act.
(h)
[
(g)
] Any information obtained
from an applicant as a result of the criminal background check that
is not a public record at the time the commission obtains the information
is deemed confidential. The commission may not release or otherwise
disclose the confidential information except pursuant to a court order,
subpoena or with the written consent of the applicant.
(i)
[
(h)
] For purposes of this
section, an applicant who has received a deferred adjudication for
any felony charge or for any misdemeanor charge for a crime involving
moral turpitude shall disclose that charge on the application for
registration, regardless of whether the applicant has completed the
conditions of the order of deferred adjudication.
(j)
[
(i)
] An individual must
respond completely and truthfully regarding criminal history
and
financial
information
, and disclosure of ownership information
on all business entities registered with the commission
. Failure
to respond completely and truthfully will be considered evidence that
the applicant is not honest and trustworthy and does not have integrity,
and may result in denial of the application.
(k)
[
(j)
] An applicant must
respond timely to any commission request for [
further
]
information in reviewing the completed application in order to complete
the application process.
(l)
[
(k)
] Failure to respond
truthfully and completely to requests for information to process a
completed application may result in the denial of the application.
§303.9.Eligibility Requirements.
(a) At the time the application for registration is filed with the commission:
(1) individual applicants must be at least 18 years of age and a citizen of the United States or a lawfully admitted alien on a temporary visa that permits the holder to work in the United States and must demonstrate to the satisfaction of the commission that the applicant is honest, trustworthy and has integrity.
(2) individuals who apply as the designated agents of a corporation, limited liability company, partnership, limited partnership, limited liability partnership or other entity must be at least 18 years age and citizen of the United States or a lawfully admitted alien on a temporary visa that permits the holder to work in the United States and must demonstrate to the satisfaction of the commission that the individual is honest, trustworthy and has integrity.
(3) a corporation, limited liability company, partnership,
limited partnership, limited liability partnership or other entity
must
file documentation verifying
[
demonstrate
]
that it is properly registered and in good standing with the Secretary
of State and must demonstrate to the satisfaction of the commission
that the entity has acted honestly, with trustworthiness and with
integrity in its business dealings.
(b) The commission may consider a registered builder's complaint history, history of homeowner-filed requests for participation in the SIRP, compliance with state and federal law, compliance with the commission rules and requests for information, history of unsatisfied judgments and unpaid arbitration awards, history of bankruptcies, compliance history with the Secretary of State regulations and payment of taxes, and history of use of corporate and partnership structures as a means to avoid liability , and outstanding judgments, liens and payment plans in default in evaluating whether an applicant is honest, trustworthy and has integrity.
(c) If the individual applicant is a lawfully admitted alien on a temporary visa that permits the holder to work in the United States, the applicant must also submit a copy of the work visa.
(d) Throughout the period of active registration, an agent must remain eligible to represent the company. Within 30 days of any change to the material information provided on the original application for builder registration, the agent must submit an information update using a commission prescribed form and pay any fees required. If the agent becomes ineligible, an application to replace the designated agent with an eligible agent must be provided. Failure to comply with this rule may result in the revocation or suspension of a certificate of registration.
§303.13.Designated Address.
(a) Each builder shall designate in the application for registration a fixed physical address located in this state to serve as its principal place of business.
(b) Each designated agent shall provide in the application for registration a fixed physical address in Texas.
(c) The commission will use the fixed physical address
provided as the mailing address for the registered builder
unless the builder elects
[
in order to verify that the address
is valid. If the postmaster will not deliver to a physical address
for the builder or if delivery to the physical address is not advisable
because of theft, and the builder is required to maintain a Post Office
Box, the builder may submit a post office box waiver form in order
]
to utilize a Post Office Box address in lieu of a physical address
for the receipt of mail only. A designated agent may submit a Post
Office Box as a mailing address in addition to the physical address
provided pursuant to subsection (b) of this section.
(d) If the builder moves from the physical address
or
changes the Post Office Box address
designated on its certificate
of registration, [
or if the builder has been authorized to utilize
a Post Office Box for the receipt of mail,
] the builder shall
submit a change of information form and the required fee not later
than thirty (30) days from the date of the address change.
(e) Each designated agent shall submit a change of information form and the required fee not later than thirty (30) days from the date the designated agent moves from the address provided on its application.
§303.19.Renewal.
(a)
An individual or business entity
[
After
March 1, 2004, a person
] operating as a builder
or remodeler
in
this state must keep a current certificate of registration and must
timely renew its certificate of registration.
(b) The primary designated agent shall timely apply for renewal of the certificate of registration.
(c)
[
(b)
] A builder
or
remodeler
that has been issued an even-numbered builder registration
certificate must renew its registration by the last day of February
of each even-numbered year. A builder
or remodeler
that
has been issued an odd-number certificate of registration must renew
its registration by February 28 of each odd-numbered year.
(d)
[
(c)
] A builder
or
remodeler that
[
who
] fails to maintain a current
certificate of registration may be subject to a late fee
,
[
and either
] an administrative penalty
,
or other disciplinary
action, as determined by the commission.
(e)
[
(d)
] In order to renew
a certificate of registration, a builder
or remodeler
shall
submit a completed application for renewal of a certificate of registration
and the required fee to the commission not later than thirty (30)
days prior to the end of the applicable registration period as provided
in subsection
(c)
[
(b)
] of this section.
(f) A builder or remodeler must respond completely and truthfully regarding criminal history and financial information, and disclosure of ownership information on all business entities registered with the commission. Failure to respond completely and truthfully will be considered evidence that the applicant is not honest and trustworthy and does not have integrity, and may result in denial of the renewal.
(g) All builders and remodelers that file renewal applications with the commission and that have registered more than twenty-five homes in the prior calendar year must file their renewal applications via the commission's secure Web portal provided for online builder/remodeler renewal registration. A completed renewal application and renewal fee must be submitted for each named individual or business entity under which the applicant intends to operate as a builder or remodeler in this state.
(h) Builders and remodelers that are required to use the online renewal process under subsection (e) of this section, but that are unable to utilize the online system may submit a sworn affidavit to the Executive Director requesting a waiver from the required use of the online process for renewal registration.
(i) The Executive Director may grant a waiver requested under subsection (f) of this section, if the builder or remodeler submits a sworn affidavit stating that the builder or remodeler:
(1) does not have the use of a credit card or access to online banking for the purpose of making an online payment;
(2) does not have access to the internet; or
(3) other good cause for waiver as determined in the sole discretion of the Executive Director.
(j) A decision by the Executive Director on whether to grant a waiver under subsection (i)(1) of this section is a final agency decision not subject to further administrative appeal.
(k) A builder or remodeler with a failed-to-timely renew status from a previous renewal year that has been inactive since it failed-to-timely renew must reapply for a certificate of registration under its existing builder registration number accompanied by a notarized affidavit that the company has not acted as a builder since the registration expired.
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 August 13, 2007.
TRD-200703565
Susan K. Durso
General Counsel
Texas Residential Construction Commission
Earliest possible date of adoption: September 23, 2007
For further information, please call: (512) 463-2886
The Texas Residential Construction Commission ("commission") proposes new rule §303.10 regarding consulting, supervisory, or managerial services that are related to residential construction activities. The new rule establishes a list of 15 factors that the commission will evaluate in determining whether a person who contracts with a homeowner to provide consulting, supervisory, or managerial services related to the construction of a new home or a material improvement to, or interior renovation of, an existing home, is a builder under Title 16 of the Property Code (the Act) and Chapter 303 of the commission's rules or whether the person is acting as a subcontractor or employee assisting a homeowner who is building his own new home or a material improvement or qualified interior renovation to the homeowner's existing home under Property Code §401.005.
The new rule will aid the commission in distinguishing between those persons who provide services to a homeowner that are merely ancillary to building activities conducted by the homeowner and those persons who are, in fact, acting as a builder while also attempting to avoid or evade the builder registration requirements of the Act and the commission's rules. This change will help ensure that persons who are, in fact, acting as a builder will become properly registered with the commission and will properly register those qualified projects for which they are responsible. Persons who offer supervisory, consulting and managerial services related to residential construction activities and who are not properly registered will be subject to disciplinary action within the commission's legal authority.
The 15 factors listed in the new rule include whether the person has direct contact with other subcontractors, vendors, or their employees who perform work for the homeowner related to the construction project; whether the person directs or schedules the work of other subcontractors, vendors, or their employees that is related to the project; and whether the person uses a builder registration number to obtain construction financing for or on behalf of the homeowner. The list of factors in the new rule is not exclusive and allows the commission to consider any other factor that is relevant in making the determination as to whether a person is a builder within the meaning of the Act and Chapter 303 of the commission's rules.
Susan Durso, General Counsel, has determined that for each year of the first five-year period that the new rule is in effect there will be no fiscal implications for state or local governments as a result of enforcing or administering the proposed new rule.
Ms. Durso has also determined that for each year of the first five-year period the proposed new rule is in effect the public will benefit from the registration of persons who are, in fact, acting as a builders even though they claim to only be providing services that support homeowners who construct their own homes. This, in turn, will benefit the public by making available to these homeowners and homes the statutory limited warranties and performance standards that apply to the construction performed by registered builders under Title 16 of the Property Code.
Ms. Durso has also determined that for each year of the first five-year period the proposed new rule is in effect there will be no significant effect on individuals or large, small, and micro-businesses as a result of the adoption of the new rule. Persons who are truly acting only as a consultants or advisor to homeowners, and are not acting as a builder as defined by Title 16 of the Property Code, will not be affected by the new rule.
Ms. Durso has also determined that for each year of the first five-year period the proposed new rule is in effect there should be no effect on a local economy; therefore, no local employment impact statement is required under Administrative Procedure Act §2001.022.
Interested persons may submit written comments (12 copies) on the proposed new rule to Susan K. Durso, General Counsel, Texas Residential Construction Commission, P.O. Box 13509, Austin, Texas 78711. The deadline for submission of comments is thirty (30) days from the date of publication of the proposed new rule in the Texas Register. Comments received after that date will not be considered. Comments should be organized in a manner consistent with the organization of the new rule. Comments may be submitted electronically to comments@trcc.state.tx.us. For comments submitted electronically, please include "consultant rule" in the subject line. Comments submitted electronically to another electronic address or that do not include "consultant rule" in the subject line may not be considered.
The new rule is proposed under 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, and under Chapter 416 of the Property Code, which requires registration by the commission of persons who act as builders in Texas.
The new rule is proposed to implement Property Code §408.001 and Chapter 416.
No other statutes, articles, or codes are affected by the proposed new rule.
§303.10.Evaluation of Builder's Relationship with the Homeowner.
(a) In determining whether a person who contracts with a homeowner is acting as a builder as that term is defined under the Act, or is merely acting as a subcontractor or employee assisting a homeowner who is constructing his own new home or material improvement or qualified interior renovation to the homeowner's exiting home, the commission will evaluate the factors listed in this subsection.
(1) whether the person has direct contact with other subcontractors, vendors, or employees of other subcontractors or vendors, who are performing work for the homeowner related to the construction project;
(2) whether the person is present at the job site at the same time as other subcontractors, vendors, or employees of other subcontractors or vendors, who are performing work for the homeowner related to the construction project and, if so, whether the homeowner is also present when the person is present;
(3) whether the person prepared or assisted in the preparation of a total project cost estimate for the homeowner;
(4) whether the person's fee or other compensation is based on the selection of specific subcontractors, vendors, or suppliers, the overall cost of the project, or any loan related to the project or time spent on the project;
(5) whether the person assists the homeowner in the selection or evaluation of subcontractors, vendors, or bids made by subcontractors or vendors;
(6) whether the person reviews the work or invoices of other subcontractors, vendors, or employees of other subcontractors or vendors;
(7) whether the person provides feedback to the homeowner on the work of other subcontractors, vendors, or employees of other subcontractors or vendors;
(8) whether the person directs the work of other subcontractors, vendors, or employees of other subcontractors or vendors;
(9) whether the person schedules the work of other subcontractors, vendors, or employees of other subcontractors or vendors;
(10) whether the person provides any physical labor, equipment or supplies for use by the homeowner in the completion of the construction project;
(11) whether the person pays any subcontractor, vendor, or employee of a subcontractor or vendor for work performed in the completion of the construction project, other than the person's own employees;
(12) whether the person selects or pays for the materials used for the construction project;
(13) whether the person uses its builder registration number or allows the use of its builder registration number to assist in obtaining construction financing for or on behalf of the homeowner;
(14) whether the person uses its builder registration number or allows the use of its builder registration number to assist the homeowner in obtaining a construction permit; and
(15) any other fact that is relevant to determining whether the person is attempting to avoid or evade the registration requirements of the Act or the limited warranty and performance obligations of a builder under the Act, or that demonstrates or tends to demonstrate that the person is, in fact, a builder within the meaning of the Act.
(b) If the commission determines, after notice and hearing, that a person is acting as a builder under the Act, without having properly registered as a builder or without having registered a home for which the person acted as a builder under the Act, the commission will take undertake disciplinary action in accordance with the provisions of this title.
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 August 13, 2007.
TRD-200703566
Susan K. Durso
General Counsel
Texas Residential Construction Commission
Earliest possible date of adoption: September 23, 2007
For further information, please call: (512) 463-2886
10 TAC §§303.100, 303.110, 303.120, 303.140, 303.150
The Texas Residential Construction Commission (the "commission") proposes amendments to Title 10, Part 7, Chapter 303, Subchapter B, §§303.100, 303.110, 303.120, 303.140, and 303.150, relating to the registration of homes in the State of Texas as provided for in Title 16, Property Code. The amendments are proposed to incorporate into the rules recent legislative amendments to the agency's statute and agency policy. In addition, the commission is reviewing the necessity of this rule under the requirements of Government Code §2001.39, which requires each state agency to periodically review its rules.
Section 303.100, relating to new home registration, and §303.110, relating to registration of existing homes, requires a home to be registered upon substantial completion, occupancy or issuance of a certificate of occupancy. In addition, §303.110 lowers the threshold for registration of improvements to the interior of an existing home to $10,000.00. Section 303.120, relating to registration for the purposes of the state sponsored inspection resolution process, eliminates a requirement that a homeowner register the home, and now provides that the commission will register the home, and the builder will pay all applicable fees. Amendments to §303.140, relating to the home registration process, provides for online home registration which will streamline and unify home registration, reduce staff time spent on entering data, and reduce errors on data entered as a result of illegible handwriting. The amendments also permit the Executive Director to grant waivers to this requirement, and will require use of the current registration form. Section 303.150, relating to home registration fees, permits assessment of civil penalties against a builder that registers a home more than sixty days past the required deadline.
Susan K. Durso, General Counsel, has determined that for each year of the first five-year period the proposed amendments are in effect there will be no fiscal implications for state or local governments as a result of enforcing or administering the proposed amendments.
Ms. Durso has also determined that for each year of the first five-year period the proposed amendments are in effect the public and builders will benefit from the expanded home registration dates, immediate registration of all SIRP projects, and clarification on the process to register homes and the applicable late fees. In addition, the public will benefit from reduced costs for processing paper work and uniform procedures for home registration by builders and remodelers.
Ms. Durso has also determined that for each year of the first five-year period the proposed amendments are in effect there will be no significant impact on individuals or large, small and micro-businesses because of the adoption of the proposed amendments.
Ms. Durso has also determined that for each year of the first five-year period the proposed amendments are in effect there should be no effect on a local economy; therefore, no local employment impact statement is required under Administrative Procedure Act §2001.022.
Interested persons may submit written comments (12 copies) on the proposed amendments to Susan K. Durso, General Counsel, Texas Residential Construction Commission, P.O. Box 13509, Austin, Texas 78711. The deadline for submission of comments is thirty (30) days from the date of publication of the proposed sections in the Texas Register . Comments received after that date will not be considered. Comments should be organized in a manner consistent with the organization of the proposed amendments. As part of the rule review, the public may include comments on whether the rule is still necessary. Comments may be submitted electronically to comments@trcc.state.tx.us. For comments submitted electronically, please include "Registration of Homes" in the subject line. Comments submitted electronically to another electronic address or that do not include "Registration of Homes" in the subject line may not be considered.
The amendments are proposed pursuant to Chapter 426, Property Code, which provides for the registration of homes; generally, pursuant to Property Code §408.001, which provides authority for the commission to adopt rules necessary for the implementation of Title 16, Property Code; and Government Code §2001.39.
The statutory provisions affected by these proposed amendments are those set forth in Property Code, Chapters 408 and 426.
No other statutes, articles, or codes are affected by the proposed amendments.
§303.100.New Home Registration.
(a) On or after January 1, 2004, a builder
or
remodeler
shall register with the commission all new home construction
[
resulting from a transaction
] governed by the Act.
(b) For new home construction involving a title transfer from the builder to the initial homeowner, the builder shall submit a home registration form and the appropriate fee to the commission on or before the 15th day of the month that follows the month in which the title transfer takes place.
(c) For new home construction that does not involve
a title transfer from the builder to the initial homeowner, a builder
shall register a home by submitting a home registration form and the
appropriate fee to the commission not later than the 15th day after
the
earlier of substantial completion of the home, the date the
home is occupied, or the date a certificate of occupancy or a certificate
of completion is issued.
[
date that the builder enters
into a transaction governed by the Act that is not subject to any
contingency or the date of commencement of the work on the home, whichever
date is earlier.
]
§303.110.Registration of Existing Homes by a Builder or Remodeler .
(a) On or after January 1, 2004, a builder
or
remodeler
who enters into a transaction
to improve
[
governed by the Act for
] an existing home shall register the
home with the commission.
(b) A builder
or remodeler
shall register
a home under this subsection by submitting a
home registration
form
[
Home Registration Form
] and the appropriate
fee to the commission not later than the 15th day after the
earlier
of substantial completion of the residential construction project,
the date the home is occupied, or the date a certificate of occupancy
or a certificate of completion is issued.
[
date that the
builder enters into a transaction governed by the Act that is not
subject to a contingency or the date of commencement of the work on
the home, whichever date is earlier.
]
(c) A builder
or remodeler
shall not intentionally
divide an agreement to improve the interior of an existing home into
more than one agreement each with consideration of less than
$10,000
[
$20,000
] for the purpose of avoiding the requirements
of this subchapter.
§303.120.Registration for Purposes of SIRP.
A home that is not registered at the time a homeowner
[
A person who
] files
an eligible
[
a
] request
with the commission to initiate the state-sponsored inspection and
dispute resolution process for an alleged construction defect(s)
will
be registered by the commission and the builder or remodeler shall
pay the home registration fee
[
resulting from a transaction
governed by the Act, must register the home with the commission at
the time of filing the request if the home has not been registered
previously with the commission
].
§303.140.Home Registration Process.
(a) A
builder or remodeler
[
person
]
registering a home under
§303.100 or §303.110 of
this subchapter shall
submit a completed home registration form in
effect at the time the home is registered
[
use the Home Registration Form
].
(b) A completed home registration form must be submitted
to the commission with the appropriate fee [
by first class mail,
personal delivery or
] via the commission's secure Web portal
provided for online home registrations by builders
or remodelers,
except as provided by subsection (d) of this section
.
(c) All builders and remodelers that are registered with the commission and that filed twenty-five or more home registration forms with the commission in the preceding calendar year must register homes online via the commission's secure Web portal for online home registration, unless the builder or remodeler has received a waiver of this requirement under subsection (e) of this section.
(d) Builders and remodelers that are unable to utilize the online home registration process as required by subsection (c) of this section may submit a sworn affidavit to the Executive Director requesting a waiver from the required use of the online process for home registration.
(e) The Executive Director may grant a waiver requested under subsection (d) of this section, if the builder or remodeler submits a sworn affidavit stating that the builder or remodeler:
(1) does not have the use of a credit card or access to online banking for the purpose of making an online payment;
(2) does not have access to the internet; or
(3) other good cause for waiver as determined in the sole discretion of the Executive Director.
(f) If a builder or remodeler is granted a waiver under this section, the home registration form must be submitted to the commission with the appropriate fee by first class mail, fax, or personal delivery.
(g) The Executive Director's decision on whether to grant a waiver under subsection (e) of this section is a final agency decision not subject to further administrative appeal.
(h) The home registration form must state the legal name of the builder or remodeler, as registered with the commission, and the builder registration number assigned by the commission. If the builder registration information on the home registration form does not match commission registration records, the form maybe returned to the builder or remodeler without processing and all fees paid may be forfeited.
(i) If the home registration form is incomplete, the builder or remodeler will be granted 15 days to complete the home registration form. If an appropriate response is not timely received, the home registration application will be denied and all fees paid forfeited.
(j) If a home registration is denied, it is incumbent on the builder or remodeler to register the home appropriately, including paying all late filing fees and civil penalties due. A denial under this subsection constitutes a violation of Property Code §418.001(9) and 10 TAC§303.5(j).
(k) If a home registration is submitted more than 60 days past the deadline for filing the home registration, the commission will assess civil penalties in addition to the home registration filing and late filing fees.
§303.150. Home Registration Fees.
(a) Home registration fees paid under a waiver granted under §303.140 shall be made payable to the Texas Residential Construction Commission via check, money order, credit card or other payment method acceptable to the commission by first class mail, fax, or personal delivery. Online home registration fees must be paid by credit card, debit card or electronic transfer .
(b) A builder or remodeler who fails to register a new home or an existing home construction project with the commission pursuant to the requirements of this subchapter may register the home not later than sixty (60) days after the required registration period has expired by submitting the home registration form with payment of the home registration fee and a late filing home registration penalty in an amount set by the commission.
(c) A builder
or remodeler that
[
who
]
has been granted tax-exempt status by the Internal Revenue Service
under the Internal Revenue Code §501(c)(3) may request a waiver
of a home registration fee by submitting a commission-prescribed fee
waiver form and documentation verifying the [
builder's
]
Internal Revenue Code §501(c)(3) tax-exempt status
; however,
builders and remodelers that fail to timely register homes and home
registration projects under this subchapter are subject to late fees
and civil penalties as imposed 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 August 13, 2007.
TRD-200703547
Susan K. Durso
General Counsel
Texas Residential Construction Commission
Earliest possible date of adoption: September 23, 2007
For further information, please call: (512) 463-2886
The Texas Residential Construction Commission (the "commission") proposes amendments to §303.202, relating to applications for third-party inspectors as provided for in Title 16, Property Code. The amendments are proposed to incorporate recent legislative amendments to the agency statute. The amendments reflect statutory changes to applicants' experience requirements and the credentials required for applicants on structural and workmanship and materials inspections. In addition, the commission is reviewing the necessity of this rule under the requirements of Government Code §2001.39, which requires each state agency to periodically review its rules.
Susan K. Durso, General Counsel, has determined that for each year of the first five-year period the proposed amendments are in effect there will be no fiscal implications for state or local governments as a result of enforcing or administering the proposed amendments.
Ms. Durso has also determined that for each year of the first five-year period the proposed amendments are in effect the public and inspectors will benefit the potentially expanded pool of inspector applicants and clarification on the requirements for a combination inspector registration.
Ms. Durso has also determined that for each year of the first five-year period the proposed amendments are in effect there will be no effect on individuals or large, small and micro-businesses because of the adoption of the proposed amendments.
Ms. Durso has also determined that for each year of the first five-year period the proposed amendments are in effect there should be no effect on a local economy; therefore, no local employment impact statement is required under Administrative Procedure Act §2001.022.
Interested persons may submit written comments (12 copies) on the proposed amendments to Susan K. Durso, General Counsel, Texas Residential Construction Commission, P.O. Box 13509, Austin, Texas 78711. The deadline for submission of comments is thirty (30) days from the date of publication of the proposed amendments in the Texas Register. Comments received after that date will not be considered. Comments should be organized in a manner consistent with the organization of the proposed amendment. As part of the rule review, the public may include comments on whether the rule is still necessary. Comments may be submitted electronically to comments@trcc.state.tx.us. For comments submitted electronically, please include "Applications for Third-party Inspectors" in the subject line. Comments submitted electronically to another electronic address or that do not include "Applications for Third-party Inspectors" in the subject line may not be considered.
The amendments are proposed pursuant to Chapter 427, Property Code, which provides for the registration of third-party inspectors and, generally, pursuant to Property Code §408.001, which provides authority for the commission to adopt rules necessary for the implementation of Title 16, Property Code.
The statutory provisions affected by these proposed amendments are those set forth in Property Code, Chapters 408 and 427 and Government Code §2001.39.
No other statutes, articles, or codes are affected by the proposed amendments.
§303.202.Application.
(a) An individual applying for registration to serve as a third-party inspector for appointment in the state-sponsored inspection and dispute resolution process must submit a completed application on a commission-prescribed form and the appropriate fee.
(b) An individual may submit an application for registration with the commission to serve as both a workmanship and materials inspector and a structural inspector. An individual seeking to serve as both a workmanship and materials inspector and a structural inspector must meet the qualifications of each position.
(c) An individual applying for registration as a third-party inspector for issues related to workmanship and materials shall:
(1) provide credible documentation that the individual
has acquired a minimum of
three (3)
[
five
] years
of experience working in the field of residential construction;
(2) provide documentation that the individual has a current
International Code Council (ICC)
[
ICC
]
certification as a residential combination inspector;
(3) attest that the individual has not received more than ten percent of the individual's gross income from providing expert witness services, including retainer fees accepted for the purpose of providing testimony, evidence or consultation in connection with a pending or threatened legal action. For purposes of calculating ten percent of the individual's gross income, the individual should multiply the amount of gross income reported on the last federal income tax return filed by that individual by ten percent. Fees for expert witness services, including providing testimony or evidence in a legal action, received by the individual as a result of having served in the capacity of a registered third-party inspector may be excluded from the amount of gross income when calculating the percentage of gross income received from providing expert witness services under this subsection; and
(4) provide any other information that the commission has deemed necessary to assess the individual's qualifications and fitness to serve as a third-party inspector.
(d) An individual applying for registration as a third-party inspector for issues involving either a structural matter or a structural matter and related workmanship and materials shall:
(1) provide documentation that the individual is a state-licensed professional engineer or a state-licensed architect; and
(2)
provide documentation that the individual has acquired
a minimum of
five (5)
[
ten (10)
] years of experience
working in the field of residential construction;
(3) attest that the individual has not received more than ten percent of the individual's gross income from providing expert witness services, including retainer fees accepted for the purpose of providing testimony, evidence or consultation in connection with a pending or threatened legal action. For purposes of calculating ten percent of the individual's gross income, the individual should multiply the amount of gross income reported on the last federal income tax return filed by that individual by ten percent. Fees for expert witness services, including providing testimony or evidence in a legal action, received by the individual as a result of having served in the capacity of a registered third-party inspector may be excluded from the amount of gross income when calculating the percentage of gross income received for providing expert witness services under this subsection; and
(4) provide any other information that the commission has deemed necessary to assess the individual's qualifications and fitness to serve as a third-party inspector.
(e) A third-party inspector who inspects a issue involving a structural matter and unrelated issue involving workmanship and materials matters must meet the requirements of subsection (d) of this section and provide documentation that the individual has a current ICC certification as a residential combination inspector.
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 August 13, 2007.
TRD-200703554
Susan K. Durso
General Counsel
Texas Residential Construction Commission
Earliest possible date of adoption: September 23, 2007
For further information, please call: (512) 463-2886
Subchapter A. GENERAL PROVISIONS
The Texas Residential Construction Commission ("commission") proposes amendments to §305.2 regarding definitions. The proposed amendments define new terms added to the Act by House Bill 1038, as enacted by the 80th Texas Legislature: reasonable expenses and fees; repeated failure; and repeated prior violations. The proposed amendment also defines injunctive relief, an existing term that has not been previously addressed.
Susan Durso, General Counsel, has determined that for each year of the first five-year period the proposed amendments are in effect there will be no fiscal implications for state or local governments as a result of enforcing or administering the proposed amendments.
Ms. Durso, has also determined that for each year of the first five-year period the proposed amendments are in effect the public will benefit from having clearer definitions of terms used in the commission's rules.
Ms. Durso has also determined that for each year of the first five-year period the proposed amendments are in effect there will be no effect on individuals or large, small, and micro-businesses as a result of the adoption of the proposed amendments.
Ms. Durso has also determined that for each year of the first five-year period the proposed amendments are in effect there should be no effect on a local economy; therefore, no local employment impact statement is required under Administrative Procedure Act §2001.022.
Interested persons may submit written comments (12 copies) on the proposed amendments to Susan K. Durso, General Counsel, Texas Residential Construction Commission, P.O. Box 13509, Austin, Texas 78711. The deadline for submission of comments is thirty (30) days from the date of publication of the proposed amendments in the Texas Register. Comments received after that date will not be considered. Comments should be organized in a manner consistent with the organization of the proposed amendments. As part of the rule review, the public may include comments on whether the rule is still necessary. Comments may be submitted electronically to comments@trcc.state.tx.us. For comments submitted electronically, please include "305 definitions" in the subject line. Comments submitted electronically to another electronic address or that do not include "305 definitions" in the subject line may not be considered.
The amendments are proposed under 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, and under Property Code Chapter 419. In addition, the commission is reviewing the necessity of this rule under the requirements of Government Code §2001.39, which requires each state agency to periodically review its rules.
The amendments are proposed to implement Property Code §401.007, §408.001, and Chapter 419 and Government Code §2001.39.
No other statutes, articles, or codes are affected by the proposed amendments.
§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) Injunctive Relief--A court-ordered requirement to act or prohibition against an act or condition that has been requested, and sometimes granted, in a petition to the court for an injunction.
(20)
[
(19)
] Party--The commission
and each person named or admitted as a party in a contested proceeding
before the commission or SOAH.
(21)
[
(20)
] Person--Any individual,
partnership, corporation, association, governmental subdivision, or
public, private organization, or other entity however organized.
(22)
[
(21)
] 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.
(23)
[
(22)
] 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.
(24)
[
(23)
] Presiding officer--The
commission, any commissioner, or administrative law judge presiding
over a proceeding.
(25)
[
(24)
] Probationer--A registrant
who is under a commission order of suspension.
(26)
[
(25)
] Proceeding--Any
hearing, including the denial of relief or the dismissal of a complaint,
conducted by the commission or SOAH.
(27) Reasonable expenses and fees--Expenses and fees that are fair, just and suitable under the circumstances and that can be justified with documentation including invoices, time sheets, or court costs.
(28)
[
(26)
] Registrant--Any
person to whom the agency has issued a certificate of registration,
certification, approval or similar form of permission authorized by
law.
(29)
[
(27)
] Registration--The
agency process relating to the granting, denial, renewal, revocation,
cancellation, suspension, limitation, reinstatement or re-issuance
of a certificate of registration.
(30) Repeated failure--Failure to respond to requests from the commission or failure to perform a duty as required by the Act or the rules two or more times.
(31) Repeated prior violations--Two or more violations of the same or different section(s) of the Act or rules.
(32)
[
(28)
] 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.
(33)
[
(29)
] 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.
(34)
[
(30)
] SOAH--The State
Office of Administrative Hearings.
(35)
[
(31)
] SOAH hearing--A
public adjudication proceeding at SOAH.
(36)
[
(32)
] SOAH rules--1 Texas
Administrative Code §§155.1 - 155.59.
(37)
[
(33)
] Violation--Any activity
or conduct prohibited by the Texas Residential Construction Commission
Act, commission rule or commission order.
(38)
[
(34)
] Witness--Any person
offering testimony or evidence at a commission or SOAH proceeding.
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 August 13, 2007.
TRD-200703553
Susan K. Durso
General Counsel
Texas Residential Construction Commission
Earliest possible date of adoption: September 23, 2007
For further information, please call: (512) 463-2886
The Texas Residential Construction Commission proposes amendments to §305.21, regarding the procedures for hearings and disciplinary actions. The proposed amendments eliminate the distinction between formal and informal reprimands and provide for revocation or suspension of a certificate of registration upon a finding that a registrant has had repeated violations that have resulted in disciplinary action or is no longer eligible for registration under §416.005 and §416.006 of the Act. In addition, the commission is reviewing the necessity of this rule under the requirements of Government Code §2001.39, which requires each state agency to periodically review its rules.
The proposed amendments provide for the issuance of a cease and desist order and the imposition of penalties for violating a cease and desist order. In addition, the amendments state the standard criteria to be used in determining administrative penalties related to commission actions.
Ms. Susan Durso, General Counsel for the commission, has determined that for each year of the first five-year period that the proposed amendments 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 proposed amendments.
Ms. Durso has also determined that for the first five years the proposed amendments 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 amendments 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.
Interested persons may submit written comments (12 copies) on the proposed amendments to Susan K. Durso, General Counsel, Texas Residential Construction Commission, P.O. Box 13509, Austin, Texas 78711-3509. The deadline for submission of comments is thirty (30) days from the date of publication of the proposed amendments in the Texas Register. Comments received after that date will not be considered. Comments should be organized in a manner consistent with the organization of the proposed rule. As part of the rule review, the public may include comments on whether the rule is still necessary. Comments may be submitted electronically to comments@trcc.state.tx.us. For comments submitted electronically, please include "305.21 Amendment" in the subject line. Comments submitted electronically to another electronic address or that do not include "305.21 Amendment" in the subject line may not be considered.
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 §416.005 and §416.006 regarding eligibility requirements for individuals and business entities and Government Code §2001.39.
No other statutes, articles, or codes are affected by the 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 violated a commission rule or order , shall enter an order imposing one or more of the following actions:
(1) administer a [
formal or informal
] reprimand;
(2) revoke or suspend a person's certificate of registration or certification based on repeated prior violations that have resulted in disciplinary action ;
(3) assess an administrative penalty against the person;
[
or
]
(4)
issue a cease and desist order
[
initiate
an action
] to enjoin a person from further action in violation
of the Act or commission rule
; or
[
.
]
(5) impose penalties for violation of a cease and desist order.
(b) Before imposing disciplinary action under subsection (a)(2) of this section based on a transaction between a builder and a homeowner, the repeated prior violations must have involved the greater of three homes registered or one percent of the homes registered by the builder during the preceding 12 months.
(c)
[
(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.
(d)
[
(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.
(e) Upon finding that a registrant is no longer eligible for a certificate of registration under §416.005 or §416.006 of the Act, the commission shall enter an order to revoke or suspend a person's certificate of registration.
(f)
[
(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.
(g)
[
(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.
(h) When determining whether to impose an action on a person other than or in addition to the assessment of an administrative penalty under subsection (a) of this section, the commission shall consider:
(1) the seriousness of the violation, including the nature, circumstances, extent, and gravity of the prohibited acts;
(2) the history of previous violations;
(3) the amount necessary to deter a future violation;
(4) efforts to correct the violation; and
(5) any other matter justice may require.
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 August 13, 2007.
TRD-200703552
Susan K. Durso
General Counsel
Texas Residential Construction Commission
Earliest possible date of adoption: September 23, 2007
For further information, please call: (512) 463-2886
The Texas Residential Construction Commission ("commission") proposes an amendment to §305.22, regarding administrative penalties. The proposed amendment increases the maximum penalty amount from $5,000 to $10,000 for each violation of Title 16 of the Property Code or the commission's rules. This change is necessary to implement House Bill 1038, as enacted by the 80th Texas Legislature, which increases the maximum penalty amount in §419.002(a) of the Property Code from $5,000 to $10,000 for each violation of Title 16 of the Property Code or the commission's rules.
The proposed amendment establishes a requirement and procedure for the commission's publication of guidelines regarding sanctions and administrative penalties for a person's first violation of Title 16 of the Property Code or the commission's rules that involves a failure to comply with a filing or payment requirement, or a failure to respond to a commission request for information. This change will help ensure that administrative penalties for such violations are assessed fairly and consistently according to a set of guidelines that the commission will publish. The guidelines will be reviewed annually by the commission in an open meeting and the commission will provide an opportunity for public comment on the guidelines with at least 30 days' notice to the public prior to the meeting in which the guidelines are reviewed.
The proposed amendment also establishes a maximum penalty amount of $1,000 for each day of violation of a cease and desist order issued by the commission. The proposed amendment clarifies that the maximum penalty amount of $5,000 for each violation of Title 16 of the Property Code or the commission's rules does not apply to violations of a cease and desist order issued by the commission. This change is needed because the 80th Texas Legislature added §401.007 to the Property Code, which authorizes the commission to issue a cease and desist order, an order to take affirmative action, or both, to a person who is in violation of Title 16 of the Property Code, and to assess an administrative penalty in an amount not to exceed $1,000 for each day that a violation of a cease and desist order occurs.
The proposed amendment makes three changes in the language of §305.22(a), so that the rule will be applicable to a "person" who commits a violation, and not just a "registrant", as is currently provided, and to clarify the current text of the rule.
Susan Durso, General Counsel, has determined that for each year of the first five-year period the proposed amendment is in effect there will be no fiscal implications for state or local governments as a result of enforcing or administering the proposed amendment.
Ms. Durso, has also determined that for each year of the first five-year period the proposed amendment is in effect the public will benefit from knowing the amounts that the commission will assess as administrative penalties for first-time violations of filing, payment, or response requirements of Title 16 of the Property Code or the commission's rules.
Ms. Durso has also determined that for each year of the first five-year period the proposed amendment is in effect there will be no significant effect on individuals or large, small, and micro-businesses as a result of the adoption of the proposed amendment.
Ms. Durso has also determined that for each year of the first five-year period the proposed amendment is in effect there should be no effect on a local economy; therefore, no local employment impact statement is required under Administrative Procedure Act §2001.022.
Interested persons may submit written comments (12 copies) on the proposed rule to Susan K. Durso, General Counsel, Texas Residential Construction Commission, P.O. Box 13509, Austin, Texas 78711. The deadline for submission of comments is thirty (30) days from the date of publication of the proposed amendment in the Texas Register. Comments received after that date will not be considered. Comments should be organized in a manner consistent with the organization of the proposed amendment. As part of the rule review, the public may include comments on whether the rule is still necessary. Comments may be submitted electronically to comments@trcc.state.tx.us. For comments submitted electronically, please include "penalty rule" in the subject line. Comments submitted electronically to another electronic address or that do not include "penalty rule" in the subject line may not be considered.
The amendment is proposed under 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, and under Chapter 419 of the Property Code, which relates to administrative penalties that may be assessed by the commission. In addition, the amendment is proposed as a part of an agency rule review plan pursuant to Government Code §2001.39.
The amendment is proposed to implement Property Code §401.007, §408.001, and Chapter 419. In addition, the amendment is proposed as part of an agency rule review plan pursuant to Government Code §2001.39.
No other statutes, articles, or codes are affected by the proposed amendment.
§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
person
[
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
, other
than a violation of a cease and desist order,
may be in an amount
not to exceed
$10,000.00
[
$5,000.00
].
(3) The penalty for each violation of a cease and desist order may be in an amount not to exceed $1,000 for each day that the violation occurs.
(4)
[
(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.
(c) Guidelines.
(1) The commission will publish guidelines regarding sanctions and administrative penalties to impose against a person for the first violation of the Act or an agency rule by a person that consists of a failure to comply with a filing or payment requirement, or a failure to provide information or documents requested by the commission pursuant to a provision of the Act or an agency rule that authorizes such request.
(2) The commission will review the guidelines at least annually at an open meeting and provide an opportunity for public comment on the guidelines with at least 30 days notice prior to the meeting in which the guidelines are reviewed.
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 August 13, 2007.
TRD-200703551
Susan K. Durso
General Counsel
Texas Residential Construction Commission
Earliest possible date of adoption: September 23, 2007
For further information, please call: (512) 463-2886
The Texas Residential Construction Commission proposes amendments to §305.28 and §305.31 of 10 TAC Chapter 305, regarding the procedures for hearings and disciplinary actions. The amendments are proposed to incorporate into the rules recent legislative amendments to the agency's statute and agency policy. Section 305.28 clarifies the application of disciplinary actions. Section 305.31 adds cease and desist orders to notice of hearing requirements. In addition, the amendments are proposed as a part of the agency's rule review plan pursuant to Government Code §2001.39.
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 and builders will benefit from knowing the availability and applicability of cease and desist orders in the enforcement process.
Ms. Durso has also determined that for each year of the first five-year period the proposed amendments are in effect there will be no effect on individuals or large, small and micro-businesses because of the adoption of the proposed amendments unless they are registered builders and remodelers who face disciplinary action.
Ms. Durso has also determined that for each year of the first five-year period the proposed amendments are in effect there should be no effect on a local economy; therefore, no local employment impact statement is required under Administrative Procedure Act §2001.022.
Interested persons may submit written comments (12 copies) on the proposed amendments to Susan K. Durso, General Counsel, Texas Residential Construction Commission, P.O. Box 13509, Austin, Texas 78711. The deadline for submission of comments is thirty (30) days from the date of publication of the proposed sections in the Texas Register . Comments received after that date will not be considered. Comments should be organized in a manner consistent with the organization of the proposed amendment. As part of the rule review, the public may include comments on whether the rule is still necessary. Comments may be submitted electronically to comments@trcc.state.tx.us. For comments submitted electronically, please include "Disciplinary Actions" in the subject line. Comments submitted electronically to another electronic address or that do not include "Disciplinary Actions" in the subject line may not be considered.
The amendments are proposed pursuant to Chapter 418, Property Code, which provides for disciplinary actions and, generally, pursuant to Property Code §408.001, which provides authority for the commission to adopt rules necessary for the implementation of Title 16, Property Code.
The statutory provisions affected by these proposed amendments are those set forth in Property Code, Chapters 408 and 418. In addition, the new rule is proposed as part of an agency rule review plan pursuant to Government Code §2001.39.
No other statutes, articles, or codes are affected by the proposed amendments.
§305.28.Referral to the State Office of Administrative Hearings.
(a) If a denied builder or third-party warranty company applicant requests a hearing, the Executive Director shall refer the matter to SOAH as set forth in this chapter.
(b) If the Executive Director believes that a [
registered
] person has violated a provision of the Act or a commission
rule
or order
, the Executive Director shall refer the matter
to SOAH as set forth in this chapter.
(c) If the Executive Director believes that a person is no longer eligible or qualified to be registered under Chapter 303 of this title, 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 August 13, 2007.
TRD-200703549
Susan K. Durso
General Counsel
Texas Residential Construction Commission
Earliest possible date of adoption: September 23, 2007
For further information, please call: (512) 463-2886
The amendments are proposed pursuant to Chapter 418, Property Code, which provides for disciplinary actions and, generally, pursuant to Property Code §408.001, which provides authority for the commission to adopt rules necessary for the implementation of Title 16, Property Code.
The statutory provisions affected by these proposed amendments are those set forth in Property Code, Chapters 408 and 418. In addition, the new rule is proposed as part of an agency rule review plan pursuant to Government Code §2001.39.
No other statutes, articles, or codes are affected by the proposed amendments.
§305.31.Notice of SOAH Proceedings.
(a) Notice.
(1) Before revoking or suspending any certificate of
registration or certification, [
or
] reprimanding any registrant,
initiating action for a cease and desist order, or initiating a proceeding
for penalties for failure to comply with a cease and desist order
or other order prohibiting violations of the Act,
the commission
will afford all parties an opportunity for an adjudicative hearing
after reasonable notice of not less than ten days, except as otherwise
provided by commission rule or the Act.
(2) Upon receiving written notice of an appeal of a denial of registration, the commission will make a request for hearing with SOAH within a reasonable time but not later than fifteen business days after receipt of the notice of appeal.
(b) The content of the notice shall be made in accordance with the provisions of §2001.052 of the APA.
(c) Service of notices of hearing shall be made to the parties' last known address submitted to the commission in accord with 10 TAC Chapter 303, Subchapters A, C or D, and 10 TAC Chapter 318, Subchapter B, as applicable, as reflected in the commission's records. Notice mailed to such address by first class mail shall be prima facie evidence of adequate service.
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 August 13, 2007.
TRD-200703550
Susan K. Durso
General Counsel
Texas Residential Construction Commission
Earliest possible date of adoption: September 23, 2007
For further information, please call: (512) 463-2886
The Texas Residential Construction Commission ("commission") proposes an amendment to §306.1, relating to the commission's complaint process. The proposed amendment makes it a violation of this section for a respondent to fail to respond to a commission request for a written response or information regarding a complaint within forty-five (45) days after the date that the commission issues its request to the respondent. The proposed amendment also requires the commission to make a final disposition of each complaint that is assigned to an investigator and to notify both the complainant and respondent of its final disposition of the complaint. The amendment is proposed as part of a rule review pursuant to Government Code §2001.39.
The proposed amendment will encourage respondents to provide written responses and information to the commission regarding complaints filed against them and will improve the communication to complainants and respondents regarding the final disposition of complaints that have been assigned to an investigator. The use of the date of issuance, as opposed to the date of receipt, of the commission's request to respondents for written responses and information regarding complaints will help reduce uncertainty as to when the response period begins and ends.
Susan Durso, General Counsel, has determined that for each year of the first five-year period the proposed amendment is in effect there will be no fiscal implications for state or local governments as a result of enforcing or administering the proposed section.
Ms. Durso has also determined that for each year of the first five-year period the proposed amendment is in effect the public will benefit from knowing the status and final disposition of complaints they have filed with the commission that have been assigned to an investigator, and from greater responsiveness by respondents to complaints filed against them by consumers.
Ms. Durso has also determined that for each year of the first five-year period the proposed amendment is in effect there will be no effect on individuals or large, small, and micro-businesses as a result of the adoption of the proposed amendment.
Ms. Durso has also determined that for each year of the first five-year period the proposed amendment is in effect there should be no effect on a local economy; therefore, no local employment impact statement is required under Administrative Procedure Act §2001.022.
Interested persons may submit written comments (12 copies) on the proposed amendment to Susan K. Durso, General Counsel, Texas Residential Construction Commission, P.O. Box 13509, Austin, Texas, 78711 or by fax to (512) 475-2453. As part of the rule review, the public may include comments on whether the rule is still necessary. Comments may also be submitted electronically to comments@trcc.state.tx.us. For comments submitted electronically, please include "complaint rule" in the subject line. The deadline for submission of comments is thirty (30) days from the date of publication of the proposed amendment in the Texas Register. Comments should be organized in a manner consistent with the organization of the proposed amendment.
The amendment is proposed to implement Property Code §408.001 and §409.003 and Government Code §2005.052(a)(3), which was enacted by the 80th Texas Legislature as part of House Bill 1168 and provides for the denial, suspension, or revocation of a person's license, including a person's registration, for refusing to provide information requested by a licensing authority. In addition, the amendment is proposed as part of an agency rule review plan pursuant to Government Code §2001.39.
No other statutes, articles, or codes are affected by the proposal.
§306.1.Complaint Process.
(a) All complaints shall be submitted in writing, preferably
on the commission's Complaint Form, to the Texas Residential Construction
Commission, Attn: Complaints, Post Office Box
13509
[
13144
], Austin, Texas 78711
-3509
, by fax to (512) 463-9507,
or by email to info@trcc.state.tx.us. The commission's Complaint Form
may be obtained by calling the agency toll free at 1-877-651-8722
or from the commission's web site at www.trcc.state.tx.us.
(b) All complaints, whether or not submitted on the commission complaint form, must include the following information in order that the commission may make a preliminary determination as to whether the complaint is within the commission's jurisdiction:
(1) the name and contact information for complainant;
(2) the name and contact information of the party against which the complaint is made;
(3) a description of the basis for the complaint;
(4) the date the information forming the basis of the complaint was discovered;
(5) the names and contact information for any witnesses;
(6) any sources of other pertinent information; and
(7) copies of any documents that support the allegations that form the basis of the complaint.
(c) All complaints, whether or not submitted on the commission complaint form, should include the following information, if known to the complainant and relevant to the complaint:
(1) whether there is a construction contract and if so, the nature of the construction work (new home, remodel) and total contract price;
(2) the start and completion date of the construction; and
(3) if the respondent is a commission registrant, the respondent's registration number.
(d) Upon receipt of a written complaint, the commission will make a preliminary determination as to whether the basis of the complaint is a matter within the commission's jurisdiction. If the complaint information provided is insufficient to make a preliminary determination, the agency will contact the complainant in an effort to develop additional information. If the complainant fails to respond to an information request within 30 days, the commission may close the complaint without prejudice.
(e) If the preliminary determination shows that the
commission is the appropriate forum for the subject matter of the
complaint, the commission will provide the respondent with a copy
of the complaint and request a written response within
45
[
30
] days of
the date of issuance of the commission's request
to the respondent
[
receipt of the letter
].
(f) It shall be a violation of this section if a respondent fails to respond to a commission request for a written response to, or information regarding, a complaint within 45 days after the date of issuance of the request to the respondent.
(g)
[
(f)
] If the preliminary
determination shows that the complaint is unwarranted or that another
entity has authority over the matter, the commission will notify the
complainant and respondent of the intent to close the complaint file
and if appropriate, the commission will refer the matter to the proper
authority.
(h)
[
(g)
] If a response is received
from the respondent, the commission will evaluate the information
received and provide a copy of the response to the complainant.
(i)
[
(h)
] If the facts supplied
by the complainant and any response received from the respondent indicate
that a further investigation may lead to evidence of a violation of
Title 16 of the Property Code or commission rules, the commission
will transfer the complaint to an investigator to conduct an investigation.
(j)
[
(i)
] If an investigation
leads to sufficient evidence to support a disciplinary action, the
commission will take disciplinary action pursuant to Chapter 418 of
the Property Code and commission rules.
(k)
[
(j)
] The commission shall
report quarterly to
the complainant and respondent
[
both
parties
] on the status of a complaint until the commission closes
the complaint or assigns the complaint to an investigator.
(l) The commission shall make a final disposition of an investigation that originated from a complaint referred to an investigator and the investigator shall notify both the complainant and the respondent of the final disposition of the investigation.
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 August 13, 2007.
TRD-200703548
Susan K. Durso
General Counsel
Texas Residential Construction Commission
Earliest possible date of adoption: September 23, 2007
For further information, please call: (512) 463-2886