Part 13. TEXAS COMMISSION ON FIRE PROTECTION
Chapter 401. PRACTICE AND PROCEDURE
The Texas Commission on Fire Protection (the Commission) adopts, with changes, the amendments to §401.13, Computation of Time; §401.19, Petition for Adoption of Rules; §401.21, Examination Challenge; §401.23, Examination Waiver Request; §401.31, Disciplinary Proceedings in Contested Cases; §401.51, Preliminary Notice and Opportunity for Hearing; §401.101, Conduct and Decorum; §401.103, Discovery Sanctions. These amendments are adopted with changes to the proposed text published in the May 4, 2007, issue of the Texas Register (32 TexReg 2455) and will be republished.
The purpose of posting these amendments is to update language, make grammatical and punctuation corrections, and to capitalize the word "c" in commission when referring to the Texas Commission on Fire Protection.
No comments were received from the public regarding the proposed amendments.
Subchapter A. GENERAL PROVISIONS AND DEFINITIONS
These amendments are adopted under §419.022(b) of the Texas Government Code.
§401.13.Computation of Time.
(a) Computing Time. In computing any period of time prescribed or allowed by these rules, by order of the Agency, or by any applicable statute, the period shall begin on the day after the act, event, or default in controversy and conclude on the last day of such computed period, unless it be a Saturday, Sunday, or a legal holiday, in which event, the period runs until the end of the next day which is neither a Saturday, Sunday, nor a legal holiday. A party or attorney of record notified by mail under §401.61 of this title (relating to Record) is deemed to have been notified on the date on which notice is mailed.
(b) Extensions. Unless otherwise provided by statute, the time for filing any pleading, except a notice of protest, may be extended by order of the director, upon the following conditions:
(1) A written motion must be duly filed with the director prior to the expiration of the applicable period of time allowed for such filings.
(2) The written motion must show good cause for such extension and that the need is not caused by the neglect, indifference, or lack of diligence on the part of the movant.
(3) A copy of any such motion shall be served upon all other parties of record to the proceeding contemporaneously with the filing thereof.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 29, 2007.
TRD-200702759
Gary L. Warren, Sr.
Executive Director
Texas Commission on Fire Protection
Effective date: July 19, 2007
Proposal publication date: May 4, 2007
For further information, please call: (512) 936-3838
These amendments are adopted under §419.022(b) of the Texas Government Code.
§401.19.Petition for Adoption of Rules.
(a) Any person may petition the Commission requesting the adoption of a new rule or an amendment to an existing rule as authorized by the APA, §2001.021.
(b) Petitions shall be sent to the executive director. Petitions shall be deemed sufficient if they contain:
(1) the name and address of the person or entity on whose behalf the application is filed;
(2) specific reference to the existing rule which is proposed to be changed, amended, or repealed;
(3) the exact wording of the new, changed, or amended proposed rule with new language underlined and deleted language dashed out;
(4) the proposed effective date; and
(5) a justification for the proposed action set out in narrative form with sufficient particularity to inform the Commission and any other interested person of the reasons and arguments on which the petitioner is relying.
(c) The executive director shall direct that the petition for adoption of rules be placed on the next agenda for discussion by the Commission or an advisory committee with subject matter jurisdiction in accordance with §401.11 of this title (relating to Conduct of Commission and Advisory Meetings).
(d) A request for clarification of a rule shall be treated as a petition for a rule change. The Commission staff may request submission of additional information from the applicant to comply with the requirements of subsection (b) of this section.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 29, 2007.
TRD-200702765
Gary L. Warren, Sr.
Executive Director
Texas Commission on Fire Protection
Effective date: July 19, 2007
Proposal publication date: May 4, 2007
For further information, please call: (512) 936-3838
These amendments are adopted under §419.022(b) of the Texas Government Code.
§401.21.Examination Challenge.
(a) An examinee who seeks to challenge the failure of an examination must submit a written request for an informal conference to the Fire Service Standards and Certification division director to discuss informal disposition of the complaint(s).
(b) An examination may be challenged only on the basis of examination content, failure to comply with Commission rules by a certified training facility, or problems in the administration of the examination.
(c) The written request must identify the examinee, the specific examination taken, the date of the examination, and the basis of the appeal.
(d) An examinee who challenges the content of an examination must identify the subject matter of the question(s) challenged and is not entitled to review the examination due to the necessity of preserving test security.
(e) The request must be submitted within 30 days from the date the grade report is posted on the website.
(f) Commission staff shall schedule a conference with the applicant in accordance with §401.41 of this title (relating to Preliminary Staff Conference) to discuss the challenge within 30 days of the request or as soon as practical. The examinee may accept or reject the settlement recommendations of the Commission staff. If the examinee rejects the proposed agreement, the examinee must request a formal administrative hearing as described in Subchapter F of this chapter (relating to Contested Cases) within 30 days of the action complained of.
§401.23.Examination Waiver Request.
(a) An individual who is required to take a Commission examination pursuant to §439.15 of this title (relating to Testing for Proof of Proficiency) or §439.17 of this title (relating to Testing for Certification Status) may petition the Commission for a waiver of the examination if the person's certificate or eligibility expired because of a good faith clerical error on the part of the individual or an employing entity.
(b) The waiver request must include a sworn statement together with any supporting documentation that evidences the applicant's good faith efforts to comply with Commission requirements and that failure to comply was due to circumstances beyond the control of the certificate holder or applicant.
(c) Commission staff shall schedule a conference with the applicant in accordance with §401.41 of this title (relating to Preliminary Staff Conference) to discuss the waiver request within 30 days of the request, or as soon as practical. The applicant may accept or reject the settlement recommendations of the Commission staff. If the examinee rejects the proposed agreement, the applicant must request a formal administrative hearing as described in Subchapter F of this chapter (relating to Contested Cases) within 30 days of the action complained of.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 29, 2007.
TRD-200702766
Gary L. Warren, Sr.
Executive Director
Texas Commission on Fire Protection
Effective date: July 19, 2007
Proposal publication date: May 4, 2007
For further information, please call: (512) 936-3838
These amendments are adopted under §419.022(b) of the Texas Government Code.
§401.31.Disciplinary Proceedings in Contested Cases.
(a) If the Commission staff recommends administrative penalties or any other sanction pursuant to Chapter 445 of this title (relating to Administrative Inspections and Penalties) or §401.105 of this title, (relating to Administrative Penalties) for alleged violations of laws or rules administered or enforced by the Commission and its staff, the respondent may request a preliminary staff conference in accordance with §401.41 of this title (relating to Preliminary Staff Conference).
(b) Commission staff shall schedule a conference with the applicant in accordance with §401.41 of this title (relating to Preliminary Staff Conference) to discuss the alleged violations of laws or rules within 30 days of the request or as soon as practical. The respondent may accept or reject the settlement recommendations of the Commission staff. If the respondent rejects the proposed agreement, the respondent must request a formal administrative hearing as described in Subchapter F of this chapter (relating to Contested Cases) within 30 days of the notice of the staff's recommended disciplinary action.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 29, 2007.
TRD-200702767
Gary L. Warren, Sr.
Executive Director
Texas Commission on Fire Protection
Effective date: July 19, 2007
Proposal publication date: May 4, 2007
For further information, please call: (512) 936-3838
These amendments are adopted under §419.022(b) of the Texas Government Code.
§401.51.Preliminary Notice and Opportunity for Hearing.
(a) In General. Except as otherwise provided by law, the procedure for the grant, denial, renewal, revocation, suspension, annulment, or withdrawal of a certificate is governed by Government Code, Chapter 2001, pertaining to Administrative Procedures and by 1 TAC Chapter 155 (relating to Rules of Procedures) adopted by SOAH effective January 2, 1998.
(b) Preliminary Notice. A revocation, suspension, annulment, or withdrawal of a certificate or license is not effective unless, before the institution of agency proceedings, the holder of the certificate receives preliminary notice of the facts or conduct alleged to warrant the intended action and an opportunity to show compliance with all requirements of law, as required by Government Code, §2001.054(c).
(c) Staff Conference. The holder of the certificate may request a conference with the Commission's staff for the purpose of showing compliance with all requirements of law, or to discuss informal disposition of any complaint or contested case, pursuant to the Government Code, §419.906(c) and §2001.056, and the procedures provided in §401.41 of this title (relating to Preliminary Staff Conference).
(d) Request for Hearing. Except as otherwise provided by law, if an applicant's original application or request for certificate is denied, he or she shall have 30 days from the date of denial to make a written request for a hearing, and if so requested, the hearing will be granted and the provisions of the APA and this chapter with regard to contested cases shall apply.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 29, 2007.
TRD-200702768
Gary L. Warren, Sr.
Executive Director
Texas Commission on Fire Protection
Effective date: July 19, 2007
Proposal publication date: May 4, 2007
For further information, please call: (512) 936-3838
These amendments are adopted under §419.022(b) of the Texas Government Code.
§401.101.Conduct and Decorum.
(a) Standard of conduct during adjudicative proceedings.
(1) The hearings officer and the party representative should refer to the Texas Disciplinary Rules of Professional Conduct for guidance, regardless of whether all participants are licensed attorneys (Texas State Bar Rules, Article 10, §9).
(2) Party representatives shall maintain high standards of professionalism during the administrative process and promote an atmosphere of civility and fairness.
(3) A party representative shall use these rules for legitimate purposes and not for dilatory purposes or to harass or intimidate other participants.
(b) Exclusion or disqualification of party representatives.
(1) Contemptuous conduct. A hearings officer may exclude or disqualify a party representative from participating in an agency hearing for contemptuous conduct. The hearings officer shall warn the party representative prior to exclusion, if possible. Contemptuous conduct includes:
(A) actual or threatened physical assault of any participant to the proceeding;
(B) knowingly or recklessly making a false statement of material fact or law to the hearings officer;
(C) counseling or assisting a witness to testify falsely;
(D) knowingly or recklessly offering or using false evidence;
(E) filing a frivolous or knowingly false pleading or other document, or filing a frivolous or knowingly false defense. A frivolous filing is one:
(i) primarily for the purpose of harassing or maliciously injuring another person; or
(ii) for which the party representative is unable to make a good faith argument for an extension, modification, or reversal of existing law;
(F) paying, offering to pay, or acquiescing in a payment or offer of payment to a witness based on the content of the witness' testimony or the outcome of the proceeding;
(G) continually violating an established rule of agency procedure or of evidence;
(H) raising superfluous objections or otherwise unreasonably delaying the proceeding or increasing the costs or other burden of the proceeding;
(I) misrepresenting, mischaracterizing, or misquoting facts or law to gain unfair advantage;
(J) except as otherwise permitted by law, communicating or causing someone else to communicate with the hearings officer without the knowledge and consent of opposing party representatives in order to gain unfair advantage or to influence the proceeding;
(K) using vulgar or abusive language during the proceeding; and
(L) engaging in disruptive conduct.
(2) Conflicts of interest. A hearings officer may disqualify a party representative from participating in a proceeding if the hearings officer decides that the party representative has a conflict of interest. Conflicts of interest can be, but are not limited to, the following:
(A) when a party representative who previously acted as a public officer or employee on a matter later attempts to represent a private client on the same matter, unless the appropriate government agency consents;
(B) when a party representative who serves as a public officer or employee on a matter negotiates for private employment with a party or party representative involved in the same matter;
(C) when a party representative who serves as a public officer or employee participates in a matter involving a former private client whom he or she represented on the same matter, unless no one may legally act in the attorney's stead;
(D) when an attorney engages in the practice of law while under suspension or in violation of a disciplinary order or judgment; and
(E) any other conflict of interest that, in the opinion of the hearings officer, offends the dignity and decorum of the proceeding.
(3) Procedures for excluding or disqualifying a party representative.
(A) Notice. The hearings officer shall state the specific reason for excluding or disqualifying a party representative on the record or in a written order. The hearings officer shall notify the affected party and representative of the exclusion or disqualification personally or by certified mail.
(B) Reasonable time for substitution. After the hearings officer has excluded or disqualified a party representative, the affected party or party representative shall have reasonable time to appeal to the executive director. If the exclusion or disqualification order is sustained, the party shall have a reasonable time to substitute a new representative. In determining a reasonable time, the hearings officer shall consider the right of opposing parties to have the proceeding resolved without undue delay. The hearings officer may therefore align the affected party with another party in interest instead of permitting a substitution.
(C) Appeal of exclusion or disqualification. A party or party representative may appeal the exclusion (if it is for a period of more than eight hours) or disqualification to the executive director pursuant to §401.47 of this title (relating to Appeal of an Interim Order).
(D) No further participation. After being disqualified from the proceeding, a party representative may not provide further assistance, either directly or indirectly, to any party with regard to the proceeding, except to the extent reasonably necessary to make an appeal of the disqualification order pursuant to §401.47 of this title (relating to Appeal of an Interim Order) and to complete the withdrawal and substitution of a new party representative.
(E) No recusal. The exclusion or disqualification of a party representative by a hearings officer is not a ground for recusal of the hearings officer in the same or any subsequent proceeding.
§401.103.Discovery Sanctions.
(a) After notice and opportunity for hearing, an order imposing sanctions, as are just, may be issued by the hearings officer for failure to comply with a discovery order or subpoena issued pursuant to a Commission for deposition or production of books, records, papers, or other objects. The order imposing sanctions may:
(1) disallow any further discovery of any kind or of a particular kind of disobedient party;
(2) require the party, the party's representative, or both to obey the discovery order;
(3) require the party, the party's representative, or both to pay reasonable expenses, including attorney fees, incurred by reason of the party's noncompliance;
(4) direct that the matters regarding which the discovery order was made shall be deemed established in accordance with the claim of the party obtaining the order;
(5) refuse to allow the disobedient party to support or oppose designated claims or defenses or prohibit the party from introducing designated matters into evidence;
(6) strike pleadings or parts thereof or abate further proceedings until the order is obeyed; or
(7) dismiss the action or proceeding or any part thereof or render a decision by default against the disobedient party.
(b) Appellate Review. Any discovery order or subpoena and any order imposing sanctions issued by the hearings officer is subject to review by an appeal to the executive director in accordance with §401.47 of this title (relating to Appeal of an Interim Order).
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 29, 2007.
TRD-200702769
Gary L. Warren, Sr.
Executive Director
Texas Commission on Fire Protection
Effective date: July 19, 2007
Proposal publication date: May 4, 2007
For further information, please call: (512) 936-3838
Subchapter D. CERTIFIED TRAINING FACILITIES
The Texas Commission on Fire Protection adopts new §427.413, concerning Liabilities. This new section is adopted with changes to the proposed text as published in the May 4, 2007, issue of the Texas Register (32 TexReg 2458) and will be republished.
The new section has been added to new Subchapter D and clarifies the Curriculum and Testing, Equipment and Facilities and Insurance Coverage for approved fire academies throughout the state of Texas.
No comments were received from the public regarding the proposed new section.
This new section is adopted under Texas Government Code, §419.028.
§427.413.Liabilities.
(a) Curriculum and Testing.
(1) The school shall be able to provide license agreements with the publisher of any curriculum used. The school may not reproduce the curriculum, or any part thereof, without describing the purpose or having the written consent by said publisher.
(2) The school shall be able to provide a valid purchase receipt or license agreement of any published test banks, or any part thereof, used in the evaluation process of any course taught.
(b) Equipment and Facilities.
(1) The school shall be able to provide written agreements for the use of any equipment not owned by the school, but used during the instruction of any student. The agreement shall dictate the terms, liability, fees, and availability of maintenance records of such equipment.
(2) The school shall be able to provide written agreements of the use of any facilities or area, not otherwise public, but used during the instruction of any student. The agreement shall dictate the terms, liability, and fees of such facilities or area.
(c) Insurance Coverage. The school shall be able to provide a general liability policy issued by a company licensed to do business in the State of Texas.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 29, 2007.
TRD-200702761
Gary L. Warren, Sr.
Executive Director
Texas Commission on Fire Protection
Effective date: July 19, 2007
Proposal publication date: May 4, 2007
For further information, please call: (512) 936-3838
The Texas Commission on Fire Protection (Commission) adopts an amendment to §435.21, concerning Fire Service Joint Labor Management Wellness-Fitness Initiative. The amendment to §435.21 is adopted with changes to the proposed text published in the May 4, 2007, issue of the Texas Register (32 TexReg 2459) and will be republished.
The purpose of the adopted amendment is to eliminate subsection (e) relating to the effective date in which a fire department may have to put into place a written standard operating procedure made available to the Commission upon inspection, to correct any grammatical errors, punctuation errors and to capitalize the letter "c" in commission when referring to the Texas Commission on Fire Protection.
No comments were received from the public regarding the proposed amendment.
The amendment is adopted under Texas Government Code, §419.008, which provides the Commission with the authority to adopt rules for the administration of its powers and duties.
§435.21.Fire Service Joint Labor Management Wellness-Fitness Initiative.
(a) A fire department shall assess the wellness and fitness needs of the personnel in the department. The procedure used to make this assessment shall be written and made available for Commission inspection.
(b) A fire department shall develop and maintain a standard operating procedure to address those needs.
(c) The approach to the fitness needs of the department shall be based on the local assessment and local resources.
(d) The standard operating procedure shall be made available to the Commission for inspection.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 29, 2007.
TRD-200702762
Gary L. Warren, Sr.
Executive Director
Texas Commission on Fire Protection
Effective date: July 19, 2007
Proposal publication date: May 4, 2007
For further information, please call: (512) 936-3838
The Texas Commission on Fire Protection (the Commission) adopts an amendment to §437.7, concerning Standards Manual and Certification Curriculum Manual Fees. This amendment is adopted with changes to the proposed text as published in the May 4, 2007, issue of the Texas Register (32 TexReg 2459) and will be republished.
The purpose of the adoption of this amendment is an address change to Thomson West Group and to make any grammatical or punctuation corrections, and to capitalize the word "c" in commission when referring to the Texas Commission on Fire Protection.
No comments were received from the public regarding the proposed amendment.
This amendment is adopted under §419.022(b) of the Texas Government Code.
§437.7.Standards Manual and Certification Curriculum Manual Fees.
(a) A fee of $12 will be charged for the compact disk containing the Commission's Standards Manual for Fire Protection Personnel and the Certification Curriculum Manual.
(b) A $12 annual compact disk subscription fee will be charged to receive revisions. The compact disk subscription will contain an entire revision of both manuals.
(c) The Commission does not provide printed copies of the manuals. A printed copy of the Commission's standards may be obtained from Thomson West, 610 Opperman Drive, Eagan, MN 55123, (800) 328-9352, by requesting "Title 37, Public Safety and Corrections" of the Texas Administrative Code. The web address for Thomson West is www.thomsonwest.com.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 29, 2007.
TRD-200702763
Gary L. Warren, Sr.
Executive Director
Texas Commission on Fire Protection
Effective date: July 19, 2007
Proposal publication date: May 4, 2007
For further information, please call: (512) 936-3838
The Texas Commission on Fire Protection (Commission) adopts the amendments to §447.1, concerning Minimum Standards for Part-Time Fire Protection Employees; and §447.3, concerning Minimum Standards for Advanced Levels of Part-Time Certification. The amendment to §447.1 is adopted with changes to the proposed text as published in the May 4, 2007, issue of the Texas Register (32 TexReg 2460) and will be republished. The amendment to §447.3 is adopted without changes to the proposed text as published and will not be republished.
The purpose of the adopted amendments is to update and correct any discrepancies in the rules and to eliminate the word "Advanced." There are only "Higher" levels of certification, not "Advanced" levels. The amendments are also adopted to correct any grammatical or punctuation errors and to capitalize the letter "c" in commission when referring to the Texas Commission on Fire Protection.
No comments were received from the public regarding the proposed amendments.
The amendments are adopted under §419.022(b) of the Texas Government Code.
§447.1.Minimum Standards for Part-Time Fire Protection Employees.
(a) Regulated entities that appoint part-time fire protection employees are subject to the same Commission rules that apply to fire departments as defined in §421.5(18) of this title.
(b) Part-time fire protection employees are subject to the same Commission rules that apply to full-time fire protection personnel.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 29, 2007.
TRD-200702764
Gary L. Warren, Sr.
Executive Director
Texas Commission on Fire Protection
Effective date: July 19, 2007
Proposal publication date: May 4, 2007
For further information, please call: (512) 936-3838