PART 1. TEXAS BOARD OF ARCHITECTURAL EXAMINERS

CHAPTER 1. ARCHITECTS

SUBCHAPTER A. SCOPE; DEFINITIONS

22 TAC §1.5

The Texas Board of Architectural Examiners proposes an amendment to §1.5 of Chapter 1, Subchapter A, pertaining to defined terms. The amendment adds definitions of the terms "cancellation" and "revocation" as those terms are used in the rules regulating the practice of architecture. The purpose of the amendment is to clarify the rules relating to the termination of an architect's certificate of registration. The amendment also serves to draw a distinction between the cancellation and the revocation of a certificate of registration. The definition of the term "cancellation" conforms the rules to Texas Occupations Code §1051.353 which specifies that an expired certificate of registration is cancelled a specified period of time after it has expired. If the amendment is adopted, the anticipated result would be improved guidance for those who consult the rules. The amendment also revises the definition of the term "reinstatement" to clarify that a cancelled certificate of registration may not be reinstated. The amendment implements Texas Occupations Code Annotated §1051.353 which provides that a certificate cancelled by operation of law cannot be renewed but must be replaced with a new license obtained through the standard licensure process. The amendment is intended to clarify the rules to provide notice that a certificate of registration cancelled by operation of law can not be revived.

Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, has determined that for the first five-year period the amended rule is in effect, there will be no fiscal implications to state or local government.

Ms. Hendricks also has determined that for the first five-year period the amended rule is in effect the public benefits expected as a result of the amended rule are as follows: The rules relating to the practice of architecture will provide clearer guidance regarding the status of a terminated architectural certificate of registration. The amendment also serves to more explicitly implement statutes which provide for the cancellation of a certificate of registration by operation of law. The amended rule will have no impact on small or micro business.

There will be no change in the cost to persons required to comply with the section. The amendment clarifies and implements pre-existing law regarding the termination of a certificate of registration and the circumstances under which it may be reinstated. The amendment does not impose any additional regulatory burden upon businesses or individuals. Therefore, no economic impact statement or flexibility analysis of these amendments is required.

Comments may be submitted to Cathy L. Hendricks, ASID/IIDA, Executive Director, Texas Board of Architectural Examiners, P.O. Box 12337, Austin, Texas 78711-2337.

The amendment to this rule is proposed pursuant to §1051.202 and §1051.353, Texas Occupations Code Annotated which provide the Texas Board of Architectural Examiners with authority to promulgate rules necessary to enforce laws within the agency's jurisdiction and specify the procedures for renewal of a certificate of registration.

The proposed amendment to this rule does not affect any other statutes.

§1.5.Terms Defined Herein.

The following words, terms, and acronyms, when used in this Chapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) The Act--The Architects' Registration Law.

(2) Actual Signature--A personal signature of the individual whose name is signed or an authorized copy of such signature.

(3) Administrative Procedure Act (APA)--Texas Government Code §§2001.001 et seq.

(4) APA--Administrative Procedure Act.

(5) Applicant--An individual who has submitted an application for registration or reinstatement but has not yet completed the registration or reinstatement process.

(6) Architect--An individual who holds a valid Texas architectural registration certificate granted by the Board.

(7) Architect Registration Examination (ARE)--The standardized test that a Candidate must pass in order to obtain a valid Texas architectural registration certificate.

(8) Architect Registration Examination Financial Assistance Fund (AREFAF)--A program administered by the Board which provides monetary awards to Candidates and newly registered Architects who meet the program's criteria.

(9) Architects' Registration Law--Article 249a, Vernon's Texas Civil Statutes, and Chapter 1051, Texas Occupations Code.

(10) Architectural Barriers Act--Article 9102, Vernon's Texas Civil Statutes and Texas Government Code, Chapter 469.

(11) Architectural Intern--An individual enrolled in the Intern Development Program (IDP).

(12) ARE--Architect Registration Examination.

(13) AREFAF--Architect Registration Examination Financial Assistance Fund.

(14) Authorship--The state of having personally created something.

(15) Barrier-Free Design--The design of a building or a facility or the design of an alteration of a building or a facility which complies with the Texas Accessibility Standards, the Americans with Disabilities Act, the Fair Housing Accessibility Guidelines, or similarly accepted standards for accessible design.

(16) Board--Texas Board of Architectural Examiners.

(17) Cancel, Cancellation, or Cancelled--The termination of a Texas architectural registration certificate by operation of law two years after it expires without renewal by the certificate-holder.

(18) [(17)] Candidate--An Applicant approved by the Board to take the ARE.

(19) [(18)] CEPH--Continuing Education Program Hour(s).

(20) [(19)] Chair--The member of the Board who serves as the Board's presiding officer.

(21) [(20)] Construction Documents--Drawings; specifications; and addenda, change orders, construction change directives, and other Supplemental Documents issued by an Architect for the purpose(s) of Regulatory Approval, permitting, or construction.

(22) [(21)] Consultant--An individual retained by an Architect who prepares or assists in the preparation of technical design documents issued by the Architect for use in connection with the Architect's Construction Documents.

(23) [(22)] Contested Case--A proceeding, including a licensing proceeding, in which the legal rights, duties, or privileges of a party are to be determined by a state agency after an opportunity for adjudicative hearing.

(24) [(23)] Continuing Education Program Hour (CEPH)--At least fifty (50) minutes of time spent in an activity meeting the Board's continuing education requirements.

(25) [(24)] Council Certification--Certification granted by NCARB to architects who have satisfied certain standards related to architectural education, training, and examination.

(26) [(25)] Delinquent--A registration status signifying that an Architect

(A) has failed to remit the applicable renewal fee to the Board and

(B) is no longer authorized to Practice Architecture in Texas or use any of the terms restricted by the Architects' Registration Law.

(27) [(26)] Direct Supervision--The amount of oversight by an individual overseeing the work of another whereby the supervisor and the individual being supervised work in close proximity to one another and the supervisor has both control over and detailed professional knowledge of the work prepared under his or her supervision.

(28) [(27)] E-mail Directory--A listing of e-mail addresses

(A) used to advertise architectural services and

(B) posted on the Internet under circumstances where the Architects included in the list have control over the information included in the list.

(29) [(28)] Emeritus Architect (or Architect Emeritus)--An honorary title that may be used by an Architect who has retired from the Practice of Architecture in Texas pursuant to Texas Occupations Code, §1051.357.

(30) [(29)] Energy-Efficient Design--The design of a project and the specification of materials to minimize the consumption of energy in the use of the project. The term includes energy efficiency strategies by design as well as the incorporation of alternative energy systems.

(31) [(30)] Feasibility Study--A report of a detailed investigation and analysis conducted to determine the advisability of a proposed architectural project from a technical architectural standpoint.

(32) [(31)] Good Standing--

(A) a registration status signifying that an Architect is not delinquent in the payment of any fees owed to the Board or

(B) an application status signifying that an Applicant or Candidate is not delinquent in the payment of any fees owed to the Board, is not the subject of a pending TBAE enforcement proceeding, and has not been the subject of formal disciplinary action by an architectural registration board that would provide a ground for the denial of the application for architectural registration in Texas.

(33) [(32)] Governmental Entity--A Texas state agency or department; a district, authority, county, municipality, or other political subdivision of Texas; or a publicly owned Texas utility.

(34) [(33)] Governmental Jurisdiction--A governmental authority such as a state, territory, or country beyond the boundaries of Texas.

(35) [(34)] IDP--The Intern Development Program as administered by NCARB.

(36) [(35)] Inactive--A registration status signifying that an Architect may not Practice Architecture in the State of Texas.

(37) [(36)] Intern Development Program (IDP)--A comprehensive internship program established, interpreted, and enforced by NCARB.

(38) [(37)] Intern Development Training Requirement--Architectural experience necessary for an Applicant to obtain architectural registration by examination in Texas.

(39) [(38)] Institutional Residential Facility--A building intended for occupancy on a 24-hour basis by persons who are receiving custodial care from the proprietors or operators of the building. Hospitals, dormitories, nursing homes and other assisted living facilities, and correctional facilities are examples of buildings that may be Institutional Residential Facilities.

(40) [(39)] Licensed--Registered.

(41) [(40)] Member Board--An architectural registration board that is part of the nonprofit federation of architectural registration boards known as NCARB.

(42) [(41)] NAAB--National Architectural Accrediting Board.

(43) [(42)] National Architectural Accrediting Board (NAAB)--An agency that accredits architectural degree programs in the United States.

(44) [(43)] National Council of Architectural Registration Boards (NCARB)--A nonprofit federation of architectural registration boards from fifty-five (55) states and territories of the United States.

(45) [(44)] NCARB--National Council of Architectural Registration Boards.

(46) [(45)] Nonregistrant--An individual who is not an Architect.

(47) [(46)] Practice Architecture--Perform or do or offer or attempt to do or perform any service, work, act, or thing within the scope of the Practice of Architecture.

(48) [(47)] Practicing Architecture--Performing or doing or offering or attempting to do or perform any service, work, act, or thing within the scope of the Practice of Architecture.

(49) [(48)] Practice of Architecture--A service or creative work applying the art and science of developing design concepts, planning for functional relationships and intended uses, and establishing the form, appearance, aesthetics, and construction details for the construction, enlargement, or alteration of a building or environs intended for human use or occupancy, the proper application of which requires education, training, and experience in those matters.

(A) The term includes:

(i) establishing and documenting the form, aesthetics, materials, and construction technology for a building, group of buildings, or environs intended to be constructed or altered;

(ii) preparing or supervising and controlling the preparation of the architectural plans and specifications that include all integrated building systems and construction details, unless otherwise permitted under Texas Occupations Code, §1051.606(a)(4); and

(iii) observing the construction, modification, or alteration of work to evaluate conformance with architectural plans and specifications described in clause (ii) of this subparagraph for any building, group of buildings, or environs requiring an architect.

(B) The term "practice of architecture" also includes the following activities which, pursuant to Texas Occupations Code §1051.701(a), may be performed by a person who is not registered as an Architect:

(i) programming for construction projects, including identification of economic, legal, and natural constraints and determination of the scope and spatial relationship of functional elements;

(ii) recommending and overseeing appropriate construction project delivery systems;

(iii) consulting, investigating, and analyzing the design, form, aesthetics, materials, and construction technology used for the construction, enlargement, or alteration of a building or environs and providing expert opinion and testimony as necessary;

(iv) research to expand the knowledge base of the profession of architecture, including publishing or presenting findings in professional forums; and

(v) teaching, administering, and developing pedagogical theory in academic settings offering architectural education.

(50) [(49)] Principal--An architect who is responsible, either alone or with other architects, for an organization's Practice of Architecture.

(51) [(50)] Prototypical--From or of an architectural design intentionally created not only to establish the architectural parameters of a building or facility to be constructed but also to serve as a functional model on which future variations of the basic architectural design would be based for use in additional locations.

(52) [(51)] Public Entity--A state, a city, a county, a city and county, a district, a department or agency of state or local government which has official or quasi-official status, an agency established by state or local government though not a department thereof but subject to some governmental control, or any other political subdivision or public corporation.

(53) [(52)] Registered--Licensed.

(54) [(53)] Registrant--Architect.

(55) [(54)] Regulatory Approval--The approval of Construction Documents by the applicable Governmental Entity after a review of the architectural content of the Construction Documents as a prerequisite to construction or occupation of a building or a facility.

(56) [(55)] Reinstatement--The procedure through which a [cancelled, ] Surrendered[,] or revoked Texas architectural registration certificate is restored.

(57) [(56)] Renewal--The procedure through which an Architect pays a periodic fee so that the Architect's registration certificate will continue to be effective.

(58) [(57)] Responsible Charge--That degree of control over and detailed knowledge of the content of technical submissions during their preparation as is ordinarily exercised by registered architects applying the applicable architectural standard of care.

(59) Revocation or Revoked--The termination of an architectural registration certificate by the Board.

(60) [(58)] Rules and Regulations of the Board--22 Texas Administrative Code §§1.1 et seq.

(61) [(59)] Rules of Procedure of SOAH--1 Texas Administrative Code §§155.1 et seq.

(62) [(60)] Secretary-Treasurer--The member of the Board responsible for signing the official copy of the minutes of each Board meeting and maintaining the record of Board members' attendance at Board meetings.

(63) [(61)] SOAH--State Office of Administrative Hearings.

(64) [(62) ] State Office of Administrative Hearings (SOAH)--A Governmental Entity created to serve as an independent forum for the conduct of adjudicative hearings involving the executive branch of Texas government.

(65) [(63)] Supervision and Control--The amount of oversight by an architect overseeing the work of another whereby

(A) the architect and the individual performing the work can document frequent and detailed communication with one another and the architect has both control over and detailed professional knowledge of the work; or

(B) the architect is in Responsible Charge of the work and the individual performing the work is employed by the architect or by the architect's employer.

(66) [(64)] Supplemental Document--A document that modifies or adds to the technical architectural content of an existing Construction Document.

(67) [(65)] Surrender--The act of relinquishing a Texas architectural registration certificate along with all privileges associated with the certificate.

(68) [(66)] Sustainable Design--An integrative approach to the process of design which seeks to avoid depletion of energy, water, and raw material resources; prevent environmental degradation caused by facility and infrastructure developments during their implementation and over their life cycle; and create environments that are livable and promote health, safety and well-being. Sustainability is the concept of meeting present needs without compromising the ability of future generations to meet their own needs.

(69) [(67)] TBAE--Texas Board of Architectural Examiners.

(70) [(68)] TDLR--Texas Department of Licensing and Regulation.

(71) [(69)] Texas Department of Licensing and Regulation (TDLR)--A Texas state agency responsible for the implementation and enforcement of the Texas Architectural Barriers Act.

(72) [(70)] Texas Guaranteed Student Loan Corporation (TGSLC)--A public, nonprofit corporation that administers the Federal Family Education Loan Program.

(73) [(71)] TGSLC--Texas Guaranteed Student Loan Corporation.

(74) [(72)] Vice-Chair--The member of the Board who serves as the assistant presiding officer and, in the absence of the Chair, serves as the Board's presiding officer. If necessary, the Vice-Chair succeeds the Chair until a new Chair is appointed.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 20, 2008.

TRD-200803229

Cathy L. Hendricks, ASID/IIDA

Executive Director

Texas Board of Architectural Examiners

Earliest possible date of adoption: August 3, 2008

For further information, please call: (512) 305-8544

22 TAC §1.65, §1.66

The Texas Board of Architectural Examiners proposes an amendment to §1.65 and §1.66 of Chapter 1, Subchapter D, pertaining to the annual renewal process and reinstatement. The amendment modifies a provision regarding the issuance of a new certificate of registration to a person after his or her previous registration had been cancelled by operation of law. The current rule allows a person from another jurisdiction to receive a new certificate of registration through a reciprocity agreement with the other jurisdiction if the person meets all requirements for reciprocal registration "including the completion a registration examination." The requirements for reciprocal registration specify that a person licensed in another jurisdiction must have become licensed under substantially equivalent licensure requirements applicable in Texas, including examination. Requiring licensees from other jurisdictions to complete the examination again is contrary to the intent of reciprocity agreement and may impede Texas registrants from gaining registration in other jurisdictions. Therefore, the amendment strikes the reference to completing the registration examination from the reciprocity provision. The amendment to §1.66 provides notice that the Board is not permitted to reinstate a certificate of registration that is cancelled by operation of law two years after it expires. The amendment provides for disciplinary action against a person for practicing or using a title unlawfully during a period in which the person's certificate of registration has been expired. The amendment also changes the rule to allow the Board the discretion, under certain circumstances, to reinstate a certificate of registration that has been revoked or surrendered for a period of 5 years or longer. Currently, the rule prohibits the reinstatement of a certificate of registration if it has been revoked, cancelled or surrendered for 5 years or longer. As amended, the Board would have the discretion to reinstate the certificate subject to the same conditions and limitations that may apply to a probated suspension of a certificate of registration. The amendments would eliminate the use of the term "cancelled" in two different contexts to remove a confusing aspect of the current rule. The amendments would clarify that the Board is unable under law to reinstate a certificate of registration that has been cancelled by operation of law and allows the Board greater discretion to reinstate a certificate of registration that was terminated under circumstances other than cancellation by operation of law.

Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, has determined that for the first five-year period the amended rules are in effect, there would be no fiscal impact on state and local government.

Ms. Hendricks has also determined that for the first five-year period the amended rules are in effect the public benefits expected as a result of the amended rules are as follows: eliminating the examination requirement for a person licensed in another jurisdiction will remove a potential obstacle for Texas registrants who seek registration in other jurisdictions. Since licensees in other jurisdictions and registrants in Texas must pass an examination to obtain licensure, the amendment would allow greater access to licensure and allow consumers greater options for services without diminishing the protection of the public health, safety and welfare. The amendments will also allow a person whose registration has been revoked or surrendered for five years or longer an opportunity to reinstate registration, subject to conditions imposed by the Board to protect the public from potential risks from incompetent practices. Finally, the amendments will benefit the public by replacing a relatively obscure provision with a prominent notice that the Board does not have the discretion under law to reinstate a cancelled certificate of registration. The amended rules will have no adverse impact on small or micro business. Therefore, no economic impact statement or flexibility analysis of these amendments is required.

There will be no change in the cost to persons required to comply with the sections.

Comments may be submitted to Cathy L. Hendricks, ASID/IIDA, Executive Director, Texas Board of Architectural Examiners, P.O. Box 12337, Austin, Texas 78711-2337.

The amendments to these rules are proposed pursuant to §§1051.202, 1051.305, and 1051.353(d) of Texas Occupations Code Annotated which provide the Texas Board of Architectural Examiners the authority to promulgate rules, including rules related to registration, and which allow the Board the authority to waive any prerequisite for registration for an out-of-state registrant from a jurisdiction which has substantially equivalent licensing requirements and a reciprocity agreement with Texas and which provide that a person whose registration has been cancelled by operation of law may obtain a new certificate of registration by complying with the requirements and procedures for obtaining an original certificate, which would include procedures for obtaining an original certificate through reciprocity.

The proposed amendments to these rules do not affect any other statutes.

§1.65.Annual Renewal Procedure.

(a) - (f) (No change.)

(g) If a registration is not renewed within 2 years after the specified registration expiration date, the registration shall be cancelled by operation of law on the two-year anniversary of its expiration without an opportunity for a formal hearing. If a registration is cancelled pursuant to this subsection, the registration may not be reinstated. In order to obtain a new certificate of registration, a person whose registration was cancelled pursuant to this subsection must:

(1) submit an application for registration and satisfy all requirements for registration pursuant to §1.21 of this title (relating to Registration by Examination) [Section 1.21], including the successful completion of the registration examination;

(2) submit an application for registration by reciprocal transfer and satisfy all requirements for registration by reciprocal transfer pursuant to §1.22 of this title (relating to Registration by Reciprocal Transfer) [ Section 1.22, including the successful completion of the registration examination]; or

(3) submit an application for registration and demonstrate that he/she moved to another state and is currently licensed or registered and has been in practice in the other state for at least the 2 years immediately preceding the date of the application.

§1.66.Reinstatement.

(a) Once the revocation[, cancellation,] or Surrender [surrender] of an Architect's registration is effective, the registration may be reinstated only after an application for reinstatement is properly submitted and approved and the prescribed reinstatement fee is paid. THE BOARD IS NOT PERMITTED TO REINSTATE A CERTIFICATE OF REGISTRATION WHICH IS CANCELLED BY OPERATION OF LAW DUE TO THE REGISTRANT'S FAILURE TO RENEW THE REGISTRATION WITHIN 2 YEARS AFTER ITS DESIGNATED EXPIRATION DATE.

(b) If a reinstatement Applicant has practiced architecture unlawfully or used any form of the title "architect" in violation of the Architects' Registration Law since the effective date of the expiration of the Applicant's revoked registration [ revocation, cancellation,] or the Surrender [ surrender] of the Applicant's registration, the reinstatement fee to be paid upon approval of the application shall include an amount equal to the sum of the registration renewal fees for each year since the effective date of the expiration [revocation, cancellation,] or Surrender. [surrender.]

(c) An application for reinstatement may be denied on the following grounds:

[(1) the registration has been revoked for a continuous period of five (5) years or longer;]

(1) [(2)] the reinstatement Applicant has performed an act, omitted an act or allowed an omission, or otherwise engaged in a practice that could serve as the basis for the rejection of an application for registration or for the revocation of a registration; or

(2) [(3)] the registration was voluntarily Surrendered [surrendered] in lieu of potential disciplinary action and the Board finds that the approval of the reinstatement application does not appear to be in the public's interest.

(d) If at least five (5) years have passed since the effective date of the revocation[, cancellation,] or Surrender [surrender] of a registration, the Board may reinstate the registration fully or subject to a probated suspension under any of the terms and conditions listed in §1.234(c) of this title (relating to Suspension of Registration). In order for the Board to approve an application for reinstatement of a registration which has been revoked or Surrendered for five (5) years or longer, an Applicant shall file [one of] the following with the [shall be required prior to approval of an ] application for reinstatement:

(1) proof of successful completion of all sections of the current registration examination during the five (5) years immediately preceding reinstatement; [or]

(2) proof [verification] that the Applicant currently holds an architectural registration that is active and in good standing in another jurisdiction where the registration requirements are substantially equivalent to Texas architectural registration requirements; or[.]

(3) An affidavit of one or more Architects attesting that the Applicant has satisfactorily engaged in the Practice of Architecture under the Supervision and Control of the Architect(s) since the effective date of the expiration or Surrender of the Applicant's registration, and proof that the Applicant has fulfilled the continuing education requirements the Applicant would have been required to fulfill as a Registrant during each year since the effective date of the revocation or Surrender of the Applicant's registration.

(e) If a registration was revoked as a result of disciplinary action or Surrendered [surrendered] in lieu of disciplinary action, the registration shall not be reinstated unless the Applicant:

(1) demonstrates that the Applicant has taken reasonable steps to correct the misconduct or deficiency that led to the revocation or Surrender; [surrender;]

(2) demonstrates that approval of the application is not inconsistent with the Board's duty to protect the public by ensuring that registrants are duly qualified and fit for registration; and

(3) pays all fees and costs incurred by the Board as a result of any proceeding that led to the revocation or Surrender. [surrender.]

[(f) If a registration is cancelled by operation of law due to the Registrant's failure to renew the registration within 2 years after its designated expiration date, the registration may not be reinstated.]

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 20, 2008.

TRD-200803230

Cathy L. Hendricks, ASID/IIDA

Executive Director

Texas Board of Architectural Examiners

Earliest possible date of adoption: August 3, 2008

For further information, please call: (512) 305-8544

SUBCHAPTER A. SCOPE; DEFINITIONS

22 TAC §3.5

The Texas Board of Architectural Examiners proposes an amendment to §3.5 of Chapter 3, Subchapter A, pertaining to defined terms. The amendment adds definitions of the terms "cancellation" and "revocation" as those terms are used in the rules regulating the practice of landscape architecture. The purpose of the amendment is to clarify the rules relating to the termination of a landscape architect's license. The amendment also serves to draw a distinction between the cancellation and the revocation of a license. The definition of the term "cancellation" conforms the rules to Texas Occupations Code §1051.353 which specifies that an expired license is cancelled 2 years after it expires. If the amendment is adopted, the anticipated result would be to provide greater guidance for those who consult the rules. The amendment also revises the definition of the term "reinstatement" to clarify that a cancelled license may not be reinstated. The amendment implements Texas Occupations Code Annotated §1051.353 which provides that a license cancelled by operation of law cannot be renewed but must be replaced with a new license obtained through the standard licensure process. The amendment is intended to clarify the rules to provide notice that a license cancelled by operation of law can not be revived.

Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, has determined that for the first five-year period the amended rule is in effect, there will be no fiscal implications to state or local government.

Ms. Hendricks has also determined that for the first five-year period the amended rule is in effect the public benefits expected as a result of the amended rule are as follows: The rules relating to the practice of landscape architecture will provide clearer guidance regarding the status of a terminated landscape architectural certificate of registration. The amendment also serves to more explicitly implement statutes which provide for the cancellation of a certificate of registration by operation of law. The amended rule will have no impact on small or micro business.

There will be no change in the cost to persons required to comply with the section. The amendment clarifies and implements pre-existing law regarding the termination of a license and the circumstances under which it may be reinstated. The amendment does not impose any additional regulatory burden upon businesses or individuals. Therefore, no economic impact statement or flexibility analysis of these amendments is required.

Comments may be submitted to Cathy L. Hendricks, ASID/IIDA, Executive Director, Texas Board of Architectural Examiners, P.O. Box 12337, Austin, Texas 78711-2337.

The amendment to this rule is proposed pursuant to §1051.202 and §1051.353, Texas Occupations Code Annotated which provide the Texas Board of Architectural Examiners with authority to promulgate rules necessary to enforce laws within the agency's jurisdiction and specify the procedures for renewal of a license.

The proposed amendment to this rule does not affect any other statutes.

§3.5.Terms Defined Herein.

The following words, terms, and acronyms, when used in this Chapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) The Act--The Landscape Architects' Registration Law.

(2) Actual Signature--A personal signature of the individual whose name is signed or an authorized copy of such signature.

(3) Administrative Procedure Act (APA)--Texas Government Code §§2001.001 et seq.

(4) APA--Administrative Procedure Act.

(5) Applicant--An individual who has submitted an application for registration or reinstatement but has not yet completed the registration or reinstatement process.

(6) Architectural Barriers Act--Article 9102, Vernon's Texas Civil Statutes and Texas Government Code, Chapter 469.

(7) Authorship--The state of having personally created something.

(8) Barrier-Free Design--The design of a facility or the design of an alteration of a facility which complies with the Texas Accessibility Standards, the Americans with Disabilities Act, the Fair Housing Accessibility Guidelines, or similarly accepted standards for accessible design.

(9) Board--Texas Board of Architectural Examiners.

(10) Cancel, Cancellation, or Cancelled--The termination of a Texas landscape architectural registration certificate by operation of law two years after it expires without renewal by the certificate-holder.

(11) [(10)] Candidate--An Applicant approved by the Board to take the LARE.

(12) [(11)] CEPH--Continuing Education Program Hour(s).

(13) [(12)] Chair--The member of the Board who serves as the Board's presiding officer.

(14) [(13)] CLARB--Council of Landscape Architectural Registration Boards.

(15) [(14)] Construction Documents--Drawings; specifications; and addenda, change orders, construction change directives, and other Supplemental Documents issued by a Landscape Architect for the purpose(s) of Regulatory Approval, permitting, or construction.

(16) [(15)] Consultant--An individual retained by a Landscape Architect who prepares or assists in the preparation of technical design documents issued by the Landscape Architect for use in connection with the Landscape Architect's Construction Documents.

(17) [(16)] Contested Case--A proceeding, including a licensing proceeding, in which the legal rights, duties, or privileges of a party are to be determined by a state agency after an opportunity for adjudicative hearing.

(18) [(17)] Continuing Education Program Hour (CEPH)--At least fifty (50) minutes of time spent in an activity meeting the Board's continuing education requirements.

(19) [(18)] Council of Landscape Architectural Registration Boards (CLARB)--An international nonprofit organization whose members are landscape architectural licensing boards of the U.S. states and Canadian provinces that license landscape architects.

(20) [(19)] Delinquent--A registration status signifying that a Landscape Architect

(A) has failed to remit the applicable renewal fee to the Board and

(B) is no longer authorized to practice Landscape Architecture in Texas or use any of the terms restricted by the Landscape Architects' Registration Law.

(21) [(20)] Direct Supervision--The amount of oversight by an individual overseeing the work of another whereby the supervisor and the individual being supervised work in close proximity to one another and the supervisor has both control over and detailed professional knowledge of the work prepared under his or her supervision.

(22) [(21)] E-mail Directory--A listing of e-mail addresses

(A) used to advertise landscape architectural services and

(B) posted on the Internet under circumstances where the Landscape Architects included in the list have control over the information included in the list.

(23) [(22)] Emeritus Landscape Architect (or Landscape Architect Emeritus)--An honorary title that may be used by a Landscape Architect who has retired from the practice of Landscape Architecture in Texas pursuant to §1052.155 of the Texas Occupations Code.

(24) [(23)] Energy-Efficient Design--The design of a project and the specification of materials to minimize the consumption of energy in the use of the project. The term includes energy efficiency strategies by design as well as the incorporation of alternative energy systems.

(25) [(24)] Feasibility Study--A report of a detailed investigation and analysis conducted to determine the advisability of a proposed landscape architectural project from a technical landscape architectural standpoint.

(26) [(25)] Good Standing--

(A) a registration status signifying that a Landscape Architect is not delinquent in the payment of any fees owed to the Board or

(B) an application status signifying that an Applicant or Candidate is not delinquent in the payment of any fees owed to the Board, is not the subject of a pending TBAE enforcement proceeding, and has not been the subject of formal disciplinary action by a landscape architectural registration board that would provide a ground for the denial of the application for landscape architectural registration in Texas.

(27) [(26)] Governmental Entity--A Texas state agency or department; a district, authority, county, municipality, or other political subdivision of Texas; or a publicly owned Texas utility.

(28) [(27)] Governmental Jurisdiction--A governmental authority such as a state, territory, or country beyond the boundaries of Texas.

(29) [(28)] Inactive--A registration status signifying that a Landscape Architect may not practice Landscape Architecture in the State of Texas.

(30) [(29)] LAAB--Landscape Architectural Accreditation Board.

(31) [(30)] Landscape Architect--An individual who holds a valid Texas landscape architectural registration certificate granted by the Board.

(32) [(31)] Landscape Architect Registration Examination (LARE)--The standardized test that a Candidate must pass in order to obtain a valid Texas landscape architectural registration certificate.

(33) [(32)] Landscape Architects' Registration Law--Article 249c, Vernon's Texas Civil Statutes, and Chapter 1052, Texas Occupations Code.

(34) [(33)] Landscape Architectural Accreditation Board (LAAB)--An agency that accredits landscape architectural degree programs in the United States.

(35) [(34)] Landscape Architectural Intern--An individual participating in an internship to complete the experiential requirements for landscape architectural registration in Texas.

(36) [(35)] Landscape Architecture--The art and science of landscape analysis, landscape planning, and landscape design, including the performance of professional services such as consultation, investigation, research, the preparation of general development and detailed site design plans, the preparation of studies, the preparation of specifications, and responsible supervision related to the development of landscape areas for:

(A) the planning, preservation, enhancement, and arrangement of land forms, natural systems, features, and plantings, including ground and water forms;

(B) the planning and design of vegetation, circulation, walks, and other landscape features to fulfill aesthetic and functional requirements;

(C) the formulation of graphic and written criteria to govern the planning and design of landscape construction development programs, including:

(i) the preparation, review, and analysis of master and site plans for landscape use and development;

(ii) the analysis of environmental, physical, and social considerations related to land use;

(iii) the preparation of drawings, construction documents, and specifications; and

(iv) construction observation;

(D) design coordination and review of technical submissions, plans, and construction documents prepared by individuals working under the direction of the Landscape Architect;

(E) the preparation of feasibility studies, statements of probable construction costs, and reports and site selection for landscape development and preservation;

(F) the integration, site analysis, and determination of the location of buildings, structures, and circulation and environmental systems;

(G) the analysis and design of:

(i) site landscape grading and drainage;

(ii) systems for landscape erosion and sediment control; and

(iii) pedestrian walkway systems;

(H) the planning and placement of uninhabitable landscape structures, plants, landscape lighting, and hard surface areas;

(I) the collaboration of Landscape Architects with other professionals in the design of roads, bridges, and structures regarding the functional, environmental, and aesthetic requirements of the areas in which they are to be placed; and

(J) field observation of landscape site construction, revegetation, and maintenance.

(37) [(36)] LARE--Landscape Architect Registration Examination.

(38) [(37)] Licensed--Registered.

(39) [(38)] Member Board--A landscape architectural registration board that is part of CLARB.

(40) [(39)] Nonregistrant--An individual who is not a Landscape Architect.

(41) [(40)] Principal--A Landscape Architect who is responsible, either alone or with other Landscape Architects, for an organization's practice of Landscape Architecture.

(42) [(41)] Prototypical--From or of a landscape architectural design intentionally created not only to establish the landscape architectural parameters of a project but also to serve as a functional model on which future variations of the basic landscape architectural design would be based for use in additional locations.

(43) [(42)] Registrant--Landscape Architect.

(44) [(43)] Regulatory Approval--The approval of Construction Documents by the applicable Governmental Entity after a review of the landscape architectural content of the Construction Documents as a prerequisite to construction of a project.

(45) [(44)] Reinstatement--The procedure through which a [cancelled, ] Surrendered [,] or revoked Texas landscape architectural registration certificate is restored.

(46) [(45)] Renewal--The procedure through which a Landscape Architect pays a periodic fee so that the Landscape Architect's registration certificate will continue to be effective.

(47) [(46)] Responsible charge--That degree of control over and detailed knowledge of the content of technical submissions during their preparation as is ordinarily exercised by registered landscape architects applying the applicable landscape architectural standard of care.

(48) Revocation or Revoked--The termination of a landscape architectural certificate by the Board.

(49) [(47)] Rules and Regulations of the Board--22 Texas Administrative Code §§3.1 et seq.

(50) [(48)] Rules of Procedure of SOAH--1 Texas Administrative Code §§155.1 et seq.

(51) [(49)] Secretary-Treasurer--The member of the Board responsible for signing the official copy of the minutes of each Board meeting and maintaining the record of Board members' attendance at Board meetings.

(52) [(50)] SOAH--State Office of Administrative Hearings.

(53) [(51)] State Office of Administrative Hearings (SOAH)--A Governmental Entity created to serve as an independent forum for the conduct of adjudicative hearings involving the executive branch of Texas government.

(54) [(52)] Supervision and Control--The amount of oversight by a landscape architect overseeing the work of another whereby

(A) the landscape architect and the individual performing the work can document frequent and detailed communication with one another and the landscape architect has both control over and detailed professional knowledge of the work; or

(B) the landscape architect is in Responsible Charge of the work and the individual performing the work is employed by the landscape architect or by the landscape architect's employer.

(55) [(53)] Supplemental Document--A document that modifies or adds to the technical landscape architectural content of an existing Construction Document.

(56) [(54)] Surrender--The act of relinquishing a Texas landscape architectural registration certificate along with all privileges associated with the certificate.

(57) [(55)] Sustainable Design--An integrative approach to the process of design which seeks to avoid depletion of energy, water, and raw material resources; prevent environmental degradation caused by facility and infrastructure development during their implementation and over their life cycle; and create environments that are livable and promote health, safety and well-being. Sustainability is the concept of meeting present needs without compromising the ability of future generations to meet their own needs.

(58) [(56)] Table of Equivalents for Experience in Landscape Architecture--22 Texas Administrative Code §3.191 and §3.192 [§§3.191 and 3.192] (Sections 3.191 and 3.192 of this Chapter).

(59) [(57)] TBAE--Texas Board of Architectural Examiners.

(60) [(58)] TDLR--Texas Department of Licensing and Regulation.

(61) [(59)] Texas Department of Licensing and Regulation (TDLR)--A Texas state agency responsible for the implementation and enforcement of the Texas Architectural Barriers Act.

(62) [(60)] Texas Guaranteed Student Loan Corporation (TGSLC)--A public, nonprofit corporation that administers the Federal Family Education Loan Program.

(63) [(61)] TGSLC--Texas Guaranteed Student Loan Corporation.

(64) [(62)] Vice-Chair--The member of the Board who serves as the assistant presiding officer and, in the absence of the Chair, serves as the Board's presiding officer. If necessary, the Vice-Chair succeeds the Chair until a new Chair is appointed.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 20, 2008.

TRD-200803231

Cathy L. Hendricks, ASID/IIDA

Executive Director

Texas Board of Architectural Examiners

Earliest possible date of adoption: August 3, 2008

For further information, please call: (512) 305-8544

22 TAC §3.65, §3.66

The Texas Board of Architectural Examiners proposes amendments to §3.65 and §3.66 of Chapter 3, Subchapter D, pertaining to the annual renewal process and reinstatement. The amendments modify a provision regarding the issuance of a new certificate of registration to a person after his or her previous registration had been cancelled by operation of law. The current rule allows a person from another jurisdiction to receive a new certificate of registration through a reciprocity agreement with the other jurisdiction if the person meets all requirements for reciprocal registration "including the completion a registration examination." The requirements for reciprocal registration specify that a person licensed in another jurisdiction must have become licensed under substantially equivalent licensure requirements applicable in Texas, including examination. Requiring licensees from other jurisdictions to complete the examination again is contrary to the intent of reciprocity agreement and may impede Texas registrants from gaining registration in other jurisdictions. Therefore, the amendment strikes the reference to completing the registration examination from the reciprocity provision. The amendment to §3.66 provides notice that the Board is not permitted to reinstate a certificate of registration that is cancelled by operation of law because it has expired without being renewed for two years. The amendment provides for disciplinary action against a person for practicing or using a title unlawfully during a period in which the person's certificate of registration has been expired. The amendment also changes the rule to allow the board the discretion, under certain circumstances, to reinstate a certificate of registration that has been revoked or surrendered for a period of 5 years or longer. The rule currently prohibits the reinstatement of a certificate of registration 5 years after it was revoked, cancelled or surrendered. As amended, the board would have the discretion to reinstate the certificate subject to the same conditions and limitations that may apply to the probated suspension of a certificate of registration. The amendments would eliminate the use of the term "cancelled" in two different contexts to remove a confusing aspect of the current rule. The amendments would clarify that the board is unable under law to reinstate a certificate of registration that has been cancelled by operation of law and allows the board greater discretion to reinstate a certificate of registration that was terminated under circumstances other than cancellation by operation of law.

Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, has determined that for the first five-year period the amended rules are in effect, there would be no fiscal impact on state and local government.

Ms. Hendricks has also determined that for the first five-year period the amended rules are in effect the public benefits expected as a result of the amended rules are as follows: eliminating the examination requirement for a person licensed in another jurisdiction will remove a potential obstacle for Texas registrants who seek registration in other jurisdictions. Since licensees in other jurisdictions and registrants in Texas must pass an examination to obtain licensure, the amendments would allow greater access to licensure and allow consumers greater options for services without diminishing the protection of the public health, safety and welfare. The amendments will also allow a person whose registration has been revoked or surrendered for five years or longer an opportunity to reinstate registration, subject to conditions imposed by the board to protect the public from potential risks from incompetent practices. Finally, the amendments will benefit the public by replacing a relatively obscure provision with a prominent notice that the board does not have the discretion under law to reinstate a certificate of registration that has been cancelled by operation of law. The amended rules will have no adverse impact on small or micro business. Therefore, no economic impact statement or flexibility analysis of these amendments is required.

There will be no change in the cost to persons required to comply with the sections.

Comments may be submitted to Cathy L. Hendricks, ASID/IIDA, Executive Director, Texas Board of Architectural Examiners, P.O. Box 12337, Austin, Texas 78711-2337.

The amendments to these rules are proposed pursuant to §§1051.202, 1051.305, and 1051.353(d), Texas Occupations Code Annotated which provide the Texas Board of Architectural Examiners with authority to promulgate rules, including rules related to registration. These laws also allow the board the authority to waive any prerequisite for registration for an out-of-state registrant from a jurisdiction which has substantially equivalent licensing requirements and a reciprocity agreement with Texas and provide that a person whose registration has been cancelled by operation of law may obtain a new certificate of registration by complying with the requirements and procedures for obtaining an original certificate, which would include procedures for obtaining an original certificate through reciprocity.

The proposed amendments to these rules do not affect any other statutes.

§3.65.Annual Renewal Procedure.

(a) - (e) (No change.)

(f) If a registration is not renewed within 2 years after the specified registration expiration date, the registration shall be cancelled by operation of law on the two-year anniversary of its expiration without an opportunity for a formal hearing. If a registration is cancelled pursuant to this subsection, the registration may not be reinstated. In order to obtain a new certificate of registration, a person whose registration was cancelled pursuant to this subsection must:

(1) submit an application for registration and satisfy all requirements for registration pursuant to §3.21 of this title (regarding Registration by Examination [ Section 3.21], including the successful completion of the registration examination;

(2) submit an application for registration by reciprocal transfer and satisfy all requirements for registration by reciprocal transfer pursuant to §3.22 of this title (regarding Registration by Reciprocal Transfer [Section 3.22, including the successful completion of the registration examination]; or

(3) submit an application for registration and demonstrate that he/she moved to another state and is currently licensed or registered and has been in practice in the other state for at least the 2 years immediately preceding the date of the application.

(g) (No change.)

§3.66.Reinstatement.

(a) Once the revocation[, cancellation,] or Surrender of a Landscape Architect's registration is effective, the registration may be reinstated only after an application for reinstatement is properly submitted and approved and the prescribed reinstatement fee is paid. THE BOARD IS NOT PERMITTED TO REINSTATE A CERTIFICATE OF REGISTRATION WHICH IS CANCELLED BY OPERATION OF LAW DUE TO THE REGISTRANT'S FAILURE TO RENEW THE REGISTRATION WITHIN 2 YEARS AFTER ITS DESIGNATED EXPIRATION DATE.

(b) If a reinstatement Applicant has practiced landscape architecture unlawfully or has used the term "landscape architect," the term "landscape architectural," the term "landscape architecture," or any similar term to describe himself/herself or to describe services he/she has offered or provided in Texas since the effective date of the expiration of the Applicant's revoked registration or the Surrender [revocation, cancellation, or Surrender] of the Applicant's registration, the reinstatement fee to be paid upon approval of the application shall include an amount equal to the sum of the registration renewal fees for each year since the effective date of the expiration or Surrender. [ revocation, cancellation, or Surrender.]

(c) An application for reinstatement may be denied on the following grounds:

[(1) the registration has been revoked for a continuous period of five (5) years or longer;]

(1) [(2)] the reinstatement Applicant has performed an act, omitted an act or allowed an omission, or otherwise engaged in a practice that could serve as the basis for the rejection of an application for registration or for the revocation of a registration; or

(2) [(3)] the registration was voluntarily Surrendered [surrendered] in lieu of potential disciplinary action and the Board finds that the approval of the reinstatement application does not appear to be in the public's interest.

(d) If at least five (5) years have passed since the effective date of the revocation [, cancellation, ] or Surrender of a registration, the Board may reinstate the registration fully or subject to a probated suspension under any of the terms and conditions listed in §3.234(c) of this title (regarding Suspension of Registration). In order for the Board to approve an application for reinstatement of a registration which has been revoked or Surrendered for five years or longer, an Applicant shall file [one of] the following with the [shall be required prior to approval of an] application for reinstatement:

(1) proof of successful completion of all sections of the current registration examination during the five (5) years immediately preceding reinstatement; [or]

(2) proof [verification] that the Applicant currently holds a landscape architectural registration that is active and in good standing in another jurisdiction where the registration requirements are substantially equivalent to Texas landscape architectural registration requirements; or[.]

(3) an affidavit of one or more Landscape Architects attesting that the Applicant has satisfactorily engaged in the Practice of Landscape Architecture under the Supervision and Control of the Landscape Architect(s) since the effective date of the expiration or Surrender of the Applicant's registration, and proof that the Applicant has fulfilled the continuing education requirements the Applicant would have been required to fulfill as a Registrant during each year since the effective date of the revocation or Surrender of the Applicant's registration.

(e) If a registration was revoked as a result of disciplinary action or Surrendered [surrendered] in lieu of disciplinary action, the registration shall not be reinstated unless the Applicant:

(1) demonstrates that the Applicant has taken reasonable steps to correct the misconduct or deficiency that led to the revocation or Surrender; [surrender;]

(2) demonstrates that approval of the application is not inconsistent with the Board's duty to protect the public by ensuring that registrants are duly qualified and fit for registration; and

(3) pays all fees and costs incurred by the Board as a result of any proceeding that led to the revocation or Surrender. [surrender.]

[(f) If a registration is cancelled by operation of law due to the Registrant's failure to renew the registration within 2 years after its designated expiration date, the registration may not be reinstated.]

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 20, 2008.

TRD-200803232

Cathy L. Hendricks, ASID/IIDA

Executive Director

Texas Board of Architectural Examiners

Earliest possible date of adoption: August 3, 2008

For further information, please call: (512) 305-8544

SUBCHAPTER A. SCOPE; DEFINITIONS

22 TAC §5.5

The Texas Board of Architectural Examiners proposes an amendment to §5.5 of Chapter 5, Subchapter A, pertaining to defined terms. The amendment adds definitions of the terms "cancellation" and "revocation" as those terms are used in the rules regulating the practice of architecture. The purpose of the amendment is to clarify the rules relating to the termination of an interior designer's certificate of registration. The amendment also serves to draw a distinction between the cancellation and the revocation of a certificate of registration. The definition of the term "cancellation" conforms the rules to Texas Occupational Code §1051.353 which specifies that an expired license is cancelled 2 years after it expires. If the amendment is adopted, the anticipated result would be improved guidance for those who consult the rules. The amendment also changes the definition of the term "reinstatement" to clarify that a cancelled certificate of registration may not be reinstated. The amendment implements Texas Occupational Code Annotated §1051.353 which provides that a certificate of registration cancelled by operation of law cannot be renewed but must be replaced with a new certificate obtained through the standard licensure process. The amendment is intended to clarify the rules to provide notice that a certificate of registration cancelled by operation of law can not be revived.

Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, has determined that for the first five-year period the amended rule is in effect, there will be no fiscal implications to state or local government.

Ms. Hendricks has also determined that for the first five-year period the amended rule is in effect the public benefits expected as a result of the amended rule are as follows: The rules relating to the practice of interior design will provide clearer guidance regarding the status of a terminated certificate of registration. The amendment also serves to more explicitly implement statutes which provide for the cancellation of a certificate of registration by operation of law. The amended rule will have no impact on small or micro business.

There will be no change in the cost to persons required to comply with the section. The amendment clarifies and implements pre-existing law regarding the termination of a certificate of registration and the circumstances under which it may be reinstated. The amendment does not impose any additional regulatory burden upon businesses or individuals. Therefore, no economic impact statement or flexibility analysis of these amendments is required.

Comments may be submitted to Cathy L. Hendricks, ASID/IIDA, Executive Director, Texas Board of Architectural Examiners, P.O. Box 12337, Austin, Texas 78711-2337.

The amendment to this rule is proposed pursuant to §1051.202 and §1051.353, Texas Occupations Code Annotated which provide the Texas Board of Architectural Examiners with authority to promulgate rules necessary to enforce laws within the agency's jurisdiction and specify the procedures for renewal of a certificate of registration.

The proposed amendment to this rule does not affect any other statutes.

§5.5.Terms Defined Herein.

The following words, terms, and acronyms, when used in this Chapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) The Act--The Interior Designers' Registration Law.

(2) Actual Signature--A personal signature of the individual whose name is signed or an authorized copy of such signature.

(3) Administrative Procedure Act (APA)--Texas Government Code §§2001.001 et seq.

(4) APA--Administrative Procedure Act.

(5) Applicant--An individual who has submitted an application for registration or reinstatement but has not yet completed the registration or reinstatement process.

(6) Architectural Interior Construction--A building project that involves only the inside elements of a building and, in order to be completed, necessitates the "practice of architecture" as that term is defined in 22 Texas Administrative Code §1.5.

(7) Authorship--The state of having personally created something.

(8) Barrier-Free Design--The design of a facility or the design of an alteration of a facility which complies with the Texas Accessibility Standards, the Americans with Disabilities Act, the Fair Housing Accessibility Guidelines, or similarly accepted standards for accessible design.

(9) Board--Texas Board of Architectural Examiners.

(10) Cancel, Cancellation, or Cancelled--The termination of a Texas interior design registration certificate by operation of law two years after it expires without renewal by the certificate-holder.

(11) [(10)] Candidate--An Applicant approved by the Board to take the interior design registration examination.

(12) [(11)] CEPH--Continuing Education Program Hour(s).

(13) [(12)] Chair--The member of the Board who serves as the Board's presiding officer.

(14) [(13)] Construction Documents--Drawings; specifications; and addenda, change orders, construction change directives, and other Supplemental Documents issued by an Interior Designer for the purpose(s) of Regulatory Approval, permitting, or construction.

(15) [(14)] Consultant--An individual retained by an Interior Designer who prepares or assists in the preparation of technical design documents issued by the Interior Designer for use in connection with the Interior Designer's Construction Documents.

(16) [(15)] Contested Case--A proceeding, including a licensing proceeding, in which the legal rights, duties, or privileges of a party are to be determined by a state agency after an opportunity for adjudicative hearings.

(17) [(16)] Continuing Education Program Hour (CEPH)--At least fifty (50) minutes of time spent in an activity meeting the Board's continuing education requirements.

(18) [(17)] Delinquent--A registration status signifying that an Interior Designer

(A) has failed to remit the applicable renewal fee to the Board and

(B) is no longer authorized to use the title "interior designer" or the term "interior design" in Texas.

(19) [(18)] Direct Supervision--The amount of oversight by an individual overseeing the work of another whereby the supervisor and the individual being supervised work in close proximity to one another and the supervisor has both control over and detailed professional knowledge of the work prepared under his or her supervision.

(20) [(19)] E-mail Directory--A listing of e-mail addresses

(A) used to advertise interior design services and

(B) posted on the Internet under circumstances where the Interior Designers included in the list have control over the information included in the list.

(21) [(20)] Emeritus Interior Designer (or Interior Designer Emeritus)--An honorary title that may be used by an Interior Designer who has retired from the practice of Interior Design in Texas pursuant to §1053.156 of the Texas Occupations Code.

(22) [(21)] Energy-Efficient Design--The design of a project and the specification of materials to minimize the consumption of energy in the use of the project. The term includes energy efficiency strategies by design as well as the incorporation of alternative energy systems.

(23) [(22)] Feasibility Study--A report of a detailed investigation and analysis conducted to determine the advisability of a proposed interior design project from a technical interior design standpoint.

(24) [(23)] FIDER--Foundation for Interior Design Education Research.

(25) [(24)] Foundation for Interior Design Education Research (FIDER)--An agency that sets standards for postsecondary interior design education and evaluates college and university interior design programs.

(26) [(25)] Good Standing--

(A) a registration status signifying that an Interior Designer is not delinquent in the payment of any fees owed to the Board or

(B) an application status signifying that an Applicant or Candidate is not delinquent in the payment of any fees owed to the Board, is not the subject of a pending TBAE enforcement proceeding, and has not been the subject of formal disciplinary action by an interior design registration board that would provide a ground for the denial of the application for interior design registration in Texas.

(27) [(26)] Governmental Jurisdiction--A governmental authority such as a state, territory, or country beyond the boundaries of Texas.

(28) [(27)] Inactive--A registration status signifying that an Interior Designer may not practice Interior Design in the State of Texas.

(29) [(28)] Interior Design--The identification, research, or development of creative solutions to problems relating to the function or quality of the interior environment; the performance of services relating to interior spaces, including programming, design analysis, space planning of non-load-bearing interior construction, and application of aesthetic principles, by using specialized knowledge of interior construction, building codes, equipment, materials, or furnishings; or the preparation of interior design plans, specifications, or related documents about the design of non-load-bearing interior spaces.

(30) [(29)] Interior Designer--An individual who holds a valid Texas interior design registration certificate granted by the Board.

(31) [(30)] Interior Designers' Registration Law--Article 249e, Vernon's Texas Civil Statutes, and Chapter 1053, Texas Occupations Code.

(32) [(31)] Interior Design Intern--An individual participating in an internship to complete the experiential requirements for interior design registration by examination in Texas.

(33) [(32)] Licensed--Registered.

(34) [(33)] Member Board--An interior design registration board that is part of NCIDQ.

(35) [(34)] National Council for Interior Design Qualification (NCIDQ)--A nonprofit organization of state and provincial interior design regulatory agencies and national organizations whose membership is made up in total or in part of interior designers.

(36) [(35)] NCIDQ--National Council for Interior Design Qualification.

(37) [(36)] Nonregistrant--An individual who is not an Interior Designer.

(38) [(37)] Principal--An Interior Designer who is responsible, either alone or with other Interior Designers, for an organization's practice of Interior Design.

(39) [(38)] Registrant--Interior Designer.

(40) [(39)] Regulatory Approval--The approval of Construction Documents by a Governmental Entity after a review of the Interior Design content of the Construction Documents as a prerequisite to construction or occupation of a building or facility.

(41) [(40)] Reinstatement--The procedure through which a [cancelled, ] Surrendered[,] or revoked Texas interior design registration certificate is restored.

(42) [(41)] Renewal--The procedure through which an Interior Designer pays a periodic fee so that the Interior Designer's registration certificate will continue to be effective.

(43) [(42)] Responsible Charge--That degree of control over and detailed knowledge of the content of technical submissions during their preparation as is ordinarily exercised by registered interior designers applying the applicable interior design standard of care.

(44) Revocation or Revoked--The termination of a Texas interior design registration certificate by the Board.

(45) [(43)] Rules and Regulations of the Board--22 Texas Administrative Code §§5.1 et seq.

(46) [(44)] Rules of Procedure of SOAH--1 Texas Administrative Code §§155.1 et seq.

(47) [(45)] Secretary-Treasurer--The member of the Board responsible for signing the official copy of the minutes from each Board meeting and maintaining the record of Board members' attendance at Board meetings.

(48) [(46)] SOAH--State Office of Administrative Hearings.

(49) [(47)] State Office of Administrative Hearings (SOAH)--A Governmental Entity created to serve as an independent forum for the conduct of adjudicative hearings involving the executive branch of Texas government.

(50) [(48)] Supervision and Control--The amount of oversight by an interior designer overseeing the work of another whereby

(A) the interior designer and the individual performing the work can document frequent and detailed communication with one another and the interior designer has both control over and detailed professional knowledge of the work; or

(B) the interior designer is in Responsible Charge of the work and the individual performing the work is employed by the interior designer or by the interior designer's employer.

(51) [(49)] Supplemental Document--A document that modifies or adds to the technical interior design content of an existing Construction Document.

(52) [(50)] Surrender--The act of relinquishing a Texas interior design registration certificate along with all privileges associated with the certificate.

(53) [(51)] Sustainable Design--An integrative approach to the process of design which seeks to avoid depletion of energy, water, and raw material resources; prevent environmental degradation caused by facility and infrastructure development during their implementation and over their life cycle; and create environments that are livable and promote health, safety and well-being. Sustainability is the concept of meeting present needs without compromising the ability of future generations to meet their own needs.

(54) [(52)] Table of Equivalents for Education and Experience in Interior Design--22 Texas Administrative Code §§5.201 et seq. (Sections 5.201 - 5.203 of this Chapter).

(55) [(53)] TBAE--Texas Board of Architectural Examiners.

(56) [(54)] TDLR--Texas Department of Licensing and Regulation.

(57) [(55)] Texas Department of Licensing and Regulation (TDLR)--A Texas state agency responsible for the implementation and enforcement of the Texas Architectural Barriers Act.

(58) [(56)] Texas Guaranteed Student Loan Corporation (TGSLC)--A public, nonprofit corporation that administers the Federal Family Education Loan Program.

(59) [(57)] TGSLC--Texas Guaranteed Student Loan Corporation.

(60) [(58)] Vice-Chair--The member of the Board who serves as the assistant presiding officer and, in the absence of the Chair, serves as the Board's presiding officer. If necessary, the Vice-Chair succeeds the Chair until a new Chair is appointed.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 20, 2008.

TRD-200803233

Cathy L. Hendricks, ASID/IIDA

Executive Director

Texas Board of Architectural Examiners

Earliest possible date of adoption: August 3, 2008

For further information, please call: (512) 305-8544

22 TAC §5.51

The Texas Board of Architectural Examiners proposes an amendment to §5.51 of Chapter 5, Subchapter C, pertaining to requirements for taking the professional exam. Under the rule as it currently exists, an applicant for interior design registration may sit for the registration examination created and administered by the National Council of Interior Design Qualification (the "NCIDQ examination") upon the completion of educational requirements and six months of experience working under the direct supervision of a licensed interior designer. Otherwise, an applicant may sit for the NCIDQ examination after completing the full experience requirements working under the direct supervision of a licensed interior designer or an architect. Some applicants gain experience working in jurisdictions that do not license interior designers and, therefore, cannot fulfill the requirements to sit for the examination early. Under the proposed amendment, if an applicant is from a jurisdiction where interior designers are not licensed, the applicant may take the examination after working for six months under the direct supervision of a licensed architect or an interior designer who has passed the NCIDQ examination. The effect of the amendment would be to provide an opportunity for some out-of-state applicants to take the examination early under similar circumstances in which Texas applicants may sit for an early examination.

Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, has determined that for the first five-year period the amended rule is in effect, there will be no fiscal impact on state or local government.

Ms. Hendricks has also determined that for the first five-year period the amended rule is in effect the public benefits expected as a result of the amended rule are as follows: As amended, the rule would be more equitable in its treatment of applicants from jurisdictions where interior designers are not licensed. Applicants from the jurisdictions would have a similar means of sitting for the registration examination early. The rule will have no adverse impact on small business. Since the amended rule would have no adverse effect upon small and micro-businesses, the agency is not required to complete an economic impact statement or flexibility analysis.

There will be no change in the cost to persons required to comply with the section.

Comments may be submitted to Cathy L. Hendricks, ASID/IIDA, Executive Director, Texas Board of Architectural Examiners, P.O. Box 12337, Austin, TX 78711-2337.

The amendment to this rule is proposed pursuant to §1051.202 and §1053.155 of the Texas Occupations Code Annotated which provide the Texas Board of Architectural Examiners with authority to promulgate rules and provide the board authority to adopt rules to establish standards for the amount and type of professional experience necessary for eligibility to take the interior design registration examination.

The proposed amendment to this rule does not affect any other statutes.

§5.51.Requirements.

(a) (No change.)

(b) The Board may approve an Applicant to take the NCIDQ examination only after the Applicant has completed the educational requirements for interior design registration by examination in Texas, has completed at least six (6) months of full-time experience working [directly] under the Direct Supervision [ direct supervision] of a licensed interior designer, and has submitted the required application materials. In jurisdictions where interior designers are not licensed, the supervision may be under a licensed architect or an interior designer who has passed the NCIDQ examination.

(c) - (e) (No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 20, 2008.

TRD-200803234

Cathy L. Hendricks, ASID/IIDA

Executive Director

Texas Board of Architectural Examiners

Earliest possible date of adoption: August 3, 2008

For further information, please call: (512) 305-8544

22 TAC §5.75, §5.76

The Texas Board of Architectural Examiners (Board) proposes amendments to §5.75 and §5.76 of Chapter 5, Subchapter D, pertaining to the annual renewal process and reinstatement. The amendments modify a provision regarding the issuance of a new certificate of registration to a person after his or her previous registration had been cancelled by operation of law.

The current §5.75 allows a person from another jurisdiction to receive a new certificate of registration through a reciprocity agreement with the other jurisdiction if the person meets all requirements for reciprocal registration "including the successful completion of the registration examination." The requirements for reciprocal registration specify that a person licensed in another jurisdiction must have become licensed under substantially equivalent licensure requirements applicable in Texas, including examination. Requiring licensees from other jurisdictions to complete the examination again is contrary to the intent of reciprocity agreement and may impede Texas registrants from gaining registration in other jurisdictions. Therefore, the amendment strikes the reference to completing the registration examination from the reciprocity provision.

The amendment to §5.76 provides notice that the Board is not permitted to reinstate a certificate of registration that is cancelled by operation of law two years after its expiration without renewal. The amendment provides for disciplinary action against a person for using a title unlawfully during a period in which the person's certificate of registration has been expired. The amendment also changes the rule to allow the Board the discretion, under certain circumstances, to reinstate a certificate of registration that has been revoked or surrendered for a period of five years or longer. Currently the rule prohibits the reinstatement of a certificate of registration five years after it was revoked, cancelled or surrendered. As amended, the Board would have the discretion to reinstate the certificate subject to the same conditions and limitations that may apply to the probated suspension of a certificate of registration. The amendments would eliminate the use of the term "cancelled" in two different contexts to remove a confusing aspect of the current rule. The amendments would clarify that the Board is unable under law to reinstate a certificate of registration that has been cancelled by operation of law and allows the Board greater discretion to reinstate a certificate of registration that was terminated under circumstances other than cancellation by operation of law.

Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, has determined that for the first five-year period the amended rules are in effect, there would be no fiscal impact on state and local government.

Ms. Hendricks has also determined that for the first five-year period the amended rules are in effect the public benefits expected as a result of the amended rules are as follows: reciprocal registration without examination of a person licensed in another jurisdiction will remove a potential obstacle for Texas registrants who seek registration in other jurisdictions. Since licensees in other jurisdictions and registrants in Texas must pass an examination to obtain licensure, the amendments would allow greater access to licensure and allow consumers greater options for services without diminishing the protection of the public health, safety and welfare. The amendments will also allow a person whose registration has been revoked or surrendered for five years or longer an opportunity to reinstate registration, subject to conditions imposed by the Board to protect the public from potential risks from incompetent practices. Finally, the amendments will benefit the public by replacing a relatively obscure provision with a prominent notice that the Board does not have the discretion under law to reinstate a certificate of registration that has been cancelled by operation of law. The amended rules will have no adverse impact on small or micro business. Therefore, no economic impact statement or flexibility analysis of these amendments is required.

There will be no change in the cost to persons required to comply with the sections.

Comments may be submitted to Cathy L. Hendricks, ASID/IIDA, Executive Director, Texas Board of Architectural Examiners, P.O. Box 12337, Austin, Texas 78711-2337.

The amendments are proposed pursuant to §§1051.202, 1051.305, and 1051.353(d), Texas Occupations Code Annotated which provide the Texas Board of Architectural Examiners with authority to promulgate rules, including rules related to registration. These laws also allow the Board the authority to waive any prerequisite for registration for an out-of-state registrant from a jurisdiction which has substantially equivalent licensing requirements and a reciprocity agreement with Texas and provide that a person whose registration has been cancelled by operation of law may obtain a new certificate of registration by complying with the requirements and procedures for obtaining an original certificate--which would include procedures for obtaining an original certificate through reciprocity.

The proposed amendments do not affect any other statutes.

§5.75.Annual Renewal Procedure.

(a) - (e) (No change.)

(f) If a registration is not renewed within two (2) years after the specified registration expiration date, the registration shall be cancelled by operation of law on the two-year anniversary of its expiration without an opportunity for a formal hearing. If a registration is cancelled pursuant to this subsection, the registration may not be reinstated. In order to obtain a new certificate of registration, a person whose registration was cancelled pursuant to this subsection must:

(1) submit an application for registration and satisfy all requirements for registration pursuant to §5.31 of this title (relating to Registration by Examination) [Section5.31 ], including the successful completion of the registration examination;

(2) submit an application for registration by reciprocal transfer and satisfy all requirements for registration by reciprocal transfer pursuant to §5.32 of this title (relating to Registration by Reciprocal Transfer) [ Section 5.32, including the successful completion of the registration examination]; or

(3) (No change.)

(g) (No change.)

§5.76.Reinstatement.

(a) Once the revocation[, cancellation,] or Surrender [surrender] of an Interior Designer's registration is effective, the registration may be reinstated only after an application for reinstatement is properly submitted and approved and the prescribed reinstatement fee is paid. THE BOARD IS NOT PERMITTED TO REINSTATE A CERTIFICATE OF REGISTRATION WHICH IS CANCELLED BY OPERATION OF LAW DUE TO THE REGISTRANT'S FAILURE TO RENEW THE REGISTRATION WITHIN 2 YEARS AFTER ITS DESIGNATED EXPIRATION DATE.

(b) If a reinstatement Applicant has used the title "interior designer" or the term "interior design" in violation of the Interior Designers' Registration Law since the effective date of the expiration of the Applicant's revoked registration or the Surrender [revocation, cancellation, or surrender] of the Applicant's registration, the reinstatement fee to be paid upon approval of the application shall include an amount equal to the sum of the registration renewal fees for each year since the effective date of the expiration or Surrender. [revocation, cancellation, or surrender.]

(c) An application for reinstatement may be denied on the following grounds:

[(1) the registration has been revoked for a continuous period of five (5) years or longer; or]

(1) [(2)] the reinstatement Applicant has performed an act, omitted an act or allowed an omission, or otherwise engaged in a practice that could serve as the basis for the rejection of an application for registration or for the revocation of a registration; or

(2) [(3)] the registration was voluntarily Surrendered [surrendered] in lieu of potential disciplinary action and the Board finds that the approval of the reinstatement application does not appear to be in the public's interest.

(d) If at least five (5) years have passed since the effective date of the revocation or Surrender [, cancellation, or surrender ] of a registration, the Board may reinstate the registration fully or subject to a probated suspension under any of the terms and conditions listed in §5.244(c) of this title (relating to Suspension of Registration). In order for the Board to approve an application for reinstatement of a registration which has been revoked or Surrendered for five (5) years or longer, an Applicant shall file [one of] the following with the [shall be required prior to approval of an ] application for reinstatement:

(1) proof of successful completion of all sections of the current registration examination during the five (5) years immediately preceding reinstatement; [or]

(2) proof [verification] that the Applicant currently holds an interior design registration that is active and in good standing in another jurisdiction where the registration requirements are substantially equivalent to Texas interior design registration requirements; or[.]

(3) an affidavit of one or more Interior Designers attesting that the Applicant has satisfactorily engaged in the Practice of Interior Design under the Supervision and Control of the Interior Designer(s) since the effective date of the expiration or Surrender of the Applicant's registration and proof that the Applicant has fulfilled the continuing education requirements the Applicant would have been required to fulfill as a Registrant during each year since the effective date of the revocation or Surrender of the Applicant's registration.

(e) (No change.)

[(f) If a registration is cancelled by operation of law due to the Registrant's failure to renew the registration within 2 years after its designated expiration date, the registration may not be reinstated.]

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 20, 2008.

TRD-200803236

Cathy L. Hendricks, ASID/IIDA

Executive Director

Texas Board of Architectural Examiners

Earliest possible date of adoption: August 3, 2008

For further information, please call: (512) 305-8544

22 TAC §7.10

The Texas Board of Architectural Examiners (Board) proposes an amendment to §7.10 of Chapter 7, pertaining to fees. The proposed amendment would reduce fees for emeritus registration renewal. Since the penalty for late renewal is a percentage of the renewal fee, the proposed amendment makes a corresponding reduction to the amount of the penalty. The proposed amendment also modifies the late renewal period to which the penalty would apply in order to conform to legislative changes which extend the period during which an expired registration may be renewed. The amendment also includes the fee that will be charged by the examination provider for a new version of the architectural registration examination which will become available in July 2008. The proposed amendment clarifies that a fee paid by a check which is refused by the bank upon which the check is drawn due to insufficient funds, errors in routing, or errors in the bank account number will be considered unpaid and late penalties or other penalties will accrue upon the unpaid fee. The amendment also eliminates an obsolete fee for review of the landscape architectural registration examination. The amendment is proposed to make the fees for emeritus status less costly for retired registrants and more equitable for out-of-state emeritus registrants. The amendment also serves to reflect the current fees charged by the examination providers and provide notice that the fee paid by a check which is not honored by the bank is not considered paid. If adopted, emeritus fees charged by the Board will be lower and the fee schedule will provide accurate notice of the fees charged under current law and the current examination fees charged by the examination providers.

Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, has determined that for the first five-year period the amended rule is in effect, there will be a reduction in fee revenue to the agency resulting in a negative fiscal impact in the amount of $12,977 per year for each of the first five years after the amendment takes effect. There might be an indeterminable positive fiscal impact to the state resulting from the delay for the cancellation of an expired registration from one to two years. However, this impact results from a change in the statute and not the rule which merely reflects the statutory change. There will be no cost to local government.

Ms. Hendricks has also determined that for the first five-year period the amended rule is in effect the public benefits expected as a result are as follows: a reduction in the cost to retirees to maintain emeritus registration status and clarification of notice to candidates regarding the fee charged by examination providers for the current registration examinations. The rule will also accurately reflect recent legislative changes that provide for the cancellation of an expired certificate of registration two years after it expires in lieu of one year after expiration. The rule will have no adverse impact on small or micro business. Since the rule will not adversely impact small business, the Board is not required to prepare an economic impact statement or flexibility analysis and did not prepare one.

There will be a reduction in the cost to persons required to comply with the section.

Comments may be submitted to Cathy L. Hendricks, ASID/IIDA, Executive Director, Texas Board of Architectural Examiners, P.O. Box 12337, Austin, Texas 78711-2337.

The amendment is proposed pursuant to §§1051.202, 1051.353, 1051.651, 1051.357, 1052.054, 1052.155, 1053.052, and 1053.156 of the Texas Occupations Code Annotated and §14(a) of Article 8930, Texas Civil Statutes Annotated, which provide the Texas Board of Architectural Examiners with authority to promulgate rules, set fees to cover the cost of administering its laws, impose penalties for late renewal of registration, and charge a fee for the registration and renewal as an emeritus registrant.

The proposed amendment does not affect any other statutes.

§7.10.General Fees.

(a) (No change.)

(b) Effective September 1, 2008 [2007], the following fees shall apply to services provided by the Board in addition to any fee established elsewhere by the rules and regulations of the Board or by Texas law:

Figure: 22 TAC §7.10(b)

(c) - (d) (No change.)

(e) If a check is submitted to the Board to pay a fee and the bank upon which the check is drawn refuses to pay the check due to insufficient funds, errors in routing, or bank account number, the fee shall be considered unpaid and any applicable late fees or other penalties accrue. The Board shall impose a processing fee for any check that is returned unpaid by the bank upon which the check is drawn.

(f) (No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 20, 2008.

TRD-200803237

Cathy L. Hendricks, ASID/IIDA

Executive Director

Texas Board of Architectural Examiners

Earliest possible date of adoption: August 3, 2008

For further information, please call: (512) 305-8544

CHAPTER 661. GENERAL RULES OF PROCEDURES AND PRACTICES

SUBCHAPTER A. THE BOARD

22 TAC §661.10

The Texas Board of Professional Land Surveying (TBPLS) proposes an amendment to §661.10, concerning financial requirements. This section identifies what the board's procedures regarding the payment of salaries and operating expenses. The amendment removes language pertaining to the land surveying fund. The amendment will further clarify the financial procedures of the board.

Sandy Smith, Executive Director, has determined that for the first five year period the rule is in effect there will be no fiscal impact to state or local government as a result of enforcing or administering this amendment.

Ms. Smith has also determined that for each year of the first five years the rule is in effect the public will benefit from the rule because it will clarify the financial obligations of the board.

There will be no effect on small or micro businesses that are in compliance with the Board's Act and Rules. There are no anticipated costs to those who are required to comply with the rule as proposed.

Comments on the proposed amendment may be submitted in writing to Sandy Smith, Executive Director, Texas Board of Professional Land Surveying, 12100 Park 35 Circle, Building A, Suite 156, Austin, Texas 78753. Comments may also be faxed to Ms. Smith at the Board at (512) 239-5253 or may be sent electronically to ssmith@txls.state.tx.us. All requests for a public hearing on the proposed amendment submitted under the Administrative Procedure Act must be received by the Executive Director not more than 15 calendar days after notice of the proposed amendment to the section has been published in the Texas Register.

The amendment is proposed pursuant to Title 6, Subtitle C, §1071.151 of the Occupations Code, which authorizes the Board to adopt and enforce reasonable and necessary rules to perform its duties.

The proposed amendment implements the Texas Administrative Code, Title 22, Part 29, Chapter 661, General Rules of Procedures and Practices.

§661.10.Financial.

(a) Payment of all salaries and other approved operating expenses of the board shall be made by itemized vouchers (claims) [on the land surveying fund]. Such vouchers (claims) shall be approved by the executive director of the board. The executive director shall maintain complete records of the financial transactions of the board as prescribed by the state comptroller and by law.

(b) Pursuant to the requirements of [Chapter] §2161.003 of the Government Code, the Texas Board of Professional Land Surveying adopts the rules of the Comptroller of Public Accounts [ Texas Building and Procurement Commission (formerly the General Services Commission)] relating to the Historically Underutilized Business (HUB) Program and stated at 34 [1] Texas Administrative Code[, ] Part 1 [V], Chapter 20 [ 111], Subchapter B, §§20.11 - 20.16 [ §§111.11 - 111.16].

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 23, 2008.

TRD-200803265

Sandy Smith

Executive Director

Texas Board of Professional Land Surveying

Earliest possible date of adoption: August 3, 2008

For further information, please call: (512) 239-5263

22 TAC §661.11

The Texas Board of Professional Land Surveying (TBPLS) proposes an amendment to §661.11, concerning board vacancies. This section identifies what the board's actions will be in case of a board vacancy. The amendment will further clarify the board's procedures.

Sandy Smith, Executive Director, has determined that for the first five year period the rule is in effect there will be no fiscal impact to state or local government as a result of enforcing or administering this amendment.

Ms. Smith has also determined that for each year of the first five years the rule is in effect the public will benefit from the rule because it will clarify the board policy regarding vacancies.

There will be no effect on small or micro businesses that are in compliance with the Board's Act and Rules. There are no anticipated costs to those who are required to comply with the rule as proposed.

Comments on the proposed amendment may be submitted in writing to Sandy Smith, Executive Director, Texas Board of Professional Land Surveying, 12100 Park 35 Circle, Building A, Suite 156, Austin, Texas 78753. Comments may also be faxed to Ms. Smith at the Board at (512) 239-5253 or may be sent electronically to ssmith@txls.state.tx.us. All requests for a public hearing on the proposed amendment submitted under the Administrative Procedure Act must be received by the Executive Director not more than 15 calendar days after notice of the proposed amendment to the section has been published in the Texas Register.

The amendment is proposed pursuant to Title 6, Subtitle C, §1071.151 of the Occupations Code, which authorizes the Board to adopt and enforce reasonable and necessary rules to perform its duties.

The proposed amendment implements the Texas Administrative Code, Title 22, Part 29, Chapter 661, General Rules of Procedures and Practices.

§661.11.Vacancies.

If for any reason, a vacancy shall occur in the board, the chair may [shall] call a special meeting for the purpose of preparing a notice to the governor asking for the appointment of a new member to fill the unexpired term. If the vacancy shall occur in the office of the chair, the vice chair may [shall] call the meeting.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 23, 2008.

TRD-200803266

Sandy Smith

Executive Director

Texas Board of Professional Land Surveying

Earliest possible date of adoption: August 3, 2008

For further information, please call: (512) 239-5263

22 TAC §661.45

The Texas Board of Professional Land Surveying (TBPLS) proposes an amendment to §661.45, concerning examinations. This section identifies the examination process. The amendment will further clarify the examination process.

Sandy Smith, Executive Director, has determined that for the first five year period the rule is in effect there will be no fiscal impact to state or local government as a result of enforcing or administering this amendment.

Ms. Smith has also determined that for each year of the first five years the rule is in effect the public will benefit from the rule because it will clarify the examination process.

There will be no effect on small or micro businesses that are in compliance with the Board's Act and Rules. There are no anticipated costs to those who are required to comply with the rule as proposed.

Comments on the proposed amendment may be submitted in writing to Sandy Smith, Executive Director, Texas Board of Professional Land Surveying, 12100 Park 35 Circle, Building A, Suite 156, Austin, Texas 78753. Comments may also be faxed to Ms. Smith at the Board at (512) 239-5253 or may be sent electronically to ssmith@txls.state.tx.us. All requests for a public hearing on the proposed amendment submitted under the Administrative Procedure Act must be received by the Executive Director not more than 15 calendar days after notice of the proposed amendment to the section has been published in the Texas Register.

The amendment is proposed pursuant to Title 6, Subtitle C, §1071.151 of the Occupations Code, which authorizes the Board to adopt and enforce reasonable and necessary rules to perform its duties.

The proposed amendment implements the Texas Administrative Code, Title 22, Part 29, Chapter 661, General Rules of Procedures and Practices.

§661.45.Examinations.

(a) Registered professional land surveyor examinations shall be written and so designed to aid the board in determining the applicant's knowledge of surveying, mathematics, surveying laws, and his/her general fitness to practice the profession as outlined in the Professional Land Surveying Practices Act. The [examinations will cover a two-day period and the] applicant will be notified at least 10 days in advance of the date, time, duration and place of the examination. If an applicant fails to appear for two successive examinations, the applicant's file will be closed and will not be reopened without the filing of a new application and fee.

(b) Calculators will be permitted to be used during any examination. Only Board approved calculators will be permitted for use during examinations. [Any non-communicating, non-text editing silent, handheld, battery operated, nonprinting calculator will be permitted. Calculating and computing devices having a QWERTY keypad arrangement similar to a typewriter or keyboard are not permitted. Such devices include but are not limited to palmtop, laptop, handheld and desktop computers, calculators, databanks, data collectors, and organizers. Calculators with alphanumeric keypads are permitted.] No communication/imaging device of any type will be permitted, including but not limited to pagers and cellular phones. Devices or materials that might compromise the security of the examination or the examination process are not permitted in the examination room.

(c) - (f) (No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 23, 2008.

TRD-200803267

Sandy Smith

Executive Director

Texas Board of Professional Land Surveying

Earliest possible date of adoption: August 3, 2008

For further information, please call: (512) 239-5263

22 TAC §661.48

(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Board of Professional Land Surveying or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The Texas Board of Professional Land Surveying (TBPLS) proposes the repeal of §661.48, concerning unsuccessful examination. The repeal of this section is to remove language that conflicts with board policy that does not prohibit an applicant from repeating the examination as necessary. The repeal will clarify board policy that enables an applicant to repeat the examination as many times as warranted.

Sandy Smith, Executive Director, has determined that for the first five year period the repeal is in effect there will be no fiscal impact to state or local government as a result of enforcing or administering this repeal.

Ms. Smith has also determined that for each year of the first five years the repeal is in effect the public will benefit from the repeal of the rule because it will remove language regarding unsuccessful examination.

There will be no effect on small or micro businesses that are in compliance with the Board's Act and Rules. There are no anticipated costs to those who are required to comply with the repeal as proposed.

Comments on the repeal may be submitted in writing to Sandy Smith, Executive Director, Texas Board of Professional Land Surveying, 12100 Park 35 Circle, Building A, Suite 156, Austin, Texas 78753. Comments may also be faxed to Ms. Smith at the Board at (512) 239-5253 or may be sent electronically to ssmith@txls.state.tx.us. All requests for a public hearing on the proposed repeal submitted under the Administrative Procedure Act must be received by the Executive Director not more than 15 calendar days after notice of the proposed repeal of the section has been published in the Texas Register.

The repeal is proposed pursuant to Title 6, Subtitle C, §1071.151 of the Occupations Code, which authorizes the Board to adopt and enforce reasonable and necessary rules to perform its duties.

The repeal implements the Texas Administrative Code, Title 22, Part 29, Chapter 661, General Rules of Procedures and Practices.

§661.48.Unsuccessful Examination.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 23, 2008.

TRD-200803268

Sandy Smith

Executive Director

Texas Board of Professional Land Surveying

Earliest possible date of adoption: August 3, 2008

For further information, please call: (512) 239-5263

22 TAC §661.50

The Texas Board of Professional Land Surveying (TBPLS) proposes an amendment to §661.50, concerning the experience that a Surveyor Intern is required to complete.

The amendment will further clarify acceptable surveyor intern experience.

Sandy Smith, Executive Director, has determined that for the first five year period the rule is in effect there will be no fiscal impact to state or local government as a result of enforcing or administering this amendment.

Ms. Smith has also determined that for each year of the first five years the rule is in effect the public will benefit from the rule because it will clarify the type of experience the board will accept in order to satisfy the two years of experience needed prior to examination to be a registered professional land surveyor.

There will be no effect on small or micro businesses that are in compliance with the Board's Act and Rules. There are no anticipated costs to those who are required to comply with the rule as proposed.

Comments on the proposed amendment may be submitted in writing to Sandy Smith, Executive Director, Texas Board of Professional Land Surveying, 12100 Park 35 Circle, Building A, Suite 156, Austin, Texas 78753. Comments may also be faxed to Ms. Smith at the Board at (512) 239-5253 or may be sent electronically to ssmith@txls.state.tx.us. All requests for a public hearing on the proposed amendment submitted under the Administrative Procedure Act must be received by the Executive Director not more than 15 calendar days after notice of the proposed amendment to the section has been published in the Texas Register.

The amendment is proposed pursuant to Title 6, Subtitle C, §1071.151 of the Occupations Code, which authorizes the Board to adopt and enforce reasonable and necessary rules to perform its duties.

The proposed amendment implements the Texas Administrative Code, Title 22, Part 29, Chapter 661, General Rules of Procedures and Practices.

§661.50.Surveyor Intern (SI) Experience Requirements.

The following rules are to be used in evaluating the two years of experience (although some forms provided by the Board may allow an experience breakdown in hours, it is the intent of the Board that the required experience be obtained over a minimum time period of two calendar years) required for the Surveyor in Training, hereinafter referred to as Survey Intern (SI), under the direct supervision of a designated registered professional land surveyor (RPLS) acceptable to the Board:

(1) (No change.)

(2) The TWO years of experience are to be obtained in the area of boundary surveying and boundary determination only. This MINIMUM of two years begins with the date the applicant passes the [ of notification of the successful completion of the] National Council of Examiners for Engineering and Surveying (NCEES) fundamentals of land surveying portion of the examination. Since only boundary related surveying experience will be accepted, the actual time to complete the internship may take longer than two calendar years. Adequate documentation of the conditions of employment as well as the experience gained therein will be required. Regardless of the total number of acceptable hours of experience gained in this manner, a minimum total time of 4,000 hours of experience extended over a minimum of two calendar years will still be required.

(3) - (9) (No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 23, 2008.

TRD-200803269

Sandy Smith

Executive Director

Texas Board of Professional Land Surveying

Earliest possible date of adoption: August 3, 2008

For further information, please call: (512) 239-5263

22 TAC §661.58

The Texas Board of Professional Land Surveying (TBPLS) proposes new §661.58, concerning the Texas Guaranteed Student Loan Corporation Defaulters. This rule was under Chapter 663, Subchapter A, Ethical Standards as §663.12. Section 663.12 is repealed and is being proposed as new §661.58 under Chapter 661, Subchapter D, concerning Applications, Examinations, and Licensing. The new section, concerning registrants who are Texas Guaranteed Student Loan Corporation Defaulters, will be in a more suitable chapter.

Sandy Smith, Executive Director, has determined that for the first five year period the rule is in effect there will be no fiscal impact to state or local government as a result of enforcing or administering this rule.

Ms. Smith has also determined that for each year of the first five years the rule is in effect the public will benefit from the rule because it will be in a more suitable chapter.

There will be no effect on small or micro businesses that are in compliance with the Board's Act and Rules. There are no anticipated costs to those who are required to comply with the rule as proposed.

Comments on the new section may be submitted in writing to Sandy Smith, Executive Director, Texas Board of Professional Land Surveying, 12100 Park 35 Circle, Building A, Suite 156, Austin, Texas 78753. Comments may also be faxed to Ms. Smith at the Board at (512) 239-5253 or may be sent electronically to ssmith@txls.state.tx.us. All requests for a public hearing on the proposed section submitted under the Administrative Procedure Act must be received by the Executive Director not more than 15 calendar days after notice of the proposed section has been published in the Texas Register.

The new section is proposed pursuant to Title 6, Subtitle C, §1071.151 of the Occupations Code, which authorizes the Board to adopt and enforce reasonable and necessary rules to perform its duties.

The new section implements the Texas Administrative Code, Title 22, Part 29, Chapter 661, General Rules of Procedures and Practices.

§661.58.Texas Guaranteed Student Loan Corporation Defaulters.

(a) In accordance with the Texas Education Code, §57.491, holders of licenses as defined in that section who have been identified by the Texas Guaranteed Student Loan Corporation (TGSLC) as student loan defaulters are precluded from having their license renewed unless:

(1) the renewal is the first renewal following the board's receipt of the list including the licensee's name among those in default; or

(2) the licensee presents to the board a certificate issued by the TGSLC certifying that:

(A) the licensee has entered a repayment agreement on the defaulted loan; or

(B) the licensee is not in default on a loan guaranteed by the TGSLC.

(b) Whenever the board has been notified by the TGSLC that a licensee is in default on a student loan the board shall notify the licensee by certified mail of its intention not to renew his/her license upon the license's expiration. The licensee may, in writing within 30 days of receipt of the proposed action, request a hearing. In the absence of such a written request for a hearing the proposed intention not to renew will become final upon informal disposition, pursuant to Title 2, Occupations Code, Chapter 53.

(c) Once the board has received a certificate issued by the TGSLC that:

(1) the licensee has entered a repayment agreement on the defaulted loan; or

(2) the licensee is not in default on a loan guaranteed by the TGSLC, the licensee may apply for his/her license renewal subject to all other requirements for renewal.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 23, 2008.

TRD-200803273

Sandy Smith

Executive Director

Texas Board of Professional Land Surveying

Earliest possible date of adoption: August 3, 2008

For further information, please call: (512) 239-5263

22 TAC §661.62

The Texas Board of Professional Land Surveying (TBPLS) proposes an amendment to §661.62, concerning Filing of Documents. This rule will be retitled to more accurately reflect the subject of the amendment. The new title of the section will clarify the contents of the rule.

Sandy Smith, Executive Director, has determined that for the first five year period the rule is in effect there will be no fiscal impact to state or local government as a result of enforcing or administering this amendment.

Ms. Smith has also determined that for each year of the first five years the rule is in effect the public will benefit from the rule because the new title will clarify the contents of the rule.

There will be no effect on small or micro businesses that are in compliance with the Board's Act and Rules. There are no anticipated costs to those who are required to comply with the rule as proposed.

Comments on the proposed amendment may be submitted in writing to Sandy Smith, Executive Director, Texas Board of Professional Land Surveying, 12100 Park 35 Circle, Building A, Suite 156, Austin, Texas 78753. Comments may also be faxed to Ms. Smith at the Board at (512) 239-5253 or may be sent electronically to ssmith@txls.state.tx.us. All requests for a public hearing on the proposed amendment submitted under the Administrative Procedure Act must be received by the Executive Director not more than 15 calendar days after notice of the proposed amendment to the section has been published in the Texas Register.

The amendment is proposed pursuant to Title 6, Subtitle C, §1071.151 of the Occupations Code, which authorizes the Board to adopt and enforce reasonable and necessary rules to perform its duties.

The proposed amendment implements the Texas Administrative Code, Title 22, Part 29, Chapter 661, General Rules of Procedures and Practices.

§661.62. Complaint Process [ Filing of Documents ].

(a) - (k) (No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 23, 2008.

TRD-200803270

Sandy Smith

Executive Director

Texas Board of Professional Land Surveying

Earliest possible date of adoption: August 3, 2008

For further information, please call: (512) 239-5263

SUBCHAPTER A. ETHICAL STANDARDS

22 TAC §663.12

(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Board of Professional Land Surveying or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The Texas Board of Professional Land Surveying (TBPLS) proposes the repeal of §663.12, concerning Texas Guaranteed Student Loan Corporation Defaulters. This section is being moved to Chapter 661, Subchapter D, Applications, Examinations and Licensing. The repeal will remove this rule from Chapter 663, Subchapter A, Ethical Standards.

Sandy Smith, Executive Director, has determined that for the first five year period the repeal is in effect there will be no fiscal impact to state or local government as a result of enforcing or administering the repeal.

Ms. Smith has also determined that for each year of the first five years the repeal is in effect the public will benefit from the repeal because it will remove the rule from a subchapter where it should not be.

There will be no effect on small or micro businesses that are in compliance with the Board's Act and Rules. There are no anticipated costs to those who are required to comply with the repeal as proposed.

Comments on the repeal may be submitted in writing to Sandy Smith, Executive Director, Texas Board of Professional Land Surveying, 12100 Park 35 Circle, Building A, Suite 156, Austin, Texas 78753. Comments may also be faxed to Ms. Smith at the Board at (512) 239-5253 or may be sent electronically to ssmith@txls.state.tx.us. All requests for a public hearing on the proposed repeal submitted under the Administrative Procedure Act must be received by the Executive Director not more than 15 calendar days after notice of the proposed repeal of the section has been published in the Texas Register.

The repeal is proposed pursuant to Title 6, Subtitle C, §1071.151 of the Occupations Code, which authorizes the Board to adopt and enforce reasonable and necessary rules to perform its duties.

The repeal implements the Texas Administrative Code, Title 22, Part 29, Chapter 661, General Rules of Procedures and Practices.

§663.12.Texas Guaranteed Student Loan Corporation Defaulters.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 23, 2008.

TRD-200803271

Sandy Smith

Executive Director

Texas Board of Professional Land Surveying

Earliest possible date of adoption: August 3, 2008

For further information, please call: (512) 239-5263

22 TAC §663.18

The Texas Board of Professional Land Surveying (TBPLS) proposes an amendment to §663.18, concerning Certifications. This section adds language that had been previously in §663.23, concerning certifying services, under Chapter 663, Subchapter B, Professional and Technical Standards. The amendment will further clarify the certification process.

Sandy Smith, Executive Director, has determined that for the first five year period the rule is in effect there will be no fiscal impact to state or local government as a result of enforcing or administering this amendment.

Ms. Smith has also determined that for each year of the first five years the rule is in effect the public will benefit from the rule because it will add language to clarify the certification process.

There will be no effect on small or micro businesses that are in compliance with the Board's Act and Rules. There are no anticipated costs to those who are required to comply with the rule as proposed.

Comments on the proposed amendment may be submitted in writing to Sandy Smith, Executive Director, Texas Board of Professional Land Surveying, 12100 Park 35 Circle, Building A, Suite 156, Austin, Texas 78753. Comments may also be faxed to Ms. Smith at the Board at (512) 239-5253 or may be sent electronically to ssmith@txls.state.tx.us. All requests for a public hearing on the proposed amendment submitted under the Administrative Procedure Act must be received by the Executive Director not more than 15 calendar days after notice of the proposed amendment to the section has been published in the Texas Register.

The amendment is proposed pursuant to Title 6, Subtitle C, §1071.151 of the Occupations Code, which authorizes the Board to adopt and enforce reasonable and necessary rules to perform its duties.

The proposed amendment implements the Texas Administrative Code, Title 22, Part 29, Chapter 661, General Rules of Procedures and Practices.

§663.18.Certification.

(a) (No change.)

(b) If the land surveyor certifies, or otherwise indicates, that his/her product or service meets a standard of practice in addition to that promulgated by the Texas Board of Professional Land Surveying, then the failure to so meet both standards may be considered by the board, for disciplinary purposes, to be misleading the public.

(c) Preliminary documents released from a land surveyor's control shall identify the purpose of the document, the land surveyor of record and the land surveyor's registration number, and the release date. Such preliminary documents shall not be signed or sealed and shall bear the following statement in the signature space: "Preliminary, this document shall not be recorded for any purpose." Preliminary documents released from the land surveyor's control which include this text in place of the land surveyor's signature need not comply with the other minimum standards promulgated in this chapter.

(d) A land surveyor [Surveyor] shall certify only to factual information that the land surveyor has personal knowledge of or to information within his professional expertise as a land surveyor [Land Surveyor] unless otherwise qualified.

(e) Registered professional land surveyors may certify, using the registrant's signature and official seal, services which are not within the definition of professional land surveying as defined in the Act, provided that such certification does not violate any Texas or federal law.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 23, 2008.

TRD-200803274

Sandy Smith

Executive Director

Texas Board of Professional Land Surveying

Earliest possible date of adoption: August 3, 2008

For further information, please call: (512) 239-5263

22 TAC §663.23

(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Board of Professional Land Surveying or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The Texas Board of Professional Land Surveying (TBPLS) proposes the repeal of §663.23, concerning Certifying Services. The language in this section is being moved to §663.18, relating to Certifications. The repeal will remove this section and the rule language will be added to an existing rule.

Sandy Smith, Executive Director, has determined that for the first five year period the repeal is in effect there will be no fiscal impact to state or local government as a result of enforcing or administering the repeal.

Ms. Smith has also determined that for each year of the first five years the repeal is in effect the public will benefit from the repeal, because it will delete a rule and move the rule language to an existing rule that is more suitable.

There will be no effect on small or micro businesses that are in compliance with the Board's Act and Rules. There are no anticipated costs to those who are required to comply with the repeal as proposed.

Comments on the repeal may be submitted in writing to Sandy Smith, Executive Director, Texas Board of Professional Land Surveying, 12100 Park 35 Circle, Building A, Suite 156, Austin, Texas 78753. Comments may also be faxed to Ms. Smith at the Board at (512) 239-5253 or may be sent electronically to ssmith@txls.state.tx.us. All requests for a public hearing on the proposed repeal submitted under the Administrative Procedure Act must be received by the Executive Director not more than 15 calendar days after notice of the proposed repeal of the section has been published in the Texas Register.

The repeal is proposed pursuant to Title 6, Subtitle C, §1071.151 of the Occupations Code, which authorizes the Board to adopt and enforce reasonable and necessary rules to perform its duties.

The repeal implements the Texas Administrative Code, Title 22, Part 29, Chapter 661, General Rules of Procedures and Practices.

§663.23.Certifying Services.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 23, 2008.

TRD-200803272

Sandy Smith

Executive Director

Texas Board of Professional Land Surveying

Earliest possible date of adoption: August 3, 2008

For further information, please call: (512) 239-5263

CHAPTER 810. COUNCIL ON SEX OFFENDER TREATMENT

SUBCHAPTER A. LICENSED SEX OFFENDER TREATMENT PROVIDERS

22 TAC §810.5

The Council on Sex Offender Treatment (council) proposes an amendment to §810.5, concerning fees for licensing of sex offender treatment providers.

BACKGROUND AND PURPOSE

The amendment is a result of the passage of House Bill (HB) 2292 (78th Legislature, 2003), §2.42(a), which amended Health and Safety Code, Chapter 12, by adding §12.0111(a), Licensing Fees, to include a permit, certification, or registration. Health and Safety Code, §12.0111(b) states, "Notwithstanding other law, the department shall charge a fee for issuing or renewing a license that is in an amount designed to allow the department to recover from its license holders all of the department's direct and indirect costs in administering and enforcing the applicable licensing program." The legislation requires that the council, administratively attached to the Department of State Health Services (department), by rule set licensure requirements and standards for those individuals who provide sex offender treatment in this state.

SECTION-BY-SECTION SUMMARY

The amendment to §810.5 includes an increase of $50 for the new applicant biennial application to $350, and a $150 increase for the biennial license renewal fee to $350 in order for the council to recover costs in administering and enforcing the program.

FISCAL NOTE

Allison Taylor, Executive Director of the council, has determined that for each year of the first-five years the section will be in effect, there will be fiscal implications to the state as a result of administering the section as proposed. Ms. Taylor has determined that for Fiscal Years 2009, 2011, and 2013 renewals, 229 licensed sex offender treatment providers licenses will expire September 30, 2008, at an additional cost of $150 to the licensee for the biennium. This will generate an additional $34,350 for the mentioned fiscal years. For Fiscal Years 2010 and 2012 renewals, 220 licensed sex offender treatment providers licenses will expire September 30, 2009, at an additional cost of $150 to the licensee for the biennium. This will generate an additional $33,000 for the mentioned fiscal years. It is not possible to estimate the number of new applicants which would increase revenue $50 per new applicant. The assumption is that the number of licensees will not decrease due to the increase in fees. There is no anticipated negative impact on local employment or anticipated fiscal implications for local government as a result of enforcing or administering the amendment.

Licensed sex offender treatment provider fees have remained the same for the last 10 years. If this fee increase had been spread out over 10 years, it would have been a minimal 3.4% increase per year. Individual licensees are responsible for the payment of their licensure fees. An affected person must meet the current licensure requirements (including possible additional education), pay a $350 initial licensure fee (increase of $50), meet continuing education requirements, and pay an increase in the biennial renewal fee from $200 to $350.

SMALL AND MICRO-BUSINESS IMPACT ANALYSIS

Ms. Taylor has also determined that there may be an effect on small businesses or micro-businesses that are required to comply with the section as proposed but only if the small businesses choose to pay or currently pay their employees licensure fees. It is unknown and difficult to determine how many, if any, small businesses fall into this category. There are anticipated economic costs to individuals who are required to comply with the section as proposed. Small and micro-businesses may be responsible for the increase of $50 for the new applicant biennial application to $350, plus an additional $39 charge for the Department of Public Safety criminal history check which is referenced in the existing rule text and a $150 increase for the biennial license renewal fee to $350. It is difficult to estimate the number of small and micro-businesses that will be affected. There are currently 449 licensed sex offender treatment providers. The assumption is that 90% (404) of licensed sex offender treatment providers are in private practice as a small business and 10% are employed by governmental entities. There is no anticipated negative impact on local employment.

ECONOMIC BUSINESS IMPACT AND REGULATORY FLEXIBILITY ANALYSIS

Ms. Taylor has determined that an undetermined number of small businesses may be subject to fee increase under the proposed rule if they choose to pay the licensure fees for their employees. However, individual licensees remain responsible for their own licensure and renewal fees. It is not anticipated that any small businesses affected by the proposed rule will have to alter its business practices due to the rule's implementation.

The proposed rule is in direct response to the legislative mandate found in HB 2292, 78th Legislature, whereby Health and Safety Code, §12.0111(b), was amended to provide that the department shall charge a fee for issuing or renewing a license that is in an amount designed to allow the department to recover from its license holders all of the department's direct and indirect costs in administering and enforcing the applicable licensing program." The council is administratively attached to the department and, thus, is subject to Health and Safety Code, §12.0111(b).

The department and council considered several different alternative fee increases; however, the proposed rule represents the lowest possible fee increase which could be chosen in order for the department and the council to meet the legislative mandate of HB 2292, 78th Legislature. The proposed fee increase, resulting from a legislative mandate, is consistent with the health, safety, or environmental and economic welfare of this state. The legislation requires that the council by rule set licensure requirements and standards for those individuals who provide sex offender treatment in this state.

PUBLIC BENEFIT

In addition, Ms. Taylor has also determined that for each year of the first five years the section is in effect, the public will benefit from adoption of the section. The public benefit anticipated as a result of administering and enforcing the section is to generate funding to operate the program to ensure and enhance public safety.

REGULATORY ANALYSIS

The department and council have determined that this proposal is not a "major environmental rule" as defined by Government Code, §2001.0225. "Major environmental rule" is defined to mean a rule the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.

TAKINGS IMPACT ASSESSMENT

The department and council have determined that the proposed amendment does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Government Code, §2007.043.

PUBLIC COMMENT

Comments on the proposal may be submitted to Allison Taylor, Council on Sex Offender Treatment/Professional Licensing and Certification Division, Department of State Health Services, 1100 West 49th Street, Austin, Texas 78756, (512) 719-0243, or by e-mail to Allison.Taylor@dshs.state.tx.us. Comments will be accepted for 30 days following publication of the proposal in the Texas Register.

STATUTORY AUTHORITY

The amendment is authorized by Occupations Code, §110.158, which requires the council to adopt rules consistent with this chapter, and §110.159, which requires the council to charge fees for issuing or renewing a license; and Health and Safety Code, §12.0111, which requires the department to charge fees for issuing or renewing a license.

The amendment affects Occupations Code, Chapter 110; and Health and Safety Code, Chapter 12.

§810.5.Fees.

(a) New Applicant Fees. The council has established the following license fees.

(1) All new LSOTP, ASOTP, and PSOTP applicants shall submit a non-refundable $350 [$300] fee for a biennial application. Additional fees will be charged for Federal Bureau of Investigations and Texas Department of Public Safety criminal background checks unless exempt under §810.34 of this title ( relating [Relating ] to Frequency of Criminal Background Checks). Fees shall be determined by those agencies conducting the investigation.

(2) All applicants shall comply with the following requirements:

(A) - (B) (No change.)

(C) submit within 90 calendar days of written notification from the council [Council] any documentation required.

(b) Renewal Fees. Renewal forms and information shall be mailed to each licensee at least 60 days prior to license expiration and mailed to the licensee's last known address as reflected in the council's records.

(1) (No change.)

(2) To renew, a LSOTP, ASOTP, or PSOTP shall include a non-refundable $350 [$200] fee for a biennial renewal. All applicants shall comply with the following requirements.

(A) - (D) (No change.)

(c) - (g) (No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 23, 2008.

TRD-200803275

Walter J. Meyer, M.D.

Chairperson

Council on Sex Offender Treatment

Earliest possible date of adoption: August 3, 2008

For further information, please call: (512) 458-7111 x6972