Part 1. TEXAS DEPARTMENT OF PUBLIC SAFETY
Subchapter B. PROHIBITIONS
(Editor's note: The text of the following section proposed for repeal will not be published.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 Department of Public Safety or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Texas Department of Public Safety proposes the repeal of §35.14, concerning Good Standing. Repeal of the section is necessary due to it having been rendered redundant by House Bill 2833, Acts 2007, 80th Legislature, Regular Session (amending Chapter 1702 of the Texas Occupations Code).
Oscar Ybarra, Chief of Finance, has determined that for each year of the first five-year period the repeal is in effect, there will be no fiscal implications for state or local government, or local economies.
Mr. Ybarra has also determined that there will be no adverse economic effect on small businesses or micro-businesses required to comply with the repeal. There are no anticipated economic costs to persons who are required to comply with the repeal as proposed. There is no anticipated negative impact on local employment.
In addition, Mr. Ybarra has also determined that for each year of the first five-year period the repeal is in effect, the public benefit anticipated as a result of enforcing the repeal will be greater clarity and simplicity in the Bureau's enforcement of Chapter 1702.
The department has determined that this proposal is not a "major environmental rule" as defined by Texas 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.
The department has determined that Chapter 2007 of the Government Code does not apply to this repeal. Accordingly, the department is not required to complete a takings impact assessment regarding this repeal.
Comments on the repeal are requested and may be sent to Steve Moninger, Legal Staff, Regulatory Licensing Service-Private Security Bureau, P.O. Box 4143, MSC-0242, Austin, Texas 78765-0242, (512) 424-5842.
The repeal is proposed pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department's work; and Texas Occupations Code, §1702.061(b), which authorizes the department to adopt rules to administer this chapter.
Texas Government Code, §411.004(3) and Texas Occupations Code, §1702.061 are affected by this proposal.
§35.14.Good Standing.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on March 3, 2008.
TRD-200801262
Thomas A. Davis, Jr.
Director
Texas Department of Public Safety
Earliest possible date of adoption: April 13, 2008
For further information, please call: (512) 424-2135
The Texas Department of Public Safety proposes new §§35.42, 35.43, and 35.45, concerning Standards. The new sections are in response to and as required by House Bill (H.B.) 2833, Acts 2007, 80th Legislature, Regular Session (amending Chapter 1702 of the Texas Occupations Code).
New §35.42 is necessary because §5 of H.B. 2833, §1702.113(b) of the Texas Occupations Code was amended to require that the Board establish which Class B misdemeanors are to be disqualifying under that section. The Board is of the opinion that the prohibitive Class B misdemeanors are directly related to the provision of services regulated by the Private Security Act, and that the discretionary offenses may, under certain circumstances, be so related, in that the license may offer the license holder an opportunity to commit further such offenses. In addition, the Board believes that the commission of such offenses raises doubts regarding whether the individual's judgment and character is suited to the provision of regulated services.
New §35.43 is necessary because §5 of H.B. 2833, §1702.113(a) of the Texas Occupations Code was amended to require that the Board establish the circumstances under which an "other than honorable discharge" is to be disqualifying under that section. The Board is of the opinion that military discharges under "other than honorable conditions" should be prohibitive when they are based on classified criminal offenses, and that the term of disqualification should track the statutory criteria associated with the level of the offense. For those that are not based on a classifiable offense, the Board believes a ten year term of disqualification is appropriate, based on the various circumstances that can result in such a discharge.
New §35.45 is necessary because §18 of H.B. 2833, §1702.3615(c) of the Texas Occupations Code was amended to require that the Board establish the factors to be considered in determining whether circumstances warrant approval of an application where the application has been denied solely because of the applicant's status as a registered sex offender. The Board is of the opinion that the proposed criteria will enable it to fairly evaluate the applicant's fitness for licensure. The criteria include the age of the applicant at the time of the underlying offense, the classification of the offense, any evidence of rehabilitation or recidivism, the amount of time that has passed, and the relationship between the offense and the occupation for which the individual seeks a license, including whether licensure will facilitate the commission of a similar offense.
Oscar Ybarra, Chief of Finance, has determined that for each year of the first five-year period the rules are in effect, there will be no fiscal implications for state or local government, or local economies.
Mr. Ybarra has also determined that there will be no adverse economic effect on small businesses or micro-businesses required to comply with the sections as proposed. There are no anticipated economic costs to persons who are required to comply with the sections as proposed. There is no anticipated negative impact on local employment.
In addition, Mr. Ybarra has also determined that for each year of the first five-year period the rules are in effect, the public benefit anticipated as a result of enforcing the rules will be greater consistency and fairness in the Bureau's enforcement of Chapter 1702.
The department has determined that this proposal is not a "major environmental rule" as defined by Texas 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.
The department has determined that Chapter 2007 of the Government Code does not apply to these rules. Accordingly, the department is not required to complete a takings impact assessment regarding these rules.
Comments on the proposal are requested and may be sent to Steve Moninger, Legal Staff, Regulatory Licensing Service-Private Security Bureau, P.O. Box 4143, MSC-0242, Austin, Texas 78765-0242, (512) 424-5842.
The new sections are proposed pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department's work; and Texas Occupations Code, §1702.061(b), which authorizes the department to adopt rules to administer this chapter.
Texas Government Code, §411.004(3) and Texas Occupations Code, §1702.061 are affected by this proposal.
§35.42.Disqualifying Class B Misdemeanor Offenses.
(a) Pursuant to the requirement of §1702.113(b), the following Class B misdemeanor offenses (as reflected in the Texas Penal Code) shall be disqualifying for five years from the date of conviction:
(1) 22.01 Assault (by threat or offensive contact with sports participant).
(2) 22.07 Terroristic threat.
(3) 25.04 Enticing a child from lawful custody.
(4) 31.03 Theft ($50 to $500).
(5) 32.41 Issuance of bad check (for child support).
(6) 32.45 Misapplication of fiduciary property.
(7) 32.46 Securing execution of a document by deception.
(8) 37.08 False report to police officer.
(9) 37.12 False identification as peace officer.
(10) 39.02 Abuse of official capacity.
(11) 39.05 Failure to report death of prisoner.
(12) 42.01 Disorderly conduct (firearm in public place).
(13) 42.02 Riot.
(14) 42.061 Silent or Abuse Calls to 911 Service.
(b) Pursuant to the requirement of §1702.113(b), the following Class B misdemeanors (as reflected in the Texas Penal Code) are disqualifying for five years from the date of conviction, subject to the discretionary authority of the Manager (as delegated by the Board) to consider mitigating circumstances:
(1) 21.08 Indecent exposure.
(2) 30.05 Criminal Trespass (not habitation).
(3) 31.12 Theft of or tampering with multichannel video or information services (and conviction).
(4) 32.52 Fraudulent, Substandard or Fictitious Degree.
(5) 33.02 Breach of computer security.
(6) 33.A.02 Unauthorized use of telecommunications service (less than $500).
(7) 33.A.04 Theft of telecommunications service (less than $500).
(8) 38.02 Failure to identify (if a fugitive).
(9) 38.04 Evading arrest or detention.
(10) 42.07 Harassment.
(c) Class B misdemeanors not listed in subsections (a) or (b) of this section are not disqualifying under §1702.113.
§35.43.Other Than Honorable Discharges.
Pursuant to the requirement of §1702.113(a) of the Occupations Code, individuals who are discharged from the United States Armed Services under other than honorable conditions are disqualified from receiving a license, commission, or registration for the following time periods:
(1) for five years after the date of discharge if the discharge was based on a criminal offense equivalent to a Class B misdemeanor;
(2) for ten years after the date of discharge if the discharge was based on a criminal offense equivalent to a Class A misdemeanor;
(3) for twenty years after the date of discharge if the discharge was based on a criminal offense equivalent to a felony; and
(4) for ten years after the date of discharge if the discharge was for any other reason.
§35.45.Sex Offender Registrants.
Pursuant to the requirement of §1702.3615(c) of the Occupations Code, the following factors will be employed in the Board's determinations under that provision:
(1) The age of the applicant at the time of the offense giving rise to the registration requirement;
(2) The classification of the offense;
(3) Evidence of rehabilitation or recidivism;
(4) The amount of time that has passed since the commission of the offense;
(5) The relationship between the offense and the occupation for which the individual seeks a license, including whether licensure will facilitate the commission of a similar offense.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on March 3, 2008.
TRD-200801263
Thomas A. Davis, Jr.
Director
Texas Department of Public Safety
Earliest possible date of adoption: April 13, 2008
For further information, please call: (512) 424-2135
Chapter 141. GENERAL PROVISIONS
Subchapter C. SUBMISSION AND PRESENTATION OF INFORMATION AND REPRESENTATION OF OFFENDERS
The Texas Board of Pardons and Paroles proposes an amendment to 37 TAC §141.61, concerning representation of an offender. The purpose of the amendment is to clarify the review period for offenders who are eligible for parole review.
Rissie Owens, Chair of the Board, determined that for each year of the first five-year period the proposed amendments are in effect, no fiscal implications exist for state or local government as a result of enforcing or administering this section.
Ms. Owens also has determined that for each year of the first five years the proposed amendments are in effect, the public benefit anticipated as a result of enforcing the amendments will be to provide a method of selection of certain offenders to undergo a TDCJ rehabilitation program prior to release. There will be no effect on small businesses. There is no anticipated economic cost to persons required to comply with the amended rule as proposed. No regulatory flexibility analysis required by HB 3430 is necessary.
Comments should be directed to Bettie Wells, General Counsel, Texas Board of Pardons and Paroles, 209 W. 14th Street, Suite 500, Austin, TX 78701, or by e-mail to bettie.wells@tdcj.state.tx.us. Written comments from the general public should be received within 30 days of the publication of this proposal.
The amended rule is proposed under §508.082, and §508.083, Government Code. Section 508.082 requires the board to adopt rules relating to the submission and presentation of information and arguments to the board, a parole panel, and the department for and in behalf of an inmate. Section 508.083 relates to representation of an inmate in a matter before the board or a parole panel.
No other statutes, articles or codes are affected by these amendments.
§141.61.Representation of an Offender.
(a) Persons representing an offender may appear before a member of the board panel designated to consider the offender's case.
(b) Requests for appearances by persons representing offenders shall be only when the offender's case is under review, during the review period, and at the discretion of the members of the parole panel designated to review the case.
(c) The time, place, and manner of contact between a person representing an offender and a member of the board or an employee of the board shall be established by the members of the parole panel designated to review the case.
(d) For this purpose, the review period shall mean
a period greater than two [four] months but less
than six months prior to the month of the next scheduled review.
(e) For the purpose of Discretionary Mandatory Review, the review period shall mean a period greater than thirty days but less than seventy-five days prior to the projected release date.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on March 3, 2008.
TRD-200801257
Bettie Wells
General Counsel
Texas Board of Pardons and Paroles
Earliest possible date of adoption: April 13, 2008
For further information, please call: (512) 406-5388
Subchapter A. PAROLE PROCESS
The Texas Board of Pardons and Paroles proposes an amendment to 37 TAC §145.15, concerning action upon review; extraordinary vote. The amendment proposes new language to establish a voting option for placement of offenders into the Sex Offender Education Program (SOEP) or the Sex Offender Treatment Program (SOTP).
Rissie Owens, Chair of the Board, determined that for each year of the first five-year period the proposed amendments are in effect, no fiscal implications exist for state or local government as a result of enforcing or administering this section.
Ms. Owens also has determined that for each year of the first five years the proposed amendments are in effect, the public benefit anticipated as a result of enforcing the amendments will be to provide a method of selection of certain offenders to undergo a TDCJ rehabilitation program prior to release. There will be no effect on small businesses. There is no anticipated economic cost to persons required to comply with the amended rule as proposed. No regulatory flexibility analysis required by HB 3430 is necessary.
Comments should be directed to Bettie Wells, General Counsel, Texas Board of Pardons and Paroles, 209 W. 14th Street, Suite 500, Austin, TX 78701, or by e-mail to bettie.wells@tdcj.state.tx.us. Written comments from the general public should be received within 30 days of the publication of this proposal.
The amended rule is proposed under §508.036, Government Code, which provides the board with the authority to promulgate rules relating to the board's decision-making processes, and §508.044, Government Code, providing the board with the authority to adopt rules relating to the eligibility of an inmate for release on parole or mandatory supervision.
No other statutes, articles or codes are affected by these amendments.
§145.15.Action Upon Review; Extraordinary Vote.
(a) This section applies to any offender convicted of a capital offense under §21.11(a)(1) or §22.021, Penal Code, or who is required under §508.145(c), Government Code, to serve 35 calendar years before becoming eligible for parole review. All members of the board shall vote on the release of an eligible offender. At least two-thirds of the members must vote favorably for the offender to be released to parole. Members of the board shall not vote until they receive and review a copy of a written report from the department on the probability of the offender committing an offense after being released.
(1) Upon review, use of the full range of voting options is not conducive to determining whether two-thirds of the board considers the offender ready for release to parole.
(2) If it is determined that circumstances favor the offender's release to parole the board has the following voting options available:
(A) FI-1: Release the offender when eligible; or
(B) FI-4R (Month/Year): Transfer to a TDCJ rehabilitation program. Release to parole only after program completion and not earlier than four months from specified date. Such TDCJ program shall be either the Sex Offender Education Program (SOEP) or the Sex Offender Treatment Program (SOTP).
(C) [(B)] FI-18 R (Month/Year):
Transfer to a TDCJ rehabilitation treatment program. Release to parole
only after program completion and no earlier than eighteen months
from the specified date. Such TDCJ program may include the Sex Offender
Treatment Program (SOTP). In no event shall the specified date be
set more than three years from the current panel decision date.
(3) If it is determined that circumstances do not support a favorable action upon review, the following options are available:
(A) NR (Month/Year): Deny release and set the next review date for 36 months following the panel decision date; or
(B) SA: The offender's minimum or maximum expiration date is less than 36 months away. The offender will continue to serve their sentence until that date.
(b) If the offender is sentenced to serve consecutive sentences and each sentence in the series is for an offense committed on or after September 1, 1987, the following voting options are available to the board panel:
(1) CU/FI (Month/Year-Cause Number): A favorable parole action that designates the date an offender would have been released if the offender had been sentenced to serve a single sentence;
(2) CU/NR (Month/Year-Cause Number): Deny release and set the next review date for 36 months following the panel decision date; or
(3) CU/SA (Month/Year-Cause Number): Deny release and order serve-all if the offender is within 36 months of their maximum expiration date.
(c) Some offenders are eligible for consideration for release to Discretionary Mandatory Supervision if the sentence is for an offense committed on or after September 1, 1996. Prior to the offender reaching the projected release date, the voting options are the same as those listed in subsections (a) and (b) in this section. If TDCJ-CID determines that release of the offender will occur because the offender will reach the projected release date, the case shall be referred to a three-member parole panel within 30 days of the offender's projected release date for consideration for release to mandatory supervision using the following options:
(1) RMS: Release to mandatory supervision; or
(2) DMS (Month/Year): Deny release to mandatory supervision and set for review on a future specific month and year. The next mandatory supervision review date shall be set one year from the panel decision date.
(d) Upon review of any eligible offender who qualifies for release to Medically Recommended Intensive Supervision (MRIS), the MRIS panel shall initially vote to either recommend or deny MRIS consideration. The MRIS panel shall base this decision on the offender's medical condition and medical evaluation, and shall determine whether the offender constitutes a threat to public safety.
(1) If the MRIS panel determines the offender does constitute a threat to public safety, no further voting is required.
(2) If the MRIS panel determines that the offender does not constitute a threat to public safety, the case shall be sent to the full board, which shall determine whether to approve or deny the offender's release to parole. The following voting options are available to the board:
(A) Approve MRIS: The board shall vote FI-1 and impose special condition "O" - "The offender shall comply with the terms and conditions of the MRIS program and abide by a Texas Correctional Office for Offenders with Mental or Medical Impairments (TCOOMMI)-approved release plan. At any time this condition is in effect, an offender shall remain under the care of a physician and in a medically suitable placement"; the board shall provide appropriate reasons for the decision to approve MRIS.
(B) Deny MRIS: The board shall provide appropriate reasons for the decision to deny MRIS.
(3) The decision to approve release to MRIS for an offender remains in effect until specifically withdrawn by the board.
(e) If a request for a special review meets the criteria set forth in §145.17(f) of this title (relating to Action upon Special Review--Release Denied), the offender's case shall be sent to the special review panel.
(1) The special review panel may take action as set forth in §145.17(i) of this title.
(2) When the special review panel decides the offender's case warrants a special review, the case shall be re-voted by the full board. The presiding officer shall determine the order of the voting panel. Voting options are the same as those in subsections (a) - (c) of this section.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on March 3, 2008.
TRD-200801256
Bettie Wells
General Counsel
Texas Board of Pardons and Paroles
Earliest possible date of adoption: April 13, 2008
For further information, please call: (512) 406-5388
Chapter 435. FIRE FIGHTER SAFETY
The Texas Commission on Fire Protection (the Commission) proposes amendments to Chapter 435, Fire Fighter Safety, §435.1, concerning protective clothing. The purpose of the proposed amendment is to offer a method to the fire service to prolong the in-service life of protective clothing that must be retired at 10 years from the date of manufacture as required by the National Fire Protection Association Standard 1851 - 2008 Edition ("Standard 1851"). The revised edition of the standard went into effect on June 24, 2007 and, pursuant to §419.040 Texas Government Code, ultimately must be placed in effect for the fire service in Texas.
Jake Soteriou, Director of the Fire Service Standards and Certification Division, has determined that if implemented immediately in accordance with its terms, Standard 1851 could cause immediate, significant, and burdensome costs on local governments. The intent of the amendments to §435.1 is to allow fire departments to continue using protective clothing beyond the ten-year mandated retirement age as long as the protective clothing passes the advanced inspections found in Standard 1851. There are no cost implications for state government. Under the proposed amendments to §435.1 local government may incur costs to replace any protective clothing older than ten years that does not meet the inspection provisions set forth in the Standard 1851. Fire departments that have protective clothing older than 10 years could incur costs up to $1,800 per person to replace the protective clothing. There are approximately 26,000 sets of protective clothing in service in the approximately 500 regulated fire departments in Texas. Under the proposed amendment, the department will have the option to perform an advanced inspection on ten year and older protective clothing instead of replacing it immediately. Protective clothing that fails the advanced inspection may repair it to a level of passing the inspection and continue using the protective clothing. Repair cost is estimated to be half the amount to replace existing ten-year-old protective clothing, which is far less than the cost of immediate compliance.
Mr. Soteriou has also determined that the proposed amendments, the public benefit anticipated as a result of enforcing the amendments would be to ensure the safety of fire fighters wearing the protective clothing when they are involved in fire suppression efforts. There are no additional costs of compliance for small or large businesses or individuals as they are not required to comply with these proposed amendments. Volunteer fire departments are not affected by this amendment.
Comments regarding these proposed amendments may be submitted, in writing, within 90 days following the publication of this notice in the Texas Register to Gary L. Warren, Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768-2286 or e-mailed to info@tcfp.state.tx.us. Comments will be reviewed and discussed at a future Commission meeting.
This amendment is proposed under Texas Government Code, §419.008, which provides the Commission with the authority to propose rules for the administration of its powers and duties.
Cross reference to statute: Texas Government Code, Chapter 419.
§435.1.Protective Clothing.
(a) A regulated fire department shall:
(1) purchase, provide, and maintain a complete set of protective clothing for all fire protection personnel who would be exposed to hazardous conditions from fire or other emergencies or where the potential for such exposure exists. A complete set of protective clothing shall consist of garments including bunker coats, bunker pants, boots, gloves, helmets, and protective hoods, worn by fire protection personnel in the course of performing fire-fighting operations;
(2) ensure that all protective clothing which are used by fire protection personnel assigned to fire suppression duties comply with the minimum standards of the National Fire Protection Association suitable for the tasks the individual is expected to perform. The National Fire Protection Association standard applicable to protective clothing is the standard in effect at the time the entity contracts for new, rebuilt, or used protective clothing; and
(3) maintain and provide upon request by the commission, a departmental standard operating procedure regarding the use, selection, care, and maintenance of protective clothing which complies with NFPA 1851, Standard on Selection, Care, and Maintenance of Structural Fire Fighting Protective Ensembles.
(A) Fire departments shall use the advanced inspection requirements found in NFPA 1851 - 2008 Edition (June 24, 2007) to evaluate all protective clothing purchased prior to the effective date of the NFPA 1971 - 2007 Edition (August 17, 2006) to determine retirement.
(B) All personnel protective clothing purchased under NFPA 1971 - 2007 Edition or later will be subject to the 10 year retirement provision (5 year outer shell on ARFF gear) stipulated in NFPA 1851 - 2008 Edition.
(b) An entity may continue to use protective clothing in use or contracted for before a change in the National Fire Protection Association standard, unless the commission determines that the protective clothing constitutes an undue risk to the wearer, in which case the commission shall order that the use be discontinued and shall set an appropriate date for compliance with the revised standard.
(c) It has been demonstrated that the product identified
as BREATHE-TEX®, manufactured by Aldan Engineered Coated Fabrics,
used as a moisture barrier in some protective clothing, may fail unpredictably
and allow moisture to pass through the barrier. This product is the
subject of recalls by some manufacturers. Pursuant to the Government
Code, §419.040(b), the commission has determined that continued
use of protective clothing having the moisture barrier identified
above constitutes an undue risk to the wearer. Therefore, all regulated
fire departments shall as of January 1, 2002, remove from service
all protective clothing containing BREATHE-TEX® [
Breathe-Tex®] moisture barriers.
(d) Protective clothing in use or contracted for prior to January 1, 2002, shall be exempted from the record keeping requirements contained in Section 2.3, Records, of NFPA 1851.
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 February 29, 2008.
TRD-200801212
Gary L. Warren, Sr.
Executive Director
Texas Commission on Fire Protection
Proposed date of adoption: June 12, 2008
For further information, please call: (512) 936-3838