TITLE 22. EXAMINING BOARDS

PART 11. TEXAS BOARD OF NURSING

CHAPTER 211. GENERAL PROVISIONS

22 TAC §211.6

The Texas Board of Nursing (BON) proposes an amendment to 22 TAC §211.6, pertaining to Committees of the Board. The proposed amendment adds language to the foregoing rule reflecting the establishment of the Eligibility and Disciplinary Advisory Committee (EDAC), formerly known as the Eligibility and Disciplinary Committee Task Force. When the Task Force was created, its purpose was to develop recommendations for the Board concerning matters of licensure, eligibility, and discipline. The designation of "Task Force" has served to describe the committee as potentially limited in duration. This committee has proved a very valuable asset in obtaining stakeholder input regarding matters of eligibility and discipline and has served to educate stakeholders as to the unique value of the Board in the protection of public health and welfare through its decisions regarding eligibility and discipline. The Task Force has been re-designated as a standing "Advisory Committee," which is to be utilized to give analysis and advise the Board regarding regulatory matters, with continuing duration.

Katherine Thomas, Executive Director, has determined that for the first five-year period the proposed amendment is in effect there will be no additional fiscal implications for state or local government as a result of implementing the proposed amendment.

Ms. Thomas has also determined that for each year of the first five years the proposed amendment is in effect, the public benefit will be that the amendment will provide greater efficiency in the administration of the agency's functions. There will not be any foreseeable effect on small businesses. There are no anticipated costs to affected individuals as a result of the implementation of the proposed amendment.

Written comments on the proposal may be submitted to James W. Johnston, General Counsel, Texas Board of Nursing, 333 Guadalupe, Suite 3-460, Austin, Texas 78701, or by e-mail to dusty.johnston@bon.state.tx.us, or faxed to (512) 305-8101.

The amendment is proposed pursuant to the authority of Texas Occupations Code §301.151 which authorizes the Texas Board of Nursing to adopt, enforce, and repeal rules consistent with its legislative authority under the Nursing Practice Act.

No other articles, statutes or codes are affected by this proposal.

§211.6.Committees of the Board.

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

(f) Advisory Committees. The president may appoint, with the authorization of the board, advisory committees for the performance of such activities as may be appropriate or required by law.

(1) The board has established the following committees that advise the board on a continuous basis or as charged by the Board:

(A) - (C) (No change.)

(D) the Eligibility and Disciplinary Advisory Committee (EDAC) gives analysis and advises the Board regarding regulatory matters. The EDAC is comprised of representatives from the following:

(i) Texas Association of Vocational Nurse Educators (TAVNE);

(ii) Licensed Vocational Nurses Association of Texas (LVNAT);

(iii) Texas League of Vocational Nurses (TLVN);

(iv) Texas Organization of Associate Degree Nursing (TOADN);

(v) Texas Organization of Baccalaureate and Graduate Nurse Educators (TOBGNE);

(vi) Texas Nurses Association (TNA);

(vii) Texas Organization of Nurse Executives (TONE);

(viii) Coalition for Nurses in Advanced Practice; and

(ix) other members approved by the Board.

(2) - (12) (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 November 3, 2008.

TRD-200805788

James W. Johnston

General Counsel

Texas Board of Nursing

Earliest possible date of adoption: December 14, 2008

For further information, please call: (512) 305-6811


CHAPTER 217. LICENSURE, PEER ASSISTANCE AND PRACTICE

22 TAC §217.16

The Texas Board of Nursing (BON) proposes amendments to 22 TAC §217.16 relating to Minor Incidents. The proposed amendments will provide clarification and consistency in the Board's current "minor incident" rule with the board's nursing peer review rules located at 22 TAC §217.19 and §217.20, relating to Incident-Based and Safe Harbor Nursing Peer Review respectively. This proposed rule regarding minor incidents will help with the implementation of the previously adopted nursing peer review rules that became effective May 11, 2008, as published in the October 10, 2008, issue of the Texas Register (33 TexReg 8512). These rules were revised in response to Senate Bill 993 and House Bill 2426 (80th Regular Texas Legislative Session, 2007).

The minor incident rule was last amended in May of 2006 and has been in existence since 1994. As is stated in current rule language, the board does not believe the protection of the public is enhanced by the reporting of every minor incident that may be a violation of the Texas Nursing Practice Act. The intent of the Minor Incident rule is to provide guidance to nurses, nursing peer review committees, nursing supervisors and others who may have a duty to report in determining whether a nurse has engaged in conduct that indicates the nurse's continued practice would pose a risk of harm to patients or others that cannot be remediated or that is otherwise required to be reported to the board.

The proposed rule also adds guidance for implementing amended §301.410(b) of the Nursing Practice Act which now requires a report to the board when a person believes a nurse has committed a practice violation in conjunction with the belief that the nurse may concurrently be impaired by chemical dependency or any condition that results in the nurse experiencing a diminished mental capacity.

The proposed rule seeks to implement additional changes recommended by the BON's Nursing Practice Advisory Committee (NPAC) which were adopted by the Board to clarify language regarding conduct that requires a report to the board and conduct that typically does not require a report to the board. Given that nurses are frequently in attendance when a patient expires, the proposed language also provides guidance to peer review committees when they are asked to evaluated nursing actions associated with a death or serious injury. The rule is designed to ensure that the peer review documents the committee's rationale in coming to this determination when death or serious injury to a patient is present.

Katherine Thomas, Executive Director, has determined that for each year of the first five years the proposal is in effect, there will be no additional fiscal implications for state or local government as a result of implementing the proposed amendments. There will be no effect on small or micro businesses or foreseeable anticipated costs to affected individuals as a result of the implementation of the proposed rule changes.

Ms. Thomas has also determined that for each year of the first five years the proposal is in effect, the public benefit will be that the BON will more effectively fulfill its mission.

Written comments on the proposed amendments may be submitted to Katherine Thomas, Executive Director, Texas Board of Nursing, 333 Guadalupe, Suite 3-460, Austin, TX 78701; by e-mail to katherine.thomas@bon.state.tx.us; or by facsimile to (512) 305-8101.

The amendment is proposed pursuant to the authority of Texas Occupations Code §301.151 which authorizes the Board of Nursing to adopt, enforce, repeal, and amend rules consistent with its legislative authority under the Nursing Practice Act.

The proposed rule implicates Texas Occupations Code §301.401 and §301.410(b).

§217.16. Reporting of Minor Incidents.

(a) Purpose. The Board believes protection of the public is not enhanced by the reporting of every minor incident that may be a violation of the Texas Nursing Practice Act or a board rule. This is particularly true when there are mechanisms in place in the nurse's practice setting to identify nursing errors, detect patterns of practice, and take corrective action to remediate deficits in a nurse's judgment, knowledge, training, or skill. This rule is intended to provide guidance to nurses, nursing peer review committees and others in determining whether a nurse has engaged in conduct that indicates the nurse's continued practice would pose a risk of harm to patients or others and should [clarify what constitutes a minor incident and when a minor incident need not] be reported to the board.

(b) Definition [and Scope]. A "minor incident" as defined under Nursing Practice Act §301.401(2) means [ is defined by Texas Occupations code §301.419(a) as"] conduct by a nurse that may be a violation of the Nursing Practice Act or a Board rule but does not indicate the Nurse's continued [that does not indicate that the continuing] practice [ of nursing by an affected nurse] poses a risk of harm to a patient [the client] or another [ other] person.["]

(c) Factors to be Considered in Evaluating if Conduct Must Be Reported to the Board.

(1) A nurse involved in a minor incident need not be reported to the Board unless the conduct indicates the nurse:

(A) ignored a substantial risk that exposed a patient or other person to significant physical, emotional or financial harm or the potential for such harm;

(B) lacked a conscientious approach to or accountability for his/her practice;

(C) lacked the knowledge and competencies to make appropriate clinical judgments and such knowledge and competencies cannot be easily remediated; or

(D) indicates the nurse has engaged in a pattern of multiple minor incidents that demonstrate the nurse's continued practice would pose a risk of harm to patients or others.

(2) Evaluation of Multiple Incidents.

(A) Evaluation of Conduct. In evaluating whether multiple incidents constitute grounds for reporting it is the responsibility of the nurse manager or supervisor or peer review committee to determine if the minor incidents indicate a pattern of practice that demonstrates the nurse's continued practice poses a risk and should be reported.

(B) Evaluation of Multiple Incidents. In practice settings with nursing peer review, the nurse must be reported to peer review if a nurse commits five minor incidents within a 12-month period. In practice settings with no nursing peer review, the nurse who commits five minor incidents within a 12 month period must be reported to the Board.

(C) Nurse Manager and Nurse Supervisor Responsibilities. Regardless of the time frame or number of minor incidents, if a nurse manager or supervisor believes the minor incidents indicate a pattern of practice that poses a risk of harm that cannot be remediated, the nurse should be reported to the Board or Peer Review Committee.

(3) Other factors that may be considered in determining whether a minor incident should be reported to the Board are:

(A) the significance of the nurse's conduct in the particular practice setting; and

(B) the presence of contributing or mitigating circumstances, including systems issues or factors beyond the nurse's control, in relation to the nurse's conduct.

(d) Conduct Required to be Reported.

(1) A nurse must be reported to the board or to a nursing peer review committee for the following conduct:

(A) An error that contributed to a patient's death or serious harm.

(B) Criminal Conduct defined in Texas Occupations Code §301.4535.

(C) A serious violation of the board's Unprofessional Conduct rule §217.12 of this title (relating to Unprofessional Conduct) involving intentional or unethical conduct including but not limited to fraud, theft, patient abuse or patient exploitation.

(D) A practice-related violation involving impairment or suspected impairment by reason of chemical dependency, intemperate use, misuse or abuse of drugs or alcohol, mental illness, or diminished mental capacity required to be reported in accordance with §301.410(b) of the Nursing Practice Act and §217.19(g) of this title (relating to Incident Based Nursing Peer Review and Whistle Blower Protections).

(2) If a nursing peer review committee determines that a nurse engaged in the conduct listed in subsection (c)(1)(A) - (D) of this section the committee must report the nurse to the board. For errors involving the death or serious injury of a patient, if a nursing peer review committee makes a determination that a nurse has not engaged in conduct subject to reporting to the board, the committee must maintain documentation of the rationale for their belief that the nurse's conduct failed to meet each of the factors in paragraph (1)(A) - (D) of this subsection.

>[(c) Exclusions. The following conduct shall not be deemed a minor incident under any circumstance:]

[(1) An error that contributed to a patient's death or serious harm.]

[(2) Criminal Conduct defined in Texas Occupations Code §301.4535.]

[(3) A serious violation of the board's Unprofessional Conduct Rule (22 TAC §217.12) involving intentional or unethical conduct such as fraud, theft, patient abuse or patient exploitation.]

[(d) Criteria for Determining if Minor Incident is Board-Reportable.]

[(1) A nurse involved in a minor incident need not be reported to the Board unless the conduct:]

[(A) creates a significant risk of physical, emotional or financial harm to the client;]

[(B) indicates the nurse lacks a conscientious approach to or accountability for his/her practice;]

[(C) indicates the nurse lacks the knowledge and competencies to make appropriate clinical judgments and such knowledge and competencies cannot be easily remediated; or]

[(D) indicates a pattern of multiple minor incidents demonstrating that the nurse's continued practice would pose a risk of harm to clients or others.]

[(2) Evaluation of Multiple Incidents.]

[(A) Evaluation of Conduct. In evaluating whether multiple incidents constitute grounds for reporting it is the responsibility of the nurse manager or supervisor or peer review committee to determine if the minor incidents indicate a pattern of practice that demonstrates the nurse's continued practice poses a risk and should be reported.]

[(B) Evaluation of Multiple Incidents. In practice settings with nursing peer review, the nurse shall be reported to peer review if a nurse commits five minor incidents within a 12-month period. In practice settings with no nursing peer review, the nurse who commits five minor incidents within a 12 month period shall be reported to the Board.]

[(C) Nurse Manager and Nurse Supervisor Responsibilities. Regardless of the time frame or number of minor incidents, if a nurse manager or supervisor believes the minor incidents indicate a pattern of practice that poses a risk of harm, the nurse should be reported to the Board or Peer Review Committee.]

(e) Conduct Normally Not Required to Be Reported to the Board [ Special Considerations in Evaluating Incidents].

(1) An incident should be evaluated [ In evaluating whether a nurse's conduct constitutes a minor incident or should be reported] to determine if [the Board, the following should be considered]:

(A) [(1)] the [If an ] incident is primarily the result of factors beyond the nurse's control and addressing those factors is more likely to prevent the incident from reoccurring; or [, a presumption should exist that the incident is a non-reportable minor incident.]

(B) [(2)] the incident was [ Multiple factors may contribute to medication errors. For the purposes of this rule,] a medication error caused primarily by factors beyond the nurse's control rather than [should be evaluated to determine whether the error resulted from] failure of the nurse to exercise proper clinical judgment [or if there were other extraneous factors that were the primary cause of the error]. Board Position Statement 15.17 Texas Board of Nursing/Board of Pharmacy Joint Position Statement/Medication Error provides guidelines for evaluating medication errors found at http://www.bon.state.tx.us/practice/position.html#15.17.

(2) If either of the conditions listed in paragraph (1) of this subsection are present, a presumption should exist that the nurse's conduct does not indicate the nurse's continued practice poses a risk of harm to a patient or another person and does not need to be reported to the board.

(f) Documentation of Minor Incidents. A minor incident should be documented as follows:

(1) A report must [shall] be prepared and maintained for a minimum of 12 months that contains a complete description of the incident, patient record number, witnesses, nurse involved and the action taken to correct or remedy the problem.

(2) If a medication error is attributable or assigned to the nurse as a minor incident, the record of that incident should indicate why the error is being attributed or assigned to the nurse.

(g) Nursing Peer Review Committee.

(1) If a report is made to the peer review committee, the committee must investigate and conduct incident-based nursing peer review in compliance with Nursing Peer Review Law in Texas Occupations Code §303 and §217.19 of this title.

(2) Review of a nurse's conduct or practice may be accomplished by either an informal work group of the nursing peer review committee as provided under §217.19(e) of this title or the full nursing peer review committee prior to a report being made to the board.

(3) [(1)] A nursing peer review committee receiving a report involving a minor incident or incidents must [shall] review the incident(s) and other conduct of the nurse during the previous 12 months to determine if the nurse's continuing to practice poses a risk of harm to patients [clients] or other persons and whether remediation would be reasonably expected to adequately mitigate such risk if it exists. The committee must [shall] consider the special considerations set out in subsection (c) [(d) ] of this section.

[(2) Regardless of the number of incidents, the facility may choose to initiate an informal review process utilizing a workgroup of the nursing peer review committee Peer review of minor incidents under this Rule may be conducted by a special workgroup of the nursing peer review committee. The workgroup may conduct its review using an informal process as long as the nurse has opportunity to meet with the workgroup and provided the nurse is given an opportunity to be peer reviewed in accordance with §217.19 of this title (relating to Incident-Based Nursing Peer Review) prior to any report being made to the Board.]

(4) [(3)] The nursing [If the ] peer review committee [determines either that the nurse's continuing to practice does not pose a risk of harm to clients or other persons or that remediation could reasonable be expected to adequately mitigate any such risk, the committee] need not report the nurse to the Board if the peer review committee determines that either:

(A) the nurse's continuing to practice does not pose a risk of harm to patients or other persons; or

(B) [provided any] remediation could reasonably be expected to adequately mitigate any such risk and the nurse [is] successfully completes the remediation [completed].

(5) If a nurse terminates employment while undergoing remediation activities as directed by a peer review committee under paragraph (3) of this subsection, the peer review committee may either:

(A) report the nurse to the BON;

(B) report to the peer review committee of the new employer, if known, with the nurses written consent;

(C) re-evaluate the nurse's current conduct to determine if the nurse did complete sufficient remediation and is deemed safe to practice.

(h) A Right to Report. Nurses and other persons are encouraged not to report minor incidents to the Board unless required to do so by this rule, but nothing in this rule is intended to prevent reporting of a potential violation directly to the Board or to a nursing peer review committee.

(i) Mis-classifying to Avoid Reporting. [Bad Faith Determination.] Intentionally mis-classifying an incident [in bad faith] to avoid reporting may result in violation of the mandatory reporting statute.

(j) Chief Nursing Officer or Nurse Administrator [ Officer's] Responsibility. The Chief Nursing Officer, Nurse Administrator or registered nurse by any title who is responsible for nursing services [chief nursing officer] shall be responsible for taking reasonable steps to assure that minor incidents are handled in compliance with this rule and any other applicable law.

(k) Nurses Reported to the Board. If a nurse is reported to the board, the board shall review the nurse's conduct to determine if it indicates the nurse's continued practice poses a risk of harm to a patient or another person. If it does not the board may elect not to proceed with filing formal charges.

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 November 3, 2008.

TRD-200805789

James W. Johnston

General Counsel

Texas Board of Nursing

Earliest possible date of adoption: December 14, 2008

For further information, please call: (512) 305-6811


PART 23. TEXAS REAL ESTATE COMMISSION

CHAPTER 534. GENERAL ADMINISTRATION

22 TAC §534.2

The Texas Real Estate Commission (TREC) proposes amendments to 22 TAC §534.2 concerning Processing Fees for Dishonored Checks.

The amendments to §534.2 change the title to the section and amend the rule to clarify that the processing fee for dishonored payments does not only apply to dishonored checks but to any other types of dishonored payments such as a charge back to a credit card.

Loretta R. DeHay, General Counsel, has determined that for the first five-year period the sections are in effect there will be no fiscal implications for the state or for units of local government as a result of enforcing or administering the sections. There is no anticipated impact on small businesses, micro-businesses or local or state employment as a result of implementing the sections.

Ms. DeHay also has determined that for each year of the first five years the sections as proposed are in effect the public benefit anticipated as a result of enforcing the sections will be consistency with how the agency treats dishonored payments of all kinds whether they are dishonored checks or credit card charge backs. The only anticipated economic cost is a minimal one to persons who, without previous authorization from the commission, attempt to prevent a credit card company from paying for a service provided by the commission.

Comments on the proposal may be submitted to Loretta R. DeHay, General Counsel, Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188.

The amendments to the rule are proposed under Texas Occupations Code, §1101.151, which authorizes the Texas Real Estate Commission to make and enforce all rules and regulations necessary for the performance of its duties and to establish standards of conduct and ethics for its licensees in keeping with the purpose and intent of the Act to insure compliance with the provisions of the Act.

The statutes affected by this proposal are Texas Occupations Code, Chapters 1101 and 1102. No other statute, code or article is affected by the proposed amendments.

§534.2.Processing Fees for Dishonored Payments [Checks].

(a) If a payment [check drawn] to the commission is dishonored by a payor, the commission shall charge a fee of $25 to the drawer or endorser for processing the dishonored payment [check]. The commission shall notify the drawer or endorser of the fee by sending a request for payment of the dishonored check and the processing fee by certified mail to the last known business address of the person as shown in the records of the commission. If the commission has sent a request for payment in accordance with the provisions of this section, the failure of the drawer or endorser to pay the processing fee within 15 days after the commission has mailed the request is a violation of this section.

(b) Collection of the fee imposed under this section does not preclude the commission from proceeding under Texas Occupations Code, §1101.652(a)(4) [ Civil Statutes, Article 6573a, §15(a)(4) ], against a licensee who has within a reasonable time failed to make good a payment [check] issued to the commission.

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

Filed with the Office of the Secretary of State on October 28, 2008.

TRD-200805687

Loretta R. DeHay

Assistant Administrator and General Counsel

Texas Real Estate Commission

Earliest possible date of adoption: December 14, 2008

For further information, please call: (512) 465-3900


CHAPTER 535. GENERAL PROVISIONS

SUBCHAPTER E. REQUIREMENTS FOR LICENSURE

22 TAC §535.51

The Texas Real Estate Commission (TREC) proposes amendments to §535.51 concerning General Requirements and proposes to adopt by reference ten revised application forms. The amendments are proposed to adopt by reference the ten revised forms to clarify and, when possible, simplify certain licensure requirements for applicants and renewing licensees. All ten forms revise the language of the question regarding the criminal background of the applicant, designated manager, or designated officer to clarify that deferred adjudication must be disclosed to the Commission. Form BLC-6, Application for a Real Estate Broker License by a Corporation, is also updated to reflect current terminology regarding corporate records as amended by the Texas Business Organizations Code. Form BLR-9, Application for Late Renewal of a Real Estate Broker License, is also updated to simplify the fee structure by eliminating a separate category of fees for expired licensees who are applying for late renewal after the license expired under a previous fee structure. Form BLRC-6, Application for Late Renewal of Real Estate Broker License by a Corporation, is also updated both to incorporate the corporate terminology changes of form BLC-6 and to eliminate the separate category of fees as in form BLR-9. Form SLR-10, Application for Late Renewal of Real Estate Salesperson License, is also updated to eliminate the separate category of fees as in form BLR-9. Form BLLLC-6, Application for Real Estate Broker License by a Limited Liability Company, is also updated to reflect current terminology regarding records of limited liability companies as amended by the Texas Business Organizations Code. Form BLRLLC-6, Application for Late Renewal of a Real Estate Broker License by a Limited Liability Company, is also updated both to incorporate the limited liability company terminology changes of form BLLLC-6 and to eliminate the separate category of fees as in form BLR-9.

Devon V. Bijansky, Assistant General Counsel, has determined that for the first five-year period the amendments are in effect, there will be no fiscal implications for state or local governments as a result of enforcing or administering the amendments. There is no anticipated economic cost to persons who are required to comply with the proposed rules. There is no anticipated impact on small businesses, micro-businesses, or local or state employment as a result of implementing the sections.

Ms. Bijansky also has determined that for each year of the first five years the sections as proposed are in effect the public benefit anticipated as a result of enforcing the sections will be greater clarity for applicants and renewing licensees regarding the fees, required documentation, and questions relating to honesty, integrity, and trustworthiness.

Comments on the proposed amendment may be submitted to Devon V. Bijansky, Assistant General Counsel, Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188.

The amendment is proposed under Texas Occupations Code, §1101.151, which authorizes the Texas Real Estate Commission to make and enforce all rules and regulations necessary for the performance of its duties and to establish standards of conduct and ethics for its licensees in keeping with the purpose and intent of the Act to ensure compliance with the provisions of the Act.

The statutes affected by this proposal are Texas Occupations Code, Chapter 1101. No other statute, code or article is affected by the proposed amendment.

§535.51.General Requirements.

(a) - (d) (No change.)

(e) The commission adopts by reference the following forms approved by the commission which are published by and available from the Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188:

(1) Application for a Real Estate Broker License, TREC Form BL-9 [8];

(2) Application for a Real Estate Broker License by a Corporation, TREC Form BLC-6 [5];

(3) [Effective September 1, 2007,] Application for Late Renewal of A Real Estate Broker License, TREC Form BLR- 9 [8];

(4) [Effective September 1, 2007,] Application for Late Renewal of Real Estate Broker License by a Corporation, TREC Form BLRC-6 [5];

(5) [Effective November 1, 2007,] Application for Real Estate Salesperson License, TREC Form SL-12 [11];

(6) [Effective September 1, 2007,] Application for Late Renewal of Real Estate Salesperson License, TREC Form SLR- 10 [9];

(7) Application for Moral Character Determination, TREC Form MCD-6 [5];

(8) Application for Real Estate Broker License by a Limited Liability Company, TREC Form BLLLC-6 [5];

(9) [Effective November 1, 2007,] Application of Currently Licensed Real Estate Broker for Salesperson License, TREC Form BSL-7 [6]; and

(10) [Effective September 1, 2007,] Application for Late Renewal of a Real Estate Broker License by a Limited Liability Company, TREC Form BLRLLC-6 [5].

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 October 28, 2008.

TRD-200805688

Loretta R. DeHay

Assistant Administrator and General Counsel

Texas Real Estate Commission

Earliest possible date of adoption: December 14, 2008

For further information, please call: (512) 465-3900


22 TAC §535.52

The Texas Real Estate Commission (TREC) proposes amendments to 22 TAC §535.52 concerning Individuals.

The proposed amendments to §535.52 clarify the conduct that the commission believes tends to demonstrate that an applicant for a license or registration with the commission does not meet the requisite honesty, trustworthiness, and integrity required by Texas Occupations Code Chapters 1101 and 1102.

Loretta R. DeHay, General Counsel, has determined that for the first five-year period the sections are in effect there will be no fiscal implications for the state or for units of local government as a result of enforcing or administering the sections. There is no anticipated impact on small businesses, micro-businesses or local or state employment as a result of implementing the sections.

Ms. DeHay also has determined that for each year of the first five years the sections as proposed are in effect the public benefit anticipated as a result of enforcing the sections will be consistent application of statutory requirements for application for a license or registration filed with the commission. There is no anticipated economic cost to persons who are required to comply with the proposed amendments.

Comments on the proposal may be submitted to Loretta R. DeHay, General Counsel, Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188.

The amendments to the rule are proposed under Texas Occupations Code, §1101.151, which authorizes the Texas Real Estate Commission to make and enforce all rules and regulations necessary for the performance of its duties and to establish standards of conduct and ethics for its licensees in keeping with the purpose and intent of the Act to insure compliance with the provisions of the Act.

The statutes affected by this proposal are Texas Occupations Code, Chapters 1101 and 1102. No other statute, code or article is affected by the proposed amendments.

§535.52.Individuals.

(a) The commission may deny a license to [disapprove ] an [application if the] applicant who fails to satisfy the commission as to the honesty, trustworthiness, or integrity of the applicant under Texas Occupations Code, §§1101.354, 1102.107, 1102.108, and 1102.109; and §535.400 of this title.

(b) Conduct that tends to demonstrate that an applicant does not possess the requisite honesty, trustworthiness or integrity includes, but is not limited to:

(1) a plea of guilty or nolo contendere to or a conviction of any offense listed in §541.1 of this title (relating to Criminal Offense Guidelines);

(2) failing to successfully or satisfactorily complete any term or condition of parole, supervised release, probation, or community supervision;

(3) providing false or misleading information to the commission;

(4) disciplinary action taken against, or the surrender of, any other professional or occupational license or registration, in this or any other state;

(5) engaging in activities for which a license or registration is required without having the legal authorization to do so, in this or any other state;

(6) violating any provision of Texas Occupations Code, Chapter 1101 or 1102;

(7) violating any provision of Chapters 531, 533, 535 or 537 of this title;

(8) failing to pay a judgment (including any court-ordered costs, fees, penalties, or damages), that is not otherwise discharged in bankruptcy.

(c) [(b)] Texas residents who enter [the ] military service and resume their Texas residence immediately upon separation from the military are not considered to have lost their Texas residence unless they have affirmatively established legal residence elsewhere.

(d) [(c)] The fact that an individual has had disabilities of minority removed does not affect the requirement that an applicant be 18 years of age to be eligible for a license.

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 October 28, 2008.

TRD-200805689

Loretta R. DeHay

Assistant Administrator and General Counsel

Texas Real Estate Commission

Earliest possible date of adoption: December 14, 2008

For further information, please call: (512) 465-3900


SUBCHAPTER T. EASEMENT OR RIGHT-OF-WAY AGENTS

22 TAC §535.400

The Texas Real Estate Commission (TREC) proposes amendments to §535.400 concerning Registration of Easement or Right-of-Way Agents and proposes to adopt by reference two revised application forms. The amendments are proposed to adopt by reference the revised forms to clarify certain licensure requirements for applicants. Both forms revise the language of the question regarding the criminal background of the applicant, designated manager, or designated officer to clarify that deferred adjudication must be disclosed to the Commission. Form ERW 2-3, Application For Easement Or Right-of-Way Agent Registration For A Business, is also updated to reflect current terminology regarding corporate records as amended by the Texas Business Organizations Code.

Devon V. Bijansky, Assistant General Counsel, has determined that for the first five-year period the amendments are in effect, there will be no fiscal implications for state or local governments as a result of enforcing or administering the amendments. There is no anticipated economic cost to persons who are required to comply with the proposed new rules. There is no anticipated impact on small businesses, micro-businesses, or local or state employment as a result of implementing the sections.

Ms. Bijansky also has determined that, for each year of the first five years the sections as proposed are in effect, the public benefit anticipated as a result of enforcing the sections will be greater clarity for applicants regarding required fees and supporting documentation.

Comments on the proposed amendment may be submitted to Devon V. Bijansky, Assistant General Counsel, Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188.

The amendment is proposed under Texas Occupations Code, §1101.151, which authorizes the Texas Real Estate Commission to make and enforce all rules and regulations necessary for the performance of its duties and to establish standards of conduct and ethics for its licensees and certificate holders in keeping with the purpose and intent of the Act to ensure compliance with the provisions of the Act.

The statutes affected by this proposal are Texas Occupations Code, Chapter 1101. No other statute, code or article is affected by the proposed amendment.

§535.400.Registration of Easement or Right-of-Way Agents.

(a) The Texas Real Estate Commission adopts by reference the following forms approved by the Texas Real Estate Commission in 2000. These forms are published by and available from the Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188.

(1) ERW 1-3 [2], Application For Easement Or Right-of-Way Agent Registration For An Individual; and

(2) ERW 2-3 [2], Application For Easement Or Right-of-Way Agent Registration For A Business.

(b) An individual desiring to be registered by the commission as an easement or right-of-way agent must file form ERW 1-3 [2] with the commission. If the applicant is a business, the applicant must file form ERW 2-3 [2]. All applicants must submit the applicable fees set forth in The Real Estate License Act, Texas Occupations Code, Chapter 1101, (the Act). The commission will not accept an application which has been submitted without the correct filing fees or which has been submitted in pencil. A person also may apply for registration by accessing the commission's Internet web site, entering the required information on the application form and paying the appropriate fee in accordance with the instructions provided at the site by the commission. If the person is an individual, the person must provide the commission with the person's photograph and signature prior to issuance of a registration certificate. The person may provide the photograph and signature prior to the submission of an electronic application. If the applicant does not complete the application process as required by this subsection, the commission shall terminate the application.

(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 October 28, 2008.

TRD-200805691

Devon V. Bijansky

Assistant General Counsel

Texas Real Estate Commission

Earliest possible date of adoption: December 14, 2008

For further information, please call: (512) 465-3900


CHAPTER 537. PROFESSIONAL AGREEMENTS AND STANDARD CONTRACTS

22 TAC §537.51, §537.52

The Texas Real Estate Commission (TREC) proposes amendments to 22 TAC Chapter 537 by adding new §537.51 concerning Standard Contract Form TREC No. 44-0 and new §537.52 concerning Standard Contract Form TREC No. 45-0.

New 22 TAC §537.51 proposes to adopt by reference a new TREC addendum for reservation of oil, gas, and other minerals. The proposed addendum would be used in situations where a seller in a real estate transaction wishes to reserve all or an identified percentage interest in the mineral estate owned by the seller, as defined in the addendum.

New 22 TAC §537.52 proposes to adopt by reference a new TREC short sale addendum. The proposed addendum would be used in transactions where the seller requires the consent of the lienholder to sell the property and the lienholder agrees to accept the seller's net proceeds in full satisfaction of seller's liability under the mortgage loan.

Texas real estate licensees are generally required to use forms promulgated by TREC when negotiating contacts for the sale of real property. These forms are drafted by the Texas Real Estate Broker-Lawyer Committee, an advisory body consisting of six attorneys appointed by the President of the State Bar of Texas, six brokers appointed by TREC, and a public member appointed by the governor.

Loretta R. DeHay, General Counsel, has determined that for the first five-year period the sections are in effect there will be no fiscal implications for the state or for units of local government as a result of enforcing or administering the sections. There is no anticipated impact on small businesses, micro-businesses or local or state employment as a result of implementing the sections.

Ms. DeHay also has determined that for each year of the first five years the sections as proposed are in effect the public benefit anticipated as a result of enforcing the sections will be the availability of current standard contract forms. There is no anticipated economic cost to persons who are required to comply with the proposed sections other than the costs of obtaining copies of the forms, which would be available at no charge through the TREC web site.

Comments on the proposal may be submitted to Loretta R. DeHay, General Counsel, Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188 or draft-contracts@trec.state.tx.us.

The amendments are proposed under Texas Occupations Code, §1101.151, which authorizes the Texas Real Estate Commission to adopt and enforce rules necessary to administer Chapter 1101; and to establish standards of conduct and ethics for its licensees to fulfill the purposes of Chapter 1101 and ensure compliance with Chapter 1101.

The statute affected by this proposal is Texas Occupations Code, Chapter 1101. No other statute, code or article is affected by the proposed amendments.

§537.51.Standard Contract Form TREC No. 44-0.

The Texas Real Estate Commission adopts by reference standard contract form TREC No. 44-0 approved by the Texas Real Estate Commission in 2008 for use as an addendum to be added to promulgated forms of contacts for the reservation of oil, gas, and other minerals. This document is published by and available from the Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188, www.trec.state.tx.us.

§537.52. Standard Contract Form TREC No. 45-0.

The Texas Real Estate Commission adopts by reference standard contract form TREC No. 45-0 approved by the Texas Real Estate Commission in 2008 for use as an addendum to be added to promulgated forms of contracts in the short sale of property. This document is published by and available from the Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188, www.trec.state.tx.us.

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 October 28, 2008.

TRD-200805692

Loretta R. DeHay

Assistant Administrator and General Counsel

Texas Real Estate Commission

Earliest possible date of adoption: December 14, 2008

For further information, please call: (512) 465-3900


CHAPTER 541. RULES RELATING TO THE PROVISIONS OF TEXAS OCCUPATIONS CODE, CHAPTER 53

22 TAC §541.1

The Texas Real Estate Commission (TREC) proposes amendments to 22 TAC §541.1 concerning Criminal Offense Guidelines.

The proposed amendments to §541.1 clarify the types of criminal offenses that the commission believes relate to the duties and responsibilities of a real estate broker, salesperson, easement or right-of-way agent, professional inspector, real estate inspector, or apprentice inspector in that the offenses tend to demonstrate the person's inability to represent the interest of another with honesty, trustworthiness and integrity required by Texas Occupations Code, Chapters 1101 and 1102.

Loretta R. DeHay, General Counsel, has determined that for the first five-year period the sections are in effect there will be no fiscal implications for the state or for units of local government as a result of enforcing or administering the sections. There is no anticipated impact on small businesses, micro-businesses or local or state employment as a result of implementing the sections.

Ms. DeHay also has determined that for each year of the first five years the sections as proposed are in effect the public benefit anticipated as a result of enforcing the sections will be consistent application of criminal offense guidelines. There is no anticipated economic cost to persons who are required to comply with the proposed amendments.

Comments on the proposal may be submitted to Loretta R. DeHay, General Counsel, Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188.

The amendments to the rule are proposed under Texas Occupations Code, §1101.151, which authorizes the Texas Real Estate Commission to make and enforce all rules and regulations necessary for the performance of its duties and to establish standards of conduct and ethics for its licensees in keeping with the purpose and intent of the Act to insure compliance with the provisions of the Act.

The statutes affected by this proposal are Texas Occupations Code, Chapters 1101 and 1102. No other statute, code or article is affected by the proposed amendments.

§541.1.Criminal Offense Guidelines.

(a) For the purposes of Texas Occupations Code, Chapter 53, §§1101.354, 1102.107, 1102.108, 1102.109, and §535.400(f) of this title, the Texas Real Estate Commission considers that the following [felonies or misdemeanors to be ] criminal offenses [which may be] directly relate [related] to the duties and responsibilities of a [the occupation of ] real estate broker, real estate salesperson, easement or right-of-way agent, professional inspector, real estate inspector or apprentice inspector for the reason that the commission of the [following criminal] offenses tends to demonstrate the person's inability to represent the interest of another with honesty, trustworthiness and integrity:

(1) offenses involving fraud or misrepresentation;

(2) offenses involving forgery, falsification of records, or perjury;

(3) offenses involving the taking of bribes, kickbacks, or other illegal compensation;

(4) [(2)] offenses against real or personal property belonging to another, if committed knowingly or intentionally;

(5) offenses against the person;

(6) [(3)] offenses against public administration;

(7) [(4)] offenses involving the sale or other disposition of real or personal property belonging to another without authorization of law;

(8) [(5)] offenses involving moral turpitude;

(9) offenses in violation of Chapter 21, Texas Penal Code (sexual offenses);

(10) offenses for which the person has been required to register as a sex offender under Chapter 62, Texas Code of Criminal Procedure;

(11) [(6)] offenses of attempting or conspiring to commit any of the foregoing offenses;[.]

(12) offenses involving aiding and abetting the commission of an offense listed in this section;

(13) multiple violations of any criminal statute; and

(14) any other offense that the commission determines is directly related to an occupation regulated by the commission using the factors described in subsection (b) of this section.

(b) In determining whether a criminal offense listed in subsection (a) of this section or any other criminal offense is directly related to an occupation regulated by the commission, the commission shall consider and make appropriate findings of fact in a contested case upon the following factors:

(1) the nature and seriousness of the crime;

(2) the relationship of the crime to the purposes for requiring a license to engage in the occupation;

(3) the extent to which a license might offer an opportunity to engage in further criminal activity of the same type as that in which the person previously had been involved; and

(4) the relationship of the crime to the ability, capacity, or fitness required to perform the duties and discharge the responsibilities of the licensed occupation.

(c) In addition to the factors [that may be considered ] under subsection (b) of this section, the commission, in determining a person's [the] present fitness for a license [of a person who has been convicted of a crime], shall consider the following evidence:

(1) the extent and nature of the person's past criminal activity;

(2) the age of the person at the time of the commission of the offense [crime];

(3) the amount of time that has elapsed since the person's last criminal activity;

(4) the conduct and work activity of the person prior to and following the criminal activity;

(5) the person's compliance with the court-ordered terms and conditions while on parole, supervised release, probation, or community supervision;

(6) the person's repeated offenses over a period of time which tend to demonstrate a lack of respect for, disregard for, or apparent inability to comply with, the law;

(7) the time remaining, if any, on the person's term of parole, supervised release, probation, or community supervision;

(8) [(5)] evidence of the person's rehabilitation or rehabilitative effort while incarcerated or following release; and

(9) [(6)] other evidence of the person's present fitness, including letters of recommendation from: prosecution, law enforcement, and correctional officers who prosecuted, arrested, or had custodial responsibility for the person; the sheriff and chief of police in the community where the person resides; and any other persons in contact with the [convicted] person.

(d) It shall be the responsibility of the applicant to provide to the commission:

(1) the recommendations of prosecution, law enforcement, and correctional authorities;

(2) signed letters of character reference from persons in the applicant's business or professional community which confirm that the writer knows about the applicant's prior criminal conduct;

(3) proof in such form as may be required by the commission that he or she has maintained a record of steady employment;

(4) proof that the applicant has supported his or her dependents, if any;

(5) proof that the applicant has maintained a record of good conduct;

(6) proof that the applicant has paid all outstanding court costs, supervision fees, fines, and restitution as may have been ordered in all criminal cases; and

(7) if the applicant submits a letter of character reference from a prospective sponsor, the letter must confirm that the writer knows about the applicant's prior criminal conduct.

[(d) It shall be the responsibility of the applicant to the extent possible to secure and provide to the commission the recommendations of the prosecution, law enforcement, and correctional authorities; the applicant shall also furnish proof in such form as may be required by the commission that he or she has maintained a record of steady employment and has supported his or her dependents and has otherwise maintained a record of good conduct and has paid all outstanding court costs, supervision fees, fines, and restitution as may have been ordered in all criminal cases in which he or she has been convicted.]

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 October 28, 2008.

TRD-200805693

Loretta R. DeHay

Assistant Administrator and General Counsel

Texas Real Estate Commission

Earliest possible date of adoption: December 14, 2008

For further information, please call: (512) 465-3900