PART 11. TEXAS BOARD OF NURSING
CHAPTER 221. ADVANCED PRACTICE NURSES
The Texas Board of Nursing (Board) adopts amendments to §221.4 and §221.6 and the repeal of §221.5, concerning Advanced Practice Nurses, without changes to the proposed text as published in the August 8, 2008, issue of the Texas Register (33 TexReg 6305) and will not be republished.
The proposed amendments and repeal are necessary for the purpose of aligning 22 TAC Chapter 221 with Chapter 305 of the Nursing Practice Act (the Advanced Practice Registered Nurse (APRN) Compact) and national standards.
At its October 2007 meeting, the Board charged the Advanced Practice Nursing Advisory Committee (APNAC) with reviewing Rule 221 and discussing issues related to recognition of advanced practice nurses in preparation for implementation of the APRN Compact. As part of its discussion, the Board directed the APNAC to examine two specific issues. First, the issue of whether Texas should begin referring to nurses in advanced practice as APRNs rather than as APNs (advanced practice nurses). APRN is the term utilized in the compact language, and the term clearly identifies the licensee as both an advanced practice nurse and a registered nurse. It was the consensus of the APNAC to recommend that the Board begin using APRN in order to be consistent with Chapter 305 of the Nursing Practice Act.
The other issue the Board directed the APNAC to discuss is whether it would be in the best interest of the public to refer to authorization to practice as licensure rather than continuing to refer to advanced practice approval as an authorization that is linked to registered nurse (RN) licensure. The process used to review and approve applicants as advanced practice nurses is a licensure process, even though it is not presently called a license. Calling the approval a license will not change the advanced practice nurse's scope of practice in any way. The APRN's scope of practice will remain as set forth in current laws and regulations.
The Board utilizes a licensure process because it believes advanced practice nursing has evolved as a result of the complexity of services provided and the level of knowledge, skills, and competence required by individuals who provide such care. The services provided by APRNs exceed the scope of practice of RNs. Therefore, the potential for harm to the public is significantly greater for APRNs than for RNs, and a higher level of accountability is necessary. The Board's approval process ensures public protection through activities that include but are not limited to a detailed review of the individual's advanced practice nursing educational preparation related to the specialty for which he/she is seeking approval, verification of current RN licensure, and verification of appropriate national certification in the role and specialty that is congruent with the advanced practice nursing education. At least 50% of boards that are members of the National Council of State Boards of Nursing (NCSBN) already refer to their approval process for nurse anesthetists, nurse midwives and nurse practitioners as licensure. Nearly 40% also license clinical nurse specialists (NCSBN Member Board Profiles, data last updated January 22, 2008).
Typically, licensure is considered the preferred method of regulation when the regulated activities are complex, requiring specialized knowledge, skills, and decision-making. Licensure in any profession is required when the potential for greater risk of harm to the public exists and the professional must be held to the highest level of accountability. Another key element of licensure is a unique and identifiable scope of practice. APRNs are engaged in activities that may include functions such as making medical diagnoses and ordering appropriate pharmacologic and non-pharmacologic care in collaboration with a delegating physician. The knowledge, skills and abilities required to provide advanced practice nursing care significantly exceed those acquired through entry-level nursing education programs that prepare individuals as RNs. Likewise, their scope of practice goes well beyond that of the RN and cannot be performed without completing an advanced practice nursing educational program. Therefore, the Board has established the minimum qualifications necessary for safe and competent practice, and applications for licensure are reviewed to determine that all qualifications have been met.
Calling the approval a license is not intended to replace RN licensure; rather, it will assist the public by providing greater clarity in identifying those RNs who are eligible to practice as APRNs in this state. The public is familiar with the concept of licensure for LVNs and RNs, and this change would reinforce to the public that APRNs complete formal education beyond the RN level and must meet certain criteria to practice at the advanced practice level. The APNAC recommends that the Board consider using the term licensure to describe the advanced practice recognition process.
One of the biggest changes recommended by the APNAC is to eliminate provisional authorization to practice for new graduates. The public, employers, and legislators have relayed to staff that the concept of provisional authorization is confusing. Eliminating this level will help to eliminate the confusion associated with it. Additionally, all certifying examinations are available via computer testing methods, allowing applicants to test quickly after graduation. Based on data from the NCSBN, graduates who delay taking VN or RN licensure examinations after graduation are less likely to be successful. It is reasonable to consider that this same concept is applicable to APRNs and certification examinations. In order to allow adequate time for test results to be received, the APNAC also recommends changing the interim approval period to 120 days from the current 90.
The following comments were received:
Summary of Comment 1: The Board failed to clarify in its preamble that advanced practice registered nurses make medical diagnoses under the delegated authority of a physician rather than independently. This could mislead advanced practice registered nurses.
Response to Comment 1: The Board disagrees with the comment that the preamble is misleading. It does not dispute that physician delegation is required when advanced practice nurses provide medical aspects of patient care, and this is provided for in current law. Requirements for physician delegation are clearly stated in Rule 221.13(d). It was not the intent of the preamble to address how the legal authority to provide medical aspects of care is derived. The term medical diagnosis was not intended to be part of the rule and was not included in the rule. Advanced practice nurses are required to know and comply with the laws and regulations that govern their practice, including those requirements for physician delegation when providing medical aspects of patient care, and there is no intent to change the requirements provided for in state law.
Summary of Comment 2: The Board's proposal to call the advanced practice approval process "licensure" exceeds its statutory authority.
Response to Comment 2: The Board disagrees with the comment that the Board is without lawful authority to call approval for advance practice a license. Advance practice approval is Board recognition that the individual has met the minimum requirements necessary to hold themselves out as an advance practice nurse and to practice advance nursing. A person approved for advanced practice is entitled to due process before such recognition is taken away. Using the term licensure or license in the context of rule 221 does not change any substantive aspect of the Board's approval process for advance practice other than to simplify the terminology and provide a logical numbering system to the approval.
The amendments are adopted 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.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on November 3, 2008.
TRD-200805790
James W. Johnston
General Counsel
Texas Board of Nursing
Effective date: November 23, 2008
Proposal publication date: August 8, 2008
For further information, please call: (512) 305-6811
The repeal is adopted 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.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on November 3, 2008.
TRD-200805791
James W. Johnston
General Counsel
Texas Board of Nursing
Effective date: November 23, 2008
Proposal publication date: August 8, 2008
For further information, please call: (512) 305-6811
CHAPTER 535. GENERAL PROVISIONS
SUBCHAPTER F. EDUCATION, EXPERIENCE, EDUCATIONAL PROGRAMS, TIME PERIODS AND TYPE OF LICENSE
The Texas Real Estate Commission (TREC) adopts amendments to §535.64 concerning Accreditation of Schools and Approval of Courses and Instructors without changes to the published text as proposed in the September 5, 2008, issue of the Texas Register (33 TexReg 7400) and will not be republished.
The amendments to §535.64 address the requirements of Texas Occupations Code §1101.301 and §1101.304 regarding the collection of exam passage rate data on graduates of TREC-accredited real estate schools. The amendments clarify that the last course taken for purposes of the data to be collected is the last core course taken from a TREC-accredited provider with 2 years of the date the person filed an education evaluation with the commission. Courses taken at schools that are not accredited by TREC, such as colleges and universities, will be not be collected or counted. The amendments also clarify that each type of licensing exam that a graduate takes for the first time will have a school affiliation unless the last core course taken by the applicant was taken at a school that was not TREC-accredited, or the course was taken more than 2 years before the date the graduate submitted an education evaluation to the commission.
The reasoned justification for the amendments to the rule is to implement statutory requirements to track exam passage rate on graduates of TREC-accredited real estate schools.
No comments were received on the amendments as proposed.
The amendments to the rule are adopted 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 adoption are Texas Occupations Code, Chapters 1101 and 1102. No other statute, code or article is affected by the adopted amendments.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on October 28, 2008.
TRD-200805694
Loretta R. DeHay
Assistant Administrator and General Counsel
Texas Real Estate Commission
Effective date: November 17, 2008
Proposal publication date: September 5, 2008
For further information, please call: (512) 465-3900
The Texas Real Estate Commission (TREC) adopts an amendment to §535.101, regarding Fees without changes to the proposed text as published in the September 5, 2008, issue of the Texas Register (33 TexReg 7401) and will not be republished.
The amendment increases the examination fee for salesperson and broker applicants from $59 to $61. The reasoned justification for the rule is to charge the examination fee to reflect the cost under the new contract for examination administration services contract effective September 1, 2008. This fee reflects the amount the examination vendor charges directly to applicants and does not affect the amount of revenue collected by the agency.
No comments were received on the amendment as proposed.
The amendment is adopted 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 adoption is Texas Occupations Code, Chapter 1101. No other statute, code or article is affected by the adopted amendment.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on October 28, 2008.
TRD-200805695
Loretta R. DeHay
Assistant Administrator and General Counsel
Texas Real Estate Commission
Effective date: November 17, 2008
Proposal publication date: September 5, 2008
For further information, please call: (512) 465-3900
The Texas Real Estate Commission (TREC) adopts an amendment to §535.210 regarding Fees without changes to the proposed text as published in the September 5, 2008, issue of the Texas Register (33 TexReg 7401) and will not be republished.
The amendment increases the examination fee for home inspector applicants from $59 to $61. The reasoned justification for the rule is to charge the examination fee to reflect the cost under the new contract for examination administration services contract effective September 1, 2008. This fee reflects the amount the examination vendor charges directly to applicants and does not affect the amount of revenue collected by the agency.
No comments were received on the amendment as proposed.
The amendment is adopted 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 and Chapter 1102.
The statutes affected by this adoption are Texas Occupations Code, Chapter 1101 and Chapter 1102. No other statute, code or article is affected by the adopted amendment.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on October 28, 2008.
TRD-200805696
Loretta R. DeHay
Assistant Administrator and General Counsel
Texas Real Estate Commission
Effective date: November 17, 2008
Proposal publication date: September 5, 2008
For further information, please call: (512) 465-3900
The Texas Real Estate Commission (TREC) adopts new rule §535.222 concerning inspection reports without changes to the proposed text as published in the September 5, 2008, issue of the Texas Register (33 TexReg 7402), which will not be republished. The rule clarifies the inspection reporting requirements as recommended by the Texas Real Estate Inspector Committee, an advisory committee of six professional inspectors and three public members appointed by TREC. The rule clarifies that all inspections performed pursuant to an inspector license issued by TREC must be reported in writing and establishes general requirements regarding information contained in the report and delivery to the client. The rule will be effective February 1, 2009.
The reasoned justification for this rule is increased clarity for inspectors and consumers alike regarding the requirements of a written inspection report.
No comments were received regarding the new rule as proposed.
The new section is adopted 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.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on November 3, 2008.
TRD-200805773
Devon V. Bijansky
Assistant General Counsel
Texas Real Estate Commission
Effective date: February 1, 2009
Proposal publication date: September 5, 2008
For further information, please call: (512) 465-3900
The Texas Real Estate Commission (TREC) adopts the repeal of §535.223 concerning standard inspection report forms as published in the September 5, 2008, issue of the Texas Register (33 TexReg 7403). The repeal is necessary because the subjects addressed in this section will be covered in new §535.222 and §535.223 TREC is simultaneously adopting as part of the Real Estate Inspector Committee's comprehensive review and recommendations regarding inspector standards of practice and reporting requirements. The new §535.222 and §535.223, otherwise explained in this issue of the Texas Register , adopt by reference a revised standard inspection report form, clarify that a written inspection report is required for all inspections performed pursuant to an inspector license issued by TREC, and clarify when the standard form is required and how it may be modified by licensees. The repeal will be effective February 1, 2009.
The reasoned justification for the repeal as adopted is clarification for inspectors and consumers alike regarding the use of the standard inspection report form.
No comments were received regarding the repeal as proposed. The Commission received comments regarding new §535.223 as proposed; those comments are addressed in this issue of the Texas Register in conjunction with the adoption of the new section.
The repeal is adopted 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.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on November 3, 2008.
TRD-200805774
Devon V. Bijansky
Assistant General Counsel
Texas Real Estate Commission
Effective date: February 1, 2009
Proposal publication date: September 5, 2008
For further information, please call: (512) 465-3900
The Texas Real Estate Commission (TREC) adopts new §535.223 concerning standard inspection report forms without changes to the proposed text as published in the September 5, 2008, issue of the Texas Register (33 TexReg 7403), which will not be republished. The new rule, effective February 1, 2009, adopts by reference a revised standard inspection report form and clarifies when the form is required and how it may be modified by licensees. TREC has a statutory duty to adopt standard inspection report forms and to adopt rules requiring licensed inspectors to use the report forms under Senate Bill Number 1100, 75th Legislature (1997).
The new §535.223 has been recommended by the Texas Real Estate Inspector Committee, an advisory committee of six professional inspectors and three public members appointed by TREC, to correspond to proposed revisions to the inspector standards of practice that are otherwise explained in this issue of the Texas Register.
The reasoned justification for the new §535.223 is increased clarity for inspectors and consumers alike regarding the use of the standard inspection report form and an improved form that corresponds with improvements to the standards of practice (22 TAC §§535.227 - 535.233).
The TREC received eleven comments during the notice and comment period regarding adoption of the new rule.
Comment: Six commenters suggested adding an exception to the standard form requirement for relocation inspections so that inspections performed for relocation companies could be reported on a different form, such as an industry form, with appropriate language notifying the public that the inspection was not performed in accordance with the TREC standards of practice.
Response: The Commission respectfully disagrees with the comment because such an exception existed in §535.223 until August 2006 and was repealed because the required notice was rarely, if ever, used. While the matter may be discussed further in the future, the Commission does not deem it appropriate to allow the exception at this time.
Comment: One commenter suggested adding a separate category to the standard form for driveways and sidewalks.
Response: The Commission respectfully disagrees with the comment because deficiencies in these components are generally either related to structural performance/water retention and should be reported in the appropriate structural section, or cosmetic. Cosmetic defects are not required to be reported but may be reported in the optional section of the form.
Comment: One commenter expressed general dissatisfaction with the proposed inspection report form but did not indicate any specific issues other than implying a preference for the current form (REI 7A-0) because he purchased reporting software for that form.
Response: The Commission respectfully disagrees with the comment because the new form incorporates substantial improvements over the old form, and the cost of new reporting software is minimal.
Comment: One commenter raised a number of questions about use of the report form and made several stylistic suggestions, including moving the "Comments" heading below the section headings for consistency throughout the report; removing the coliform notice from the water well section due to concerns that it is confusing; and deleting the serial of "Oxford" comma from lists of three or more items on the report.
Response: The Commission respectfully disagrees with the comments, as the "Comments" heading is consistently below the section heading when there are other subheadings and to the right of the heading (to save space on the form) when there are not; the Commission is unaware of the same coliform notice leading to confusion in the past; and while it is acceptable to use or omit the serial comma, most authorities on American English recommend its use.
Comment: One commenter suggested adding the following notice to the informational text on the front of the standard report form: "At virtually every inspection, there are items that are not able to be inspected or operated due to accessibility, inspector safety occupant needs or health, temperatures, and other weather conditions. The inspector is not required to re-visit the property to inspect the item or items."
Response: The Commission respectfully disagrees because the informational text on the standard report form already addresses the limitations of the inspection.
Comment: One commenter suggested changing the term "Deficiency" to "Deficient" in the heading on the report form to conform with the requirements throughout the Standards of Practice that issues be reported as "Deficient."
Response: The Commission respectfully disagrees because, while either term would be appropriate, consumers reviewing their inspection reports will likely think in terms of "deficiencies," rather than "deficient systems" or "deficient components," and the definitions section of 22 TAC §535.227 explains the relationship between the terms "deficient" and "deficiency."
The new section is adopted 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.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on November 3, 2008.
TRD-200805775
Devon V. Bijansky
Assistant General Counsel
Texas Real Estate Commission
Effective date: February 1, 2009
Proposal publication date: September 5, 2008
For further information, please call: (512) 465-3900
The Texas Real Estate Commission (TREC) adopts the repeal of §§535.227 - 535.231, concerning inspector standards of practice, as proposed in the September 5, 2008, issue of the Texas Register (33 TexReg 7404). The subjects addressed in these sections will be covered in new §§535.227 - 535.233 TREC is simultaneously adopting as part of the Real Estate Inspector Committee's comprehensive review and recommendations regarding inspector standards of practice. The new rules, otherwise explained in this issue of the Texas Register, divide the standards of practice for inspectors into seven sections (two additional sections) and contain a number of substantive changes recommended by the Texas Real Estate Inspector Committee, an advisory committee of six professional inspectors and three public members appointed by TREC. This repeal will be effective February 1, 2009.
As the new sections will comprehensively address the subjects of the repealed rules, repeal of the existing rules is necessary to avoid confusion and repetition.
The reasoned justification for the repeal of these rules and the adoption of the new rules is revision of professional standards for home inspections to be clearer and to reflect new technologies and building practices.
No comments were received regarding the repeal as proposed. Several comments were received regarding the new rules. These comments are addressed in conjunction with the adoption of the new §§535.227 - 535.233.
The repeal is adopted 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.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on November 3, 2008.
TRD-200805776
Devon V. Bijansky
Assistant General Counsel
Texas Real Estate Commission
Effective date: February 1, 2009
Proposal publication date: September 5, 2008
For further information, please call: (512) 465-3900
The Texas Real Estate Commission (TREC) adopts new rules §§535.227 - 535.233 concerning inspector standards of practice. Sections 535.228, 535.229, and 535.231 are adopted with changes to the text as published in the September 5, 2008, issue of the Texas Register (33 TexReg 7405), as follows: "and surface" was added after "underground" in §535.228(d)(3) in order to make clear that this provision is consistent with §535.227(b)(3)(I); "devices...including improper location" was added to §535.229(c)(3)(G) in order to clarify that all types of electrical devices are included in this provision and that improper location is a deficiency; and the numbering of §535.231(c) is changed because the proposed draft erroneously included two paragraph (3)s. The revisions to the rules as adopted do not change the nature or scope so much that they could be deemed different rules. The rules as adopted do not affect individuals other than those contemplated by the rules as proposed. The rules as adopted do not impose more onerous requirements than the proposed versions and do not materially alter the issues raised in the proposed rules. Changes in the adopted rules respond to public comments or otherwise reflect non-substantive variations from the proposed rules to clarify their intent and improve readability. Sections 535.227, 535.230, 535.232, and 535.233 are adopted without changes.
The new rules are adopted as a result of the Real Estate Inspector Committee's comprehensive review and recommendation regarding inspector standards of practice. The rules divide the standards of practice for inspectors into seven sections by providing two additional sections and contain a number of substantive changes recommended by the Texas Real Estate Inspector Committee, an advisory committee of six professional inspectors and three public members appointed by TREC. In order to allow a transition period for inspectors to implement any changes to their processes that may be necessary, these rules will become effective February 1, 2009.
Generally, the new sections rearrange the current standards of practice, listing the systems, components, and items in a home which the inspector must include in an inspection unless the inspector's client agrees to limit the scope of the inspection.
New §535.227 addresses general provisions which include definitions, the scope, and the departure provisions of an inspection. New §535.228 addresses minimum inspection requirements for structural systems. New §535.229 addresses minimum inspection requirements for electrical systems. New §535.230 addresses minimum inspection requirements for heating, ventilation, and air conditioning systems. New §535.231 addresses minimum inspection requirements for plumbing systems. New §535.232 addresses minimum inspection requirements for appliances. New §535.233 addresses minimum inspection requirements for optional systems.
The reasoned justification for the new sections is increased clarity for inspectors and consumers alike regarding what a home inspector is and is not required to inspect, as well as standards that more accurately reflect current technology, codes, and practices that form the basis of many of the standards.
The Commission received five comments during the notice and comment period regarding the proposed §§535.227 - 535.233.
Comment: One commenter generally supported the proposed rules but suggested adding the word "visible" to "gas lines" in §535.233(7)(a) to make clear that inspectors are not required to inspect gas lines that are not visible.
Response: The Commission respectfully disagrees with this comment, as the general limitations in §535.227(b)(3)(A)(iv), which apply to §§535.227 - 535.233, already make clear that inspectors are not required to inspect anything that is buried, hidden, latent, or concealed.
Comment: One commenter suggested changing "built-in appliances" to "in-place appliances" to include appliances such as washing machines and refrigerators.
Response: The Commission respectfully disagrees with this comment, as these items are not permanently attached to the real property and often are not conveyed with the property. Moreover, if a client wishes to have them inspected, these rules do not prohibit the inspector from including them in the inspection.
Comment: One commenter outlined several differences between the existing standards and the proposed new rules but did not express an opinion about these differences except for stating that the requirement to inspect lighting fixtures had been deleted and should be returned to the rules.
Response: The Commission respectfully disagrees with this comment, as the language of "lighting fixtures" was changed to "fixtures" in order to incorporate ceiling fans and other types of fixtures but still includes light fixtures.
Comment: One commenter raised several questions about how to interpret the proposed new rules but did not express an opinion about these issues except for suggesting that the trash compactor section be changed to an optional item.
Response: The Commission respectfully disagrees with this comment, finding that enough homes have built-in trash compactors to warrant requiring them to be inspected when present.
Comment: One commenter raised several questions and suggested a multitude of stylistic and substantive changes to the rules, including (1) incorporating the boilerplate introductory text on the proposed standard inspection report form into §535.227(b)(1); (2) adding or expanding lists of examples in many parts of the standards of practice; (3) adding "surface" to "underground drainage systems" in §535.228(d)(3); (4) changing the specific references to doors with certain fireproof characteristics to "approved rated fire door" in §535.228(k)(2)(B); (5) combining of provisions for efficiency of space; (6) specifying that the requirement to report deficiencies in the installation and termination of the plumbing vent system applies only to waste vents; and (7) requiring reporting as deficient the lack of a hot water shut-off valve under certain circumstances.
Response: The Commission respectfully disagrees with items (1), (2), and (4) - (7) above, as follows: (1) this text is largely informational for the public and does not belong on the Administrative Code; (2) additional lists of examples would only serve to confuse the reader or give the impression that they are exhaustive lists when they are not; (4) lower-quality doors may be approved and fire rated for different purposes, but this provision addresses only doors meeting the criteria to be approved for residential exterior applications; (5) the provisions that the commenter recommends combining must be kept separate for clarity and comprehension; (6) the requirement regarding deficiencies in the plumbing vent system applies to waste vents as well as other type of vents; and (7) a shut-off valve on a hot water supply line could cause excess pressure to build up in the line and cause the pipe to burst. The Commission agrees with item (3) above and has added "surface" to §535.228(d)(3) so that this limitation applies to both surface and underground drainage.
The new rules are adopted 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.
§535.228.Standards of Practice: Minimum Inspection Requirements for Structural Systems.
(a) Foundations. The inspector shall:
(1) inspect slab surfaces, foundation framing components, subflooring, and related structural components;
(2) report:
(A) the type of foundation(s); and
(B) the vantage point from which the crawl space was inspected; and
(3) generally report present and visible indications used to render the opinion of adverse performance, such as:
(A) open or offset concrete cracks;
(B) binding, out-of-square, non-latching, warped, or twisted doors or frames;
(C) framing or frieze board separations;
(D) out-of-square wall openings or separations at wall openings or between the cladding and window/door frames;
(E) sloping floors, countertops, cabinet doors, or window/door casings;
(F) wall, floor, or ceiling cracks;
(G) rotating, buckling, cracking, or deflecting masonry cladding;
(H) separation of walls from ceilings or floors; and
(I) soil erosion, subsidence or shrinkage adjacent to the foundation and differential movement of abutting flatwork such as walkways, driveways, and patios;
(4) report as Deficient:
(A) exposed or damaged reinforcement;
(B) a crawl space that does not appear to be adequately ventilated;
(C) crawl space drainage that does not appear to be adequate;
(D) deteriorated materials;
(E) damaged beams, joists, bridging, blocking, piers, posts, pilings, or subfloor;
(F) non-supporting piers, posts, pilings, columns, beams, sills, or joists; and
(G) damaged retaining walls related to foundation performance; and
(5) render a written opinion as to the performance of the foundation.
(b) Specific limitations for foundations. The inspector is not required to:
(1) enter a crawlspace or any area where headroom is less than 18 inches or the access opening is less than 24 inches wide and 18 inches high;
(2) provide an exhaustive list of indicators of possible adverse performance; or
(3) inspect retaining walls not related to foundation performance.
(c) Grading and drainage. The inspector shall report as Deficient:
(1) improper or inadequate grading around the foundation (including flatwork);
(2) erosion;
(3) water ponding; and
(4) deficiencies in installed gutter and downspout systems.
(d) Specific limitations for grading and drainage. The inspector is not required to:
(1) inspect flatwork or detention/retention ponds (except as related to slope and drainage);
(2) determine area hydrology or the presence of underground water; or
(3) determine the efficiency or operation of underground or surface drainage systems.
(e) Roof covering materials. The inspector shall:
(1) inspect the roof covering materials from the surface of the roof;
(2) report:
(A) type of roof covering(s);
(B) vantage point from where the roof was inspected
(C) any levels or surfaces that were not accessed;
(D) evidence of previous repairs to roof covering materials, flashing details, skylights, and other roof penetrations; and
(E) evidence of water penetration; and
(3) report as Deficient:
(A) a roof covering that is not appropriate for the slope of the roof;
(B) deficiencies in:
(i) fastening of roof covering material, as determined by a random sampling;
(ii) roof covering materials;
(iii) flashing details;
(iv) skylights; and
(v) other roof penetrations.
(f) Specific limitations for roof covering. The inspector is not required to:
(1) determine the remaining life expectancy of the roof covering;
(2) inspect the roof from the roof level if, in the inspector's reasonable judgment, the inspector cannot safely reach or stay on the roof or significant damage to the roof covering materials may result from walking on the roof;
(3) determine the number of layers of roof covering material;
(4) identify latent hail damage; or
(5) provide an exhaustive list of locations of water penetrations or previous repairs.
(g) Roof structure and attic. The inspector shall:
(1) report:
(A) the vantage point from which the attic space was inspected;
(B) the presence of and approximate average depth of attic insulation and thickness of vertical insulation, when visible; and
(C) evidence of water penetration; and
(2) report as Deficient:
(A) attic space that does not appear to be adequately ventilated;
(B) deficiencies in installed framing members and decking;
(C) deflections or depressions in the roof surface as related to the adverse performance of the framing and the roof deck;
(D) missing insulation;
(E) deficiencies in attic access ladder and access opening; and
(F) deficiencies in attic ventilators.
(h) Specific limitations for roof structure and attic. The inspector is not required to:
(1) enter attics or unfinished spaces where openings are less than 22 inches by 30 inches or headroom is less than 30 inches;
(2) operate powered ventilators; or
(3) provide an exhaustive list of locations of water penetrations.
(i) Interior walls, ceilings, floors, and doors. The inspector shall:
(1) report evidence of water penetration; and
(2) report as Deficient:
(A) doors and hardware that do not operate properly;
(B) deficiencies related to structural performance or water penetration; and
(C) lack of fire separation between the garage and the residence and its attic space.
(j) Specific limitation for interior walls, doors, ceilings, and floors. The inspector is not required to:
(1) report cosmetic damage or the condition of floor, wall, or ceiling coverings; paints, stains, or other surface coatings; cabinets; or countertops, or
(2) provide an exhaustive list of locations of water penetrations.
(k) Exterior walls, doors, and windows. The inspector shall:
(1) report evidence of water penetration; and
(2) report as Deficient:
(A) the lack of functional emergency escape and rescue openings in all sleeping rooms;
(B) the lack of a solid wood door not less than 1-3/8 inches in thickness, a solid or honeycomb core steel door not less than 1-3/8 inches thick, or a 20-minute fire-rated door between the residence and an attached garage;
(C) missing or damaged screens;
(D) deficiencies related to structural performance or water penetration; and
(E) deficiencies in:
(i) claddings;
(ii) water resistant materials and coatings;
(iii) flashing details and terminations;
(iv) the condition and operation of exterior doors, garage doors, and hardware; and
(v) window operation and components.
(l) Specific limitations for exterior walls, doors, and windows. The inspector is not required to:
(1) report the condition or presence of awnings, shutters, security devices, or systems;
(2) determine the cosmetic condition of paints, stains, or other surface coatings; or
(3) operate a lock if the key is not available.
(m) Exterior and interior glazing. The inspector shall:
(1) inspect the window and door glazing; and
(2) report as Deficient:
(A) insulated windows that are obviously fogged or display other evidence of broken seals;
(B) deficiencies in glazing, weather stripping, and glazing compound in windows and exterior doors; and
(C) the absence of safety glass in hazardous locations.
(n) Specific limitation for exterior and interior glazing. The inspector is not required to:
(1) exhaustively observe insulated windows for evidence of broken seals;
(2) exhaustively observe glazing for identifying labels; or
(3) identify specific locations of damage.
(o) Interior and exterior stairways. The inspector shall report as Deficient:
(1) spacing between intermediate balusters, spindles, or rails for steps, stairways, guards, and railings that permit passage of an object greater than 4 inches in diameter, except that on the open side of the staircase treads, spheres less than 4-3/8 inches in diameter may pass through the guard rail balusters or spindles; and
(2) deficiencies in steps, stairways, landings, guardrails, and handrails.
(p) Specific limitation for stairways. The inspector is not required to exhaustively measure every stairway component.
(q) Fireplace and chimney. The inspector shall report as Deficient:
(1) built-up creosote in visible areas of the firebox and flue;
(2) the presence of combustible materials in near proximity to the firebox opening;
(3) the absence of fireblocking at the attic penetration of the chimney flue, where accessible;
(4) an inoperative circulating fan; and
(5) deficiencies in the:
(A) damper;
(B) lintel, hearth, hearth extension, and firebox;
(C) gas log lighter valve and location;
(D) combustion air vents; and
(E) chimney structure, termination, coping, crown, caps, and spark arrestor.
(r) Specific limitations for fireplace and chimney. The inspector is not required to:
(1) verify the integrity of the flue;
(2) perform a chimney smoke test; or
(3) determine the adequacy of the draft.
(s) Porches, Balconies, Decks, and Carports. The inspector shall:
(1) inspect balconies, attached carports, and attached porches and abutting porches, decks, and balconies that are used for ingress and egress; and
(2) report as Deficient:
(A) on decks 30 inches or higher above the adjacent grade, spacings between intermediate balusters, spindles, or rails that permit passage of an object greater than four inches in diameter;
(B) deficiencies in visible footings, piers, posts, pilings, beams, joists, decking, water proofing at interfaces, flashing, surface coverings, and attachment points of porches, decks, balconies, and carports; and
(C) deficiencies in, or absence of required, guardrails and handrails.
(t) Specific limitation for porches, balconies, decks, and carports. The inspector is not required to:
(1) exhaustively measure the porch, balcony, deck, or attached carport components; or
(2) enter any area where headroom is less than 18 inches or the access opening is less than 24 inches wide and 18 inches high.
§535.229.Standards of Practice: Minimum Inspection Requirements for Electrical Systems.
(a) Service entrance and panels. The inspector shall report as Deficient:
(1) a drop, weatherhead, or mast that is not securely fastened to the structure;
(2) the lack of a grounding electrode system;
(3) the lack of a grounding electrode conductor;
(4) the lack of a secure connection to the grounding electrode system;
(5) deficiencies in the insulation of the service entrance conductors, drip loop, separation of conductors at weatherheads, and clearances;
(6) electrical cabinets, gutters, meter cans, and panel boards that:
(A) are not secured to the structure;
(B) are not appropriate for their location;
(C) have deficiencies in clearances and accessibility;
(D) are missing knockouts; or
(E) are not bonded and grounded;
(7) cabinets, disconnects, cutout boxes, and panel boards that do not have dead fronts secured in place with proper fasteners;
(8) conductors not protected from the edges of electrical cabinets, gutters, or cutout boxes;
(9) trip ties not installed on 240 volt circuits;
(10) deficiencies in the type and condition of the wiring in the cutout boxes, cabinets, or gutters;
(11) deficiencies in the compatibility of overcurrent devices and conductors;
(12) deficiencies in the overcurrent device and circuit for labeled and listed 240 volt appliances;
(13) a panel that is installed in a hazardous location, such as a clothes closet, a bathroom, where there are corrosive or easily ignitable materials, or where the panel is exposed to physical damage;
(14) the absence of appropriate connections, such as copper/aluminum-approved devices;
(15) the absence of anti-oxidants on aluminum conductor terminations;
(16) the lack of a main disconnecting means;
(17) the lack of arc-fault circuit interrupting devices serving family rooms, dining rooms, living rooms, parlors, libraries, dens, bedrooms, sunrooms, recreations rooms, closets, hallways, or similar rooms or areas; and
(18) failure of operation of installed arc-fault circuit interrupter devices.
(b) Specific limitations for service entrance and panels. The inspector is not required to:
(1) determine present or future sufficiency of service capacity amperage, voltage, or the capacity of the electrical system;
(2) test arc-fault circuit interrupter devices when the property is occupied or damage to personal property may result, in the inspector's reasonable judgment;
(3) report the lack of arc-fault circuit interrupter protection when the circuits are in conduit;
(4) conduct voltage drop calculations;
(5) determine the accuracy of overcurrent device labeling;
(6) remove covers where hazardous as judged by the inspector;
(7) verify the effectiveness of overcurrent devices; or
(8) operate overcurrent devices.
(c) Branch circuits, connected devices, and fixtures. The inspector shall:
(1) report the type of branch circuit conductors;
(2) manually test the accessible smoke alarms by use of the manufacturer's approved test or by the use of canned smoke; and
(3) report as Deficient:
(A) the lack of ground-fault circuit interrupter protection in all:
(i) bathroom receptacles;
(ii) garage receptacles;
(iii) outdoor receptacles;
(iv) crawl space receptacles;
(v) unfinished basement receptacles;
(vi) kitchen countertop receptacles; and
(vii) laundry, utility, and wet bar sink receptacles located within 6 feet of the outside edge of a laundry, utility, or wet bar sink; and
(B) the failure of operation of ground-fault circuit interrupter protection devices;
(C) receptacles that:
(i) are damaged;
(ii) are inoperative;
(iii) have incorrect polarity;
(iv) are not grounded, if applicable;
(v) display evidence of arcing or excessive heat;
(vi) are not securely mounted; or
(vii) have missing or damaged covers;
(D) switches that:
(i) are damaged;
(ii) are inoperative;
(iii) display evidence of arcing or excessive heat;
(iv) are not securely mounted; or
(v) have missing or damaged covers;
(E) deficiencies in or absences of conduit, where applicable;
(F) appliances and metal pipes that are not bonded or grounded;
(G) deficiencies in wiring, wiring terminations, junctions, junction boxes, devices, and fixtures, including improper location;
(H) the lack of equipment disconnects;
(I) the absence of appropriate connections, such as copper/aluminum approved devices, if branch circuit aluminum conductors are discovered in the main or sub-panel based on a random sampling of accessible receptacles and switches;
(J) improper use of extension cords;
(K) deficiencies in smoke alarms that are not connected to a central alarm system; and
(L) the lack of smoke alarms:
(i) in each sleeping room;
(ii) outside each separate sleeping area in the immediate vicinity of the sleeping rooms; and
(iii) on each additional story of the dwelling, including basements but excluding crawl spaces and uninhabitable attics (in dwellings with split levels and without an intervening door between the levels, a smoke alarm installed on the upper level and the adjacent lower level shall suffice provided that the lower level is less than one full story below the upper level).
(d) Specific limitations for branch circuits, connected devices, and fixtures. The inspector is not required to:
(1) inspect low voltage wiring;
(2) disassemble mechanical appliances;
(3) verify the effectiveness of smoke alarms;
(4) verify interconnectivity of smoke alarms
(5) activate smoke alarms that are being actively monitored or require the use of codes; or
(6) verify that smoke alarms are suitable for the hearing-impaired.
§535.231.Standards of Practice: Minimum Inspection Requirements for Plumbing Systems.
(a) Plumbing systems. The inspector shall:
(1) report:
(A) static water pressure;
(B) location of water meter; and
(C) location of main water supply valve; and
(2) report as Deficient:
(A) the presence of active leaks;
(B) the lack of fixture shut-off valves;
(C) the lack of dielectric unions, when applicable;
(D) the lack of back-flow devices, anti-siphon devices, or air gaps at the flow end of fixtures;
(E) water pressure below 40 psi or above 80 psi static;
(F) the lack of a pressure reducing valve when the water pressure exceeds 80 PSI;
(G) the lack of an expansion tank at the water heater(s) when a pressure reducing valve is in place at the water supply line/system; and
(H) deficiencies in:
(i) water supply pipes and waste pipes;
(ii) the installation and termination of the vent system;
(iii) the operation of fixtures and faucets not connected to an appliance;
(iv) water supply, as determined by viewing functional flow in two fixtures operated simultaneously;
(v) functional drainage at fixtures;
(vi) orientation of hot and cold faucets;
(vii) installed mechanical drain stops;
(viii) installation, condition, and operation of commodes;
(ix) fixtures, showers, tubs, and enclosures; and
(x) the condition of the gas distribution system.
(b) Specific limitations for plumbing systems. The inspector is not required to:
(1) operate any main, branch, or shut-off valves;
(2) operate or inspect sump pumps or waste ejector pumps;
(3) inspect:
(A) any system that has been winterized, shut down or otherwise secured;
(B) circulating pumps, free-standing appliances, solar water heating systems, water-conditioning equipment, filter systems, water mains, private water supply systems, water wells, pressure tanks, sprinkler systems, swimming pools, or fire sprinkler systems;
(C) the inaccessible gas supply system for leaks;
(D) for sewer clean-outs; or
(E) for the presence or operation of private sewage disposal systems;
(4) determine:
(A) quality, potability, or volume of the water supply; or
(B) effectiveness of backflow or anti-siphon devices; or
(5) verify the functionality of clothes washing drains or floor drains.
(c) Water heaters. The inspector shall:
(1) report the energy source;
(2) report the capacity of the unit(s);
(3) report as Deficient:
(A) inoperative unit(s);
(B) leaking or corroded fittings or tank(s);
(C) broken or missing parts or controls;
(D) the lack of a cold water shut-off valve;
(E) if applicable, the lack of a pan and drain system and the improper termination of the pan drain line;
(F) an unsafe location;
(G) burners, burner ignition devices or heating elements, switches, or thermostats that are not a minimum of 18 inches above the lowest garage floor elevation, unless the unit is listed for garage floor installation;
(H) inappropriate location;
(I) inadequate access and clearances;
(J) the lack of protection from physical damage;
(K) a temperature and pressure relief valve that:
(i) does not operate manually;
(ii) leaks;
(iii) is damaged;
(iv) cannot be tested due to obstructions;
(v) is corroded; or
(vi) is improperly located; and
(L) temperature and pressure relief valve discharge piping that:
(i) lacks gravity drainage;
(ii) is improperly sized;
(iii) has inadequate material; or
(iv) lacks proper termination;
(4) in electric units, report as Deficient deficiencies in:
(A) operation of heating elements; and
(B) condition of conductors; and
(5) in gas units, report as Deficient:
(A) gas leaks;
(B) lack of burner shield(s);
(C) flame impingement, uplifting flame, improper flame color, or excessive scale build-up;
(D) the lack of a gas shut-off valve; and
(E) deficiencies in:
(i) combustion and dilution air;
(ii) gas shut-off valve(s) and location(s);
(iii) gas connector materials and connections; and
(iv) vent pipe, draft hood, draft, proximity to combustibles, and vent termination point and clearances.
(d) Specific limitations for water heaters. The inspector is not required to:
(1) verify the effectiveness of the temperature and pressure relief valve, discharge piping, or pan drain pipes;
(2) operate the temperature and pressure relief valve if the operation of the valve may, in the inspector's reasonable judgment, cause damage to persons or property; or
(3) determine the efficiency or adequacy of the unit.
(e) Hydro-massage therapy equipment. The inspector shall report as Deficient:
(1) inoperative unit(s) and controls;
(2) the presence of active leaks;
(3) inaccessible pump(s) or motor(s);
(4) the lack or failure of required ground-fault circuit interrupter protection; and
(5) deficiencies in the ports, valves, grates, and covers.
(f) Specific limitation for hydro-massage therapy equipment. The inspector is not required to determine the adequacy of self-draining features of circulation systems.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on November 3, 2008.
TRD-200805777
Devon V. Bijansky
Assistant General Counsel
Texas Real Estate Commission
Effective date: February 1, 2009
Proposal publication date: September 5, 2008
For further information, please call: (512) 465-3900
22 TAC §§537.21 - 537.23, 537.26, 537.27, 537.33, 537.35, 537.40, 537.46, 537.48
The Texas Real Estate Commission (TREC) adopts amendments to §§537.21 - 537.23, 537.26, 537.27, 537.33, 537.35, 537.40, 537.46, and 537.48 to correct the agency web address from www.state.tx.us to www.trec.state.tx.us. The amendments are adopted without changes to the proposed text as published in the September 5, 2008, issue of the Texas Register (33 TexReg 7416) and will not be republished.
Elsewhere in this issue of the Texas Register, the Texas Real Estate Commission contemporaneously withdraws and re-proposes new §537.51, concerning Standard Contract Form TREC No. 44-0 regarding an addendum for reservation of oil, gas, and other minerals. The new rule was previously published in the September 5, 2008, issue of the Texas Register. The commission is re-proposing the form based on a number of comments that were received and considered during the notice and comment period regarding the withdrawn form.
No comments were received on the amendments as proposed.
The reasoned justification for the amendments to the rules is to maintain consistency by correcting typographical errors regarding references to the commission's website in its rules.
The amendments are adopted 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 adoption is Texas Occupations Code, Chapter 1101. No other statute, code or article is affected by the adopted amendments.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on October 28, 2008.
TRD-200805697
Loretta R. DeHay
Assistant Administrator and General Counsel
Texas Real Estate Commission
Effective date: November 17, 2008
Proposal publication date: September 5, 2008
For further information, please call: (512) 465-3900
CHAPTER 661. GENERAL RULES OF PROCEDURES AND PRACTICES
SUBCHAPTER D. APPLICATIONS, EXAMINATIONS, AND LICENSING
The Texas Board of Professional Land Surveying (TBPLS) adopts an amendment to §661.55, concerning Surveying Firms Registration. The amendment is adopted without changes to the proposed text as published in the September 5, 2008, issue of the Texas Register (33 TexReg 7418) and will not be republished.
The amendment will define "full-time employee" as used in the Professional Land Surveying Practices Act and other rules.
No comments were received regarding adoption of this amendment.
The amendment is adopted pursuant to §1071.151, Title 6, Occupations Code, Subtitle C, which authorizes the Board to adopt and enforce reasonable and necessary rules to perform its duties.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on October 28, 2008.
TRD-200805684
Sandy Smith
Executive Director
Texas Board of Professional Land Surveying
Effective date: November 17, 2008
Proposal publication date: September 5, 2008
For further information, please call: (512) 239-5263
SUBCHAPTER A. GENERAL PRACTICE STANDARDS
The Texas Board of Professional Land Surveying (TBPLS) adopts an amendment to §663.10, concerning disciplinary rules. The amendment is adopted without changes to the proposed text as published in the September 5, 2008, issue of the Texas Register (33 TexReg 7418) and will not be republished.
The amendment will clarify that a land surveyor in violation of this rule may only be guilty of one of the behaviors noted.
No comments were received regarding adoption of the amendment.
The amendment is adopted pursuant to §1071.151, Title 6, Occupations Code, Subtitle C, which authorizes the Board to adopt and enforce reasonable and necessary rules to perform its duties.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on October 28, 2008.
TRD-200805685
Sandy Smith
Executive Director
Texas Board of Professional Land Surveying
Effective date: November 17, 2008
Proposal publication date: September 5, 2008
For further information, please call: (512) 239-5263
The Texas Board of Professional Land Surveying (TBPLS) adopts an amendment to §663.17, concerning Monumentation. The amendment is adopted without changes to the proposed text as published in the September 5, 2008, issue of the Texas Register (33 TexReg 7419) and will not be republished.
The amendment will remove language that is redundant, all monumentation set must comply with subsection (b) of this section.
No comments were received regarding adoption of the amendment.
The amendment is adopted pursuant to §1071.151, Title 6, Occupations Code, Subtitle C, which authorizes the Board to adopt and enforce reasonable and necessary rules to perform its duties.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on October 28, 2008.
TRD-200805686
Sandy Smith
Executive Director
Texas Board of Professional Land Surveying
Effective date: November 17, 2008
Proposal publication date: September 5, 2008
For further information, please call: (512) 239-5263