PART 1. FINANCE COMMISSION OF TEXAS
CHAPTER 9. RULES OF PROCEDURE FOR CONTESTED CASE HEARINGS, APPEALS, AND RULEMAKINGS
SUBCHAPTER B. CONTESTED CASE HEARINGS
The Finance Commission of Texas (commission) adopts amendments to 7 TAC §9.28, concerning Prefiled Testimony. The amendments are adopted with changes to the proposal published in the August 22, 2008, issue of the Texas Register (33 TexReg 6657).
The purpose of the adopted amendments is to allow for more flexibility in the admission of prefiled written testimony of an investigator who is unavailable to the agency as a witness. The amendments preserve the fundamental right to cross-examination in a due process hearing while allowing an exception for the admission of written agency investigation reports meeting the requirements of Rule 803, Texas Rules of Evidence when the investigator is unavailable to testify.
Since the proposal, minor grammatical and clarifying changes have been made to the amendments to §9.28. First, after the proposed deletion of "Sua sponte," the words "or on" are also being deleted, with the deletions being replaced by the words "or the." The amended introductory phrases of the first sentence now read as follows for this adoption: "On the judge's own motion, or the motion of any party, . . . ." The agency believes that these revisions provide the best grammatical structure. Second, in the proposed new language at the end of §9.28, the phrases "not available to the agency" and "not available" have both been replaced with the phrase "unavailable to the agency as a witness." Upon further review, the term "unavailable" is more streamlined and the parallel phrasing in both occurrences provides more clarity and consistency to the rule. Additionally, a clarifying reference to evidentiary Rule 804(a) has been added with the new last sentence of §9.28: "For purposes of this section 'unavailability as a witness' has the same meaning as in Rule 804(a), Texas Rules of Evidence."
The commission received no written comments on the proposal.
The amendments are adopted pursuant to Government Code, §2001.004, which requires a state agency to adopt rules of practice stating the nature and requirements of all available formal and informal procedures. The amendments are also adopted under specific rulemaking authority contained in the substantive statutes administered by the finance agencies under the jurisdiction of the commission, including Finance Code, §§11.301, 11.302, 11.304, 11.306, 14.157, 31.003, 66.002, 96.002, 151.102, 154.051, 156.102, 181.003, 201.003, 342.551, 351.003 (Tax Refund Anticipation Loans, Acts 2007, 80th Legislature, Chapter 135), 351.007 (Property Tax Lenders, Acts 2007, 80th Legislature, Chapter 1220), 348.513, 371.006, 394.214, and 396.051, Health and Safety Code, §711.012(a) and §712.008, and Tax Code, §32.06.
The statutory provisions affected by the adopted amendments are contained in Finance Code, Chapters 11, 12, 13, 14, 31, 35, 61, 66, 91, 96, 121, 151, 154, 156, 181, 185, 201, 301, 341, 342, 348, 351 (Tax Refund Anticipation Loans, Acts 2007, 80th Legislature, Chapter 135), 351 (Property Tax Lenders, known as the "Property Tax Lender License Act," Acts 2007, 80th Legislature, Chapter 1220), 371, 394, 396, Health and Safety Code, Chapters 711 and 712, and Tax Code, §32.06 and §32.065.
§9.28.Prefiled Testimony.
On the judge's own motion, or the motion of any party, the administrative law judge may omit oral presentation of the direct testimony of any witness and may allow prefiled written testimony to be presented in its place. The written testimony carries the same force and effect as though stated orally by the witness; provided that the witness must be present at the hearing at which such testimony is offered and adopt such testimony under oath, and must be made available for cross-examination. Written reports of agency investigations on fact issues, if offered into evidence in a hearing in which the facts covered by the report are directly at issue, will be treated as prefiled testimony and the investigator must be made available for cross-examination unless the investigator is unavailable to the agency as a witness or unless the report comes into evidence without objection. If the investigator is unavailable to the agency as a witness, the report shall be admissible under Rule 803, Texas Rules of Evidence if it meets the requirements for admission into evidence under that rule. For purposes of this section "unavailability as a witness" has the same meaning as in Rule 804(a), Texas Rules of Evidence.
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 December 19, 2008.
TRD-200806643
Leslie L. Pettijohn
Executive Director
Finance Commission of Texas
Effective date: January 8, 2009
Proposal publication date: August 22, 2008
For further information, please call: (512) 936-7621
CHAPTER 113. REGISTRATION OF SECURITIES
The Texas State Securities Board adopts the repeal of §§113.14 - 113.25, concerning registration of securities, without changes to the proposed text as published in the October 24, 2008, issue of the Texas Register (33 TexReg 8704).
The repealed sections are being replaced with new §113.14. The new section adopts by reference the North American Securities Administrators Association (NASAA) Statements of Policy (SOPs) concerning corporate securities definitions; impoundment of proceeds; loans and other material affiliated transactions; options and warrants; preferred stock; promoter's equity investment; promotional shares; specificity in use of proceeds; underwriting expenses, underwriter's warrants, selling expenses, and selling security holders; unsound financial condition; unequal voting rights; and debt securities. The repealed sections were based on the NASAA SOPs referenced in new §113.14.
Issuers of securities will be able to more easily determine that the NASAA SOPs apply to their registrations in Texas.
No comments were received regarding adoption of the repeals.
The repeals are adopted under Texas Civil Statutes, Article 581-28-1. Section 28-1 provides the Board with the authority to adopt rules and regulations necessary to carry out and implement the provisions of the Texas Securities Act, including rules and regulations governing registration statements and applications; defining terms; classifying securities, persons, and matters within its jurisdiction; and prescribing different requirements for different classes.
The repeals affect Texas Civil Statutes, Article 581-7.
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 December 18, 2008.
TRD-200806592
Denise Voigt Crawford
Securities Commissioner
State Securities Board
Effective date: January 7, 2009
Proposal publication date: October 24, 2008
For further information, please call: (512) 305-8303
The Texas State Securities Board adopts the new §113.14, concerning statements of policy, without changes to the proposed text as published in the October 24, 2008, issue of the Texas Register (33 TexReg 8704).
The new section replaces current registration guidelines, which are being concurrently repealed, by adopting by reference the North American Securities Administrators Association (NASAA) Statements of Policy (SOPs) named in the new rule. The NASAA SOPs that are adopted by reference will be available electronically through the agency web site and on the NASAA web site. Additionally, print copies will be available from the agency on request.
Uniformity with other states participating in the NASAA Coordinated State Review programs (CR-Equity and CR-DPP) will be enhanced and issuers of securities will be able to more easily determine that the NASAA SOPs apply to their registrations in Texas.
No comments were received regarding adoption of the new rule.
The new rule is adopted under Texas Civil Statutes, Article 581-28-1. Section 28-1 provides the Board with the authority to adopt rules and regulations necessary to carry out and implement the provisions of the Texas Securities Act, including rules and regulations governing registration statements and applications; defining terms; classifying securities, persons, and matters within its jurisdiction; and prescribing different requirements for different classes.
The new rule affects Texas Civil Statutes, Article 581-7.
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 December 18, 2008.
TRD-200806591
Denise Voigt Crawford
Securities Commissioner
State Securities Board
Effective date: January 7, 2009
Proposal publication date: October 24, 2008
For further information, please call: (512) 305-8303
The Texas State Securities Board adopts the repeal of §§117.1 - 117.9, concerning administrative guidelines for registration of real estate programs, without changes to the proposed text as published in the October 24, 2008, issue of the Texas Register (33 TexReg 8705).
The repealed sections are being replaced with a new §113.14 that adopts by reference the North American Securities Administrators Association (NASAA) Statement of Policy (SOP) for Real Estate Programs on which the repealed Chapter 117 was based.
Issuers of securities will be able to more easily determine that the NASAA SOPs apply to their registrations in Texas.
No comments were received regarding adoption of the repeals.
The repeals are adopted under Texas Civil Statutes, Article 581-28-1. Section 28-1 provides the Board with the authority to adopt rules and regulations necessary to carry out and implement the provisions of the Texas Securities Act, including rules and regulations governing registration statements and applications; defining terms; classifying securities, persons, and matters within its jurisdiction; and prescribing different requirements for different classes.
The repeals affect Texas Civil Statutes, Article 581-7.
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 December 18, 2008.
TRD-200806593
Denise Voigt Crawford
Securities Commissioner
State Securities Board
Effective date: January 7, 2009
Proposal publication date: October 24, 2008
For further information, please call: (512) 305-8303
The Texas State Securities Board adopts the repeal of §§121.1 - 121.10, concerning administrative guidelines for registration of oil and gas programs, without changes to the proposed text as published in the October 24, 2008, issue of the Texas Register (33 TexReg 8706).
The repealed sections are being replaced with a new §113.14 that adopts by reference the North American Securities Administrators Association (NASAA) Statement of Policy (SOP) for Oil and Gas Programs on which the repealed Chapter 121 was based.
Issuers of securities will be able to more easily determine that the NASAA SOPs apply to their registrations in Texas.
No comments were received regarding adoption of the repeals.
The repeals are adopted under Texas Civil Statutes, Article 581-28-1. Section 28-1 provides the Board with the authority to adopt rules and regulations necessary to carry out and implement the provisions of the Texas Securities Act, including rules and regulations governing registration statements and applications; defining terms; classifying securities, persons, and matters within its jurisdiction; and prescribing different requirements for different classes.
The repeals affect Texas Civil Statutes, Article 581-7.
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 December 18, 2008.
TRD-200806594
Denise Voigt Crawford
Securities Commissioner
State Securities Board
Effective date: January 7, 2009
Proposal publication date: October 24, 2008
For further information, please call: (512) 305-8303
The Texas State Securities Board adopts the repeal of §§129.1 - 129.9, concerning administrative guidelines for registration of asset-backed securities, without changes to the proposed text as published in the October 24, 2008, issue of the Texas Register (33 TexReg 8707).
The repealed sections are being replaced with a new §113.14 that adopts by reference the North American Securities Administrators Association (NASAA) Statement of Policy (SOP) for Asset-backed Securities on which the repealed Chapter 129 was based.
Issuers of securities will be able to more easily determine that the NASAA SOPs apply to their registrations in Texas.
No comments were received regarding adoption of the repeals.
The repeals are adopted under Texas Civil Statutes, Article 581-28-1. Section 28-1 provides the Board with the authority to adopt rules and regulations necessary to carry out and implement the provisions of the Texas Securities Act, including rules and regulations governing registration statements and applications; defining terms; classifying securities, persons, and matters within its jurisdiction; and prescribing different requirements for different classes.
The repeals affect Texas Civil Statutes, Article 581-7.
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 December 18, 2008.
TRD-200806596
Denise Voigt Crawford
Securities Commissioner
State Securities Board
Effective date: January 7, 2009
Proposal publication date: October 24, 2008
For further information, please call: (512) 305-8303
The Texas State Securities Board adopts the repeal of §133.31 and §133.32, forms concerning real estate guidelines cross reference sheet and REIT guidelines cross reference sheet, without changes to the proposed text as published in the October 24, 2008, issue of the Texas Register (33 TexReg 8707).
The repealed sections are being replaced with a new §113.14 that adopts by reference the North American Securities Administrators Association (NASAA) Statements of Policy (SOPs) for Real Estate Programs and Real Estate Investment Trusts. These NASAA SOPs include the forms on which the repealed forms were based.
Issuers of securities will be able to more easily determine that the NASAA SOPs apply to their registrations in Texas.
No comments were received regarding adoption of the repeals.
The repeals are adopted under Texas Civil Statutes, Article 581-28-1. Section 28-1 provides the Board with the authority to adopt rules and regulations necessary to carry out and implement the provisions of the Texas Securities Act, including rules and regulations governing registration statements and applications; defining terms; classifying securities, persons, and matters within its jurisdiction; and prescribing different requirements for different classes.
The repeals affect Texas Civil Statutes, Article 581-7.
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 December 18, 2008.
TRD-200806599
Denise Voigt Crawford
Securities Commissioner
State Securities Board
Effective date: January 7, 2009
Proposal publication date: October 24, 2008
For further information, please call: (512) 305-8303
The Texas State Securities Board adopts the repeal of §§141.1 - 141.8, concerning administrative guidelines for registration of equipment programs, without changes to the proposed text as published in the October 24, 2008, issue of the Texas Register (33 TexReg 8708).
The repealed sections are being replaced with a new §113.14 that adopts by reference the North American Securities Administrators Association (NASAA) Statement of Policy (SOP) for Equipment Programs on which the repealed Chapter 141 was based.
Issuers of securities will be able to more easily determine that the NASAA SOPs apply to their registrations in Texas.
No comments were received regarding adoption of the repeals.
The repeals are adopted under Texas Civil Statutes, Article 581-28-1. Section 28-1 provides the Board with the authority to adopt rules and regulations necessary to carry out and implement the provisions of the Texas Securities Act, including rules and regulations governing registration statements and applications; defining terms; classifying securities, persons, and matters within its jurisdiction; and prescribing different requirements for different classes.
The repeals affect Texas Civil Statutes, Article 581-7.
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 December 18, 2008.
TRD-200806597
Denise Voigt Crawford
Securities Commissioner
State Securities Board
Effective date: January 7, 2009
Proposal publication date: October 24, 2008
For further information, please call: (512) 305-8303
The Texas State Securities Board adopts the repeal of §§143.1 - 143.8, concerning administrative guidelines for registration of real estate investment trusts, without changes to the proposed text as published in the October 24, 2008, issue of the Texas Register (33 TexReg 8708).
The repealed sections are being replaced with a new §113.14 that adopts by reference the North American Securities Administrators Association (NASAA) Statement of Policy (SOP) for Real Estate Investment Trusts on which the repealed Chapter 143 was based.
Issuers of securities will be able to more easily determine that the NASAA SOPs apply to their registrations in Texas.
No comments were received regarding adoption of the repeals.
The repeals are adopted under Texas Civil Statutes, Article 581-28-1. Section 28-1 provides the Board with the authority to adopt rules and regulations necessary to carry out and implement the provisions of the Texas Securities Act, including rules and regulations governing registration statements and applications; defining terms; classifying securities, persons, and matters within its jurisdiction; and prescribing different requirements for different classes.
The repeals affect Texas Civil Statutes, Article 581-7.
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 December 18, 2008.
TRD-200806598
Denise Voigt Crawford
Securities Commissioner
State Securities Board
Effective date: January 7, 2009
Proposal publication date: October 24, 2008
For further information, please call: (512) 305-8303