PART 1. TEXAS BOARD OF ARCHITECTURAL EXAMINERS
CHAPTER 1. ARCHITECTS
SUBCHAPTER A. SCOPE; DEFINITIONS
The Texas Board of Architectural Examiners proposes an amendment to §1.5, concerning Terms Defined Herein. The amendment is necessary to define the term "rendering" for purposes of the rules and regulations relating to the practice of architecture. The proposed amendment would define "rendering" as a drawing, illustration or other depiction of the anticipated appearance of an architectural project after construction. The definition would distinguish renderings from construction documents and would explicitly specify that a rendering used for advertising or marketing purposes is not subject to a requirement that a "not for construction, permit or regulatory approval" disclaimer appear on the face of the document. Currently the disclaimer requirement applies to all documents issued for purposes other than construction, permit or regulatory approval.
Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, has determined that for the first five-year period the amended rule is in effect, the amendment will have no significant fiscal impact upon state government and no fiscal impact on local government.
Ms. Hendricks also has determined that for the first five-year period the amended rule is in effect the public will benefit from having a clear articulation of the meaning of the word "rendering" for regulatory purposes. Defining the term provides clarification regarding the application sealing and stamping rules to renderings. Defining the term "rendering" is not anticipated to have a fiscal impact upon persons required to comply with the rule. The amendment will have no fiscal impact on small or micro-business. Therefore no Economic Impact Statement and Regulatory Flexibility Analysis are required.
Comments may be submitted to Cathy L. Hendricks, ASID/IIDA, Executive Director, Texas Board of Architectural Examiners, P.O. Box 12337, Austin, TX 78711-2337.
The amendment is proposed pursuant to §1051.202, Texas Occupations Code, which provides the Texas Board of Architectural Examiners with authority to regulate the practice of architecture.
The proposed amendment does not affect any other statutes.
§1.5.Terms Defined Herein.
The following words, terms, and acronyms, when used in this
chapter [Chapter
], shall have the following meanings, unless
the context clearly indicates otherwise.
(1) The Act--The Architects' Registration Law.
(2) Actual Signature--A personal signature of the individual whose name is signed or an authorized copy of such signature.
(3) Administrative Procedure Act (APA)--Texas Government Code §§2001.001 et seq.
(4) APA--Administrative Procedure Act.
(5) Applicant--An individual who has submitted an application for registration or reinstatement but has not yet completed the registration or reinstatement process.
(6) Architect--An individual who holds a valid Texas architectural registration certificate granted by the Board.
(7) Architect Registration Examination (ARE)--The standardized test that a Candidate must pass in order to obtain a valid Texas architectural registration certificate.
(8) Architect Registration Examination Financial Assistance Fund (AREFAF)--A program administered by the Board which provides monetary awards to Candidates and newly registered Architects who meet the program's criteria.
(9) Architects' Registration Law--Article 249a, Vernon's Texas Civil Statutes, and Chapter 1051, Texas Occupations Code.
(10) Architectural Barriers Act--Article 9102, Vernon's Texas Civil Statutes and Texas Government Code, Chapter 469.
(11) Architectural Intern--An individual enrolled in the Intern Development Program (IDP).
(12) ARE--Architect Registration Examination.
(13) AREFAF--Architect Registration Examination Financial Assistance Fund.
(14) Authorship--The state of having personally created something.
(15) Barrier-Free Design--The design of a building or a facility or the design of an alteration of a building or a facility which complies with the Texas Accessibility Standards, the Americans with Disabilities Act, the Fair Housing Accessibility Guidelines, or similarly accepted standards for accessible design.
(16) Board--Texas Board of Architectural Examiners.
(17) Cancel, Cancellation, or Cancelled--The termination of a Texas architectural registration certificate by operation of law two years after it expires without renewal by the certificate-holder.
(18) Candidate--An Applicant approved by the Board to take the ARE.
(19) EPH--Continuing Education Program Hour(s).
(20) Chair--The member of the Board who serves as the Board's presiding officer.
(21) Construction Documents--Drawings; specifications; and addenda, change orders, construction change directives, and other Supplemental Documents prepared for the purpose(s) of Regulatory Approval, permitting, or construction.
(22) Consultant--An individual retained by an Architect who prepares or assists in the preparation of technical design documents issued by the Architect for use in connection with the Architect's Construction Documents.
(23) Contested Case--A proceeding, including a licensing proceeding, in which the legal rights, duties, or privileges of a party are to be determined by a state agency after an opportunity for adjudicative hearing.
(24) Continuing Education Program Hour (CEPH)--At least fifty (50) minutes of time spent in an activity meeting the Board's continuing education requirements.
(25) Council Certification--Certification granted by NCARB to architects who have satisfied certain standards related to architectural education, training, and examination.
(26) Delinquent--A registration status signifying that an Architect:
(A) has failed to remit the applicable renewal fee to the Board; and
(B) is no longer authorized to Practice Architecture in Texas or use any of the terms restricted by the Architects' Registration Law.
(27) Direct Supervision--The amount of oversight by an individual overseeing the work of another whereby the supervisor and the individual being supervised work in close proximity to one another and the supervisor has both control over and detailed professional knowledge of the work prepared under his or her supervision.
(28) E-mail Directory--A listing of e-mail addresses:
(A) used to advertise architectural services; and
(B) posted on the Internet under circumstances where the Architects included in the list have control over the information included in the list.
(29) Emeritus Architect (or Architect Emeritus)--An honorary title that may be used by an Architect who has retired from the Practice of Architecture in Texas pursuant to Texas Occupations Code, §1051.357.
(30) Energy-Efficient Design--The design of a project and the specification of materials to minimize the consumption of energy in the use of the project. The term includes energy efficiency strategies by design as well as the incorporation of alternative energy systems.
(31) Feasibility Study--A report of a detailed investigation and analysis conducted to determine the advisability of a proposed architectural project from a technical architectural standpoint.
(32) Good Standing--
(A) a registration status signifying that an Architect is not delinquent in the payment of any fees owed to the Board; or
(B) an application status signifying that an Applicant or Candidate is not delinquent in the payment of any fees owed to the Board, is not the subject of a pending TBAE enforcement proceeding, and has not been the subject of formal disciplinary action by an architectural registration board that would provide a ground for the denial of the application for architectural registration in Texas.
(33) Governmental Entity--A Texas state agency or department; a district, authority, county, municipality, or other political subdivision of Texas; or a publicly owned Texas utility.
(34) Governmental Jurisdiction--A governmental authority such as a state, territory, or country beyond the boundaries of Texas.
(35) IDP--The Intern Development Program as administered by NCARB.
(36) Inactive--A registration status signifying that an Architect may not Practice Architecture in the State of Texas.
(37) Intern Development Program (IDP)--A comprehensive internship program established, interpreted, and enforced by NCARB.
(38) Intern Development Training Requirement--Architectural experience necessary for an Applicant to obtain architectural registration by examination in Texas.
(39) Institutional Residential Facility--A building intended for occupancy on a 24-hour basis by persons who are receiving custodial care from the proprietors or operators of the building. Hospitals, dormitories, nursing homes and other assisted living facilities, and correctional facilities are examples of buildings that may be Institutional Residential Facilities.
(40) Licensed--Registered.
(41) Member Board--An architectural registration board that is part of the nonprofit federation of architectural registration boards known as NCARB.
(42) NAAB--National Architectural Accrediting Board.
(43) National Architectural Accrediting Board (NAAB)--An agency that accredits architectural degree programs in the United States.
(44) National Council of Architectural Registration Boards (NCARB)--A nonprofit federation of architectural registration boards from fifty-five (55) states and territories of the United States.
(45) NCARB--National Council of Architectural Registration Boards.
(46) Nonregistrant--An individual who is not an Architect.
(47) Practice Architecture--Perform or do or offer or attempt to do or perform any service, work, act, or thing within the scope of the Practice of Architecture.
(48) Practicing Architecture--Performing or doing or offering or attempting to do or perform any service, work, act, or thing within the scope of the Practice of Architecture.
(49) Practice of Architecture--A service or creative work applying the art and science of developing design concepts, planning for functional relationships and intended uses, and establishing the form, appearance, aesthetics, and construction details for the construction, enlargement, or alteration of a building or environs intended for human use or occupancy, the proper application of which requires education, training, and experience in those matters.
(A) The term includes:
(i) establishing and documenting the form, aesthetics, materials, and construction technology for a building, group of buildings, or environs intended to be constructed or altered;
(ii) preparing or supervising and controlling the preparation of the architectural plans and specifications that include all integrated building systems and construction details, unless otherwise permitted under Texas Occupations Code, §1051.606(a)(4); and
(iii) observing the construction, modification, or alteration of work to evaluate conformance with architectural plans and specifications described in clause (ii) of this subparagraph for any building, group of buildings, or environs requiring an architect.
(B) The term "practice of architecture" also includes the following activities which, pursuant to Texas Occupations Code §1051.701(a), may be performed by a person who is not registered as an Architect:
(i) programming for construction projects, including identification of economic, legal, and natural constraints and determination of the scope and spatial relationship of functional elements;
(ii) recommending and overseeing appropriate construction project delivery systems;
(iii) consulting, investigating, and analyzing the design, form, aesthetics, materials, and construction technology used for the construction, enlargement, or alteration of a building or environs and providing expert opinion and testimony as necessary;
(iv) research to expand the knowledge base of the profession of architecture, including publishing or presenting findings in professional forums; and
(v) teaching, administering, and developing pedagogical theory in academic settings offering architectural education.
(50) Principal--An architect who is responsible, either alone or with other architects, for an organization's Practice of Architecture.
(51) Prototypical--From or of an architectural design intentionally created not only to establish the architectural parameters of a building or facility to be constructed but also to serve as a functional model on which future variations of the basic architectural design would be based for use in additional locations.
(52) Public Entity--A state, a city, a county, a city and county, a district, a department or agency of state or local government which has official or quasi-official status, an agency established by state or local government though not a department thereof but subject to some governmental control, or any other political subdivision or public corporation.
(53) Registered--Licensed.
(54) Registrant--Architect.
(55) Regulatory Approval--The approval of Construction Documents by the applicable Governmental Entity after a review of the architectural content of the Construction Documents as a prerequisite to construction or occupation of a building or a facility.
(56) Reinstatement--The procedure through which a Surrendered or revoked Texas architectural registration certificate is restored.
(57) Rendering--A drawing, illustration, or other artwork created for the purpose of demonstrating the anticipated appearance of a proposed design after construction which allows a client to make design-related decisions throughout the course of the project. A Rendering is distinct from a Construction Document in that it is not intended for Regulatory Approval, permitting or construction and generally lacks the detail to be used for those purposes. An Architect is not required to affix his or her name, date of issuance, or statement of intent to a Rendering issued solely for advertising, marketing, or presentation to a client for purposes other than the client's use in making design-related decisions.
(58) [(57)] Renewal--The procedure
through which an Architect pays a periodic fee so that the Architect's
registration certificate will continue to be effective.
(59) [(58)] Responsible Charge--That
degree of control over and detailed knowledge of the content of technical
submissions during their preparation as is ordinarily exercised by
registered architects applying the applicable architectural standard
of care.
(60) [(59)] Revocation or Revoked--The
termination of an architectural registration certificate by the Board.
(61) [(60)] Rules and Regulations
of the Board--22 Texas Administrative Code §§1.1 et seq.
(62) [(61)] Rules of Procedure
of SOAH--1 Texas Administrative Code §§155.1 et seq.
(63) [(62)] Secretary-Treasurer--The
member of the Board responsible for signing the official copy of the
minutes of each Board meeting and maintaining the record of Board
members' attendance at Board meetings.
(64) [(63)] SOAH--State Office
of Administrative Hearings.
(65) [(64)] State Office of Administrative
Hearings (SOAH)--A Governmental Entity created to serve as an independent
forum for the conduct of adjudicative hearings involving the executive
branch of Texas government.
(66) [(65)] Supervision and Control--The
amount of oversight by an architect overseeing the work of another
whereby:
(A) the architect and the individual performing the work can document frequent and detailed communication with one another and the architect has both control over and detailed professional knowledge of the work; or
(B) the architect is in Responsible Charge of the work and the individual performing the work is employed by the architect or by the architect's employer.
(67) [(66)] Supplemental Document--A
document that modifies or adds to the technical architectural content
of an existing Construction Document.
(68) [(67)] Surrender--The act
of relinquishing a Texas architectural registration certificate along
with all privileges associated with the certificate.
(69) [(68)] Sustainable Design--An
integrative approach to the process of design which seeks to avoid
depletion of energy, water, and raw material resources; prevent environmental
degradation caused by facility and infrastructure developments during
their implementation and over their life cycle; and create environments
that are livable and promote health, safety and well-being. Sustainability
is the concept of meeting present needs without compromising the ability
of future generations to meet their own needs.
(70) [(69)] TBAE--Texas Board
of Architectural Examiners.
(71) [(70)] TDLR--Texas Department
of Licensing and Regulation.
(72) [(71)] Texas Department
of Licensing and Regulation (TDLR)--A Texas state agency responsible
for the implementation and enforcement of the Texas Architectural
Barriers Act.
(73) [(72)] Texas Guaranteed
Student Loan Corporation (TGSLC)--A public, nonprofit corporation
that administers the Federal Family Education Loan Program.
(74) [(73)] TGSLC--Texas Guaranteed
Student Loan Corporation.
(75) [(74)] Vice-Chair--The member
of the Board who serves as the assistant presiding officer and, in
the absence of the Chair, serves as the Board's presiding officer.
If necessary, the Vice-Chair succeeds the Chair until a new Chair
is appointed.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 2, 2010.
TRD-201004192
Cathy L. Hendricks, RID, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: September 12, 2010
For further information, please call: (512) 305-9040
The Texas Board of Architectural Examiners proposes new §1.26, concerning Preliminary Evaluation of Criminal History. The new rule pertains to the criminal history of persons considering architectural registration. The rule creates a procedure for persons who have a criminal history to obtain from the board a preliminary evaluation letter assessing their chances of becoming registered as an architect in light of their criminal history. The rule specifies the information a person must file in order to request an evaluation letter. The rule requires the executive director to issue a letter within 90 days which states whether the person would likely be ineligible for registration due to the requestor's criminal conduct. The rule includes procedures for reconsideration of a determination of ineligibility and a procedure for appealing such a determination to the State Office of Administrative Hearings. A person who has been determined to be ineligible for registration may not request another preliminary letter until one year after the issuance of the initial letter. If, after consideration of a proposal for decision by the State Office of Administrative Hearings, the board issues a final order finding the requestor is ineligible, the requestor may not seek a subsequent preliminary evaluation letter for three years but may ask for reconsideration under certain circumstances. The rule implements House Bill 963 which was passed by the 81st Legislature.
Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, has determined that for the first five-year period the new rule is in effect, the new rule will have no significant fiscal impact upon state government and no fiscal impact on local government.
Ms. Hendricks also has determined that for the first five-year period the new rule is in effect the public benefits expected as a result of enforcing the new rule are as follows: there will be guidance provided on the process to follow to determine if a criminal history will serve as a bar to registration. The public will benefit from a uniform, articulated objective process for discovering if it is worthwhile to consider seeking registration in light of a criminal history. No one is required to seek a preliminary evaluation letter. Therefore, there will be no fiscal impact upon persons required to comply with the section in that no one is required to comply with it. The new rule will have no fiscal impact on small or micro-business. Therefore no Economic Impact Statement and Regulatory Flexibility Analysis are required.
Comments may be submitted to Cathy L. Hendricks, ASID/IIDA, Executive Director, Texas Board of Architectural Examiners, P.O. Box 12337, Austin, TX 78711-2337.
The new rule is proposed pursuant to §1051.202, Texas Occupations Code, which provides the Texas Board of Architectural Examiners with authority to promulgate rules to implement Chapter 1051, Texas Occupations Code. The rule is also proposed pursuant to Chapter 53, Texas Occupations Code, which specifies the procedures for consideration of criminal conduct in licensing or maintaining the licensure of professionals.
The proposed new rule does not affect any other statutes.
§1.26.Preliminary Evaluation of Criminal History.
(a) An Applicant, Candidate or a person enrolled or planning to enroll in an accredited architectural educational program may make a written request to the Board's executive director for a preliminary criminal history evaluation letter which states the person's eligibility for registration under §1.149 of this chapter (relating to Criminal Convictions).
(b) A person who requests a criminal history evaluation shall provide the following information:
(1) a statement describing the offenses for which the requestor has a criminal history;
(2) any court documents including, but not limited to, indictments, orders of deferred adjudication, judgments, probation records, and evidence of completion of probation, if applicable;
(3) the names and contact information of the parole or probation department, if any, to which the requestor reports; and
(4) the required fee for determining eligibility.
(c) Within 90 days after receiving a request which complies with subsection (b) of this section, the executive director shall issue a criminal history evaluation letter which states:
(1) a determination that a ground for ineligibility based upon criminal conduct does not exist; or
(2) a determination that the requestor is ineligible due to criminal conduct and a specific explanation of the basis for that determination, including the relationship between the conduct in question and the Practice of Architecture.
(d) For purposes of determining eligibility for registration, a record of conviction is conclusive evidence of guilt. The Board may not consider a conviction in determining eligibility for registration upon receipt of proof that the conviction or an order of probation with or without adjudication of guilt has been reversed or set aside.
(e) In the absence of evidence that was not disclosed by the requestor or reasonably available when a request for a criminal history evaluation was under consideration, the executive director's criminal history evaluation letter is a final determination regarding the requestor's eligibility for registration. If found to be ineligible for registration, a requestor may not apply for registration until one year after the date the letter is issued. A requestor who is determined to be ineligible may:
(1) submit a request for reconsideration of the determination of ineligibility based upon evidence that was not disclosed or reasonably available to the agency at the time the determination was made;
(2) submit a new request for an evaluation no sooner than one year after the date upon which the criminal history evaluation letter was issued; or
(3) request a hearing on the determination made in the executive director's criminal history evaluation letter. A hearing conducted pursuant to this section is subject to the Administrative Procedure Act, Chapter 2001, Government Code.
(f) The Board shall issue a final order on the determination made in the criminal history evaluation after consideration of a proposal for decision issued by an administrative law judge at the State Office of Administrative Hearings. The Board's final order must specify findings of fact and conclusions of law, stated separately, regarding the person's eligibility for registration in light of his or her criminal history record.
(g) A person who is found to be ineligible by a final order of the Board may not file another request for a criminal history evaluation or apply for registration until three (3) years after the date of the Board's final order. However, a person may request reconsideration of the final order based upon evidence that was not disclosed or reasonably available to the Board at the time the final order was issued.
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 August 2, 2010.
TRD-201004193
Cathy L. Hendricks, RID, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: September 12, 2010
For further information, please call: (512) 305-9040
The Texas Board of Architectural Examiners proposes new §1.27, concerning Provisional Licensure. The new rule pertains to the provisional licensure of persons who have a criminal history but who are otherwise eligible for architectural registration. The rule creates a procedure for persons who have a criminal history to obtain a provisional license if they have not committed certain serious or violent offenses, an offense relating to the practice of architecture, or any other offense within the past 5 years. The provisional license would expire after 6 months. The proposed rule specifies that a provisional registration may be Revoked upon violation of laws enforced by the board or upon the commission of another criminal act. If a person successfully completes the provisional period, he or she would receive an unrestricted certificate of registration. If the provisional registration is Revoked, the person who held it may not seek registration for 3 years. The rule implements House Bill 963 which was passed by the 81st Legislature.
Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, has determined that for the first five-year period the new rule is in effect, the new rule will have no significant fiscal impact upon state government and no fiscal impact on local government.
Ms. Hendricks also has determined that for the first five-year period the new rule is in effect the public benefits expected as a result of enforcing the new rule will be the guidance provided on the process for determining if a criminal history will serve as a bar to registration. The public will benefit from a uniform, articulated objective process for discovering if it is worthwhile to consider seeking registration in light of a criminal history. No one is required to seek a preliminary evaluation letter. Therefore, there will be no fiscal impact upon persons required to comply with the section in that no one is required to comply with it. The new rule will have no fiscal impact on small or micro-business. Therefore no Economic Impact Statement and Regulatory Flexibility Analysis are required.
Comments may be submitted to Cathy L. Hendricks, ASID/IIDA, Executive Director, Texas Board of Architectural Examiners, P.O. Box 12337, Austin, TX 78711-2337.
The new rule is proposed pursuant to §1051.202, Texas Occupations Code, which provides the Texas Board of Architectural Examiners with authority to promulgate rules to implement Chapter 1051, Texas Occupations Code. The rule is also proposed pursuant to Chapter 53, Texas Occupations Code, which specifies the procedures for consideration of criminal conduct in licensing or maintaining the licensure of professionals.
The proposed new rule does not affect any other statutes.
§1.27.Provisional Licensure.
(a) The Board shall grant a Certificate of Registration or a provisional Certificate of Registration to a Candidate who has been convicted of an offense that:
(1) is not directly related to the Practice of Architecture as determined by the executive directory under §1.149 of this chapter (relating to Criminal Convictions);
(2) was committed earlier than five (5) years before the date the Candidate filed an application for registration;
(3) is not an offense listed in §3g, Article 42.12, Code of Criminal Procedure; and
(4) is not a sexually violent offense, as defined by Article 62.001, Code of Criminal Procedure.
(b) A provisional Certificate of Registration expires six (6) months after the date it is issued.
(c) A provisional Certificate of Registration may be Revoked for the following reasons:
(1) The provisional Registrant commits another offense during the 6-month provisional registration period;
(2) The provisional Registrant's community supervision, mandatory supervision, or parole is Revoked; or
(3) The provisional Registrant violates a statute or rule enforced by the Board.
(d) A provisional Registrant who is subject to community supervision, mandatory supervision, or parole shall provide the Board name and contact information of the probation or parole department to which the provisional Registrant reports. The Board shall provided notice to the department upon the issuance of the provisional Certificate of Registration, as well as any terms, conditions or limitations upon the provisional Registrant's practice.
(e) Upon successful completion of the provisional Registration period, the Board shall issue a Certificate of Registration to the provisional Registrant. If a provisional Registrant's provisional Certificate is Revoked, the provisional Registrant is disqualified from receiving a Certificate of Registration and may not apply for a Certificate of Registration for a period of three (3) years from the date of Revocation.
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 August 2, 2010.
TRD-201004194
Cathy L. Hendricks, RID, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: September 12, 2010
For further information, please call: (512) 305-9040
The Texas Board of Architectural Examiners proposes an amendment to §1.103, concerning Required Use of Seal and Retention of Sealed Documents. The amendment requires an architect to include his or her name, registration number and a disclaimer to renderings issued for a purpose other than regulatory approval, permitting or construction. The disclaimer must appear on the document in a conspicuous place and state that it is not intended for approval, permitting or construction.
Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, has determined that for the first five-year period the amended rule is in effect, the amendment will have no significant fiscal impact upon state government and no fiscal impact on local government.
Ms. Hendricks also has determined that for the first five-year period the amended rule is in effect the public will benefit from having a clear statement of the architect's intent appear on documents which have not been developed to the extent in which they have adequate detail and direction for governmental approval and construction. The rule would prevent misunderstandings and potential misuse of documents which have not been developed into complete construction documents. There will be no fiscal impact upon persons who are required to comply with the rule. The amendment will have no fiscal impact on small or micro-business. Therefore no Economic Impact Statement and Regulatory Flexibility Analysis are required.
Comments may be submitted to Cathy L. Hendricks, ASID/IIDA, Executive Director, Texas Board of Architectural Examiners, P.O. Box 12337, Austin, TX 78711-2337.
The amendment is proposed pursuant to §1051.202, Texas Occupations Code, which provides the Texas Board of Architectural Examiners with authority to promulgate rules to implement Chapter 1051, Texas Occupations Code.
The proposed amendment does not affect any other statutes.
§1.103.Required Use of Seal and Retention of Sealed Documents.
(a) Construction documents:
(1) On every Construction Document prepared by an Architect or under an Architect's Supervision and Control, the Architect shall affix or cause the affixation of:
(A) the Architect's seal;
(B) the Architect's signature (across the face of the seal's image or directly under or adjacent to the seal's image); and
(C) the date of signing (including the month, day, and year) before the Construction Document is issued by or under the authority of the Architect.
(2) The Architect's seal and signature and the date must be affixed in a manner that will be clearly visible and legible on each copy of a Construction Document issued by or under the authority of the Architect. The Architect's signature and the date may not conceal or obscure the name or registration number on the seal.
(3) Construction Documents requiring a seal, signature, and date include the following:
(A) each sheet of drawings or electronic equivalent of a sheet of drawings;
(B) each specification: if a specification is included in a bound grouping of specifications that includes a table of contents or index listing each individual specification, the seal must be placed in at least one conspicuous location on the bound document; any individual specification sheet or electronic equivalent of a specification sheet that is issued separately must be sealed individually;
(C) each sheet or electronic equivalent of a sheet that identifies the project and provides a list of sealed Construction Documents, such as a title sheet, table of contents, or index; and
(D) each architectural drawing and specification that is part of an addenda, change order, construction change directive, or other Supplemental Document.
(b) Documents issued for purposes other than regulatory approval, permitting, and construction:
(1) An architectural drawing, Rendering, or specification issued by or under the authority of an Architect for a purpose other than regulatory approval, permitting, or construction shall include:
(A) the Architect's name;
(B) the date the document is issued (including the month, day, and year); and
(C) the following statement placed in a conspicuous location on the document: "Not for regulatory approval, permitting, or construction."
(2) Each architectural drawing and specification included
in a Feasibility Study issued by or under the authority of an Architect
must be sealed, signed, and dated in the manner described in
subsection (a) of this section [Subsection 1.103 (a)] or labeled
with the Architect's name and the date and clearly marked to indicate
that it may not be used for regulatory approval, permitting, or construction
in the manner described in this subsection [Subsection
1.103(b)].
(c) For a minimum of ten (10) years from the date of signature on each Construction Document and Prototypical Construction Document sealed by or under the authority of an Architect, the sealing Architect shall be responsible for the maintenance of the sealed, signed, and dated original document or a copy of the document bearing the clearly visible and legible seal, signature, and date.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 2, 2010.
TRD-201004195
Cathy L. Hendricks, RID, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: September 12, 2010
For further information, please call: (512) 305-9040
The Texas Board of Architectural Examiners proposes an amendment to §1.149, concerning Criminal Convictions. The amendment pertains to the authority of the board to action against the continued or prospective registration of a person upon his or her criminal conviction. The amendment clarifies that the board may act against a registration for the commission of a crime which directly relates to the practice of architecture, a crime unrelated to the practice of architecture but which was committed within the past 5 years, or certain specified serious crimes involving violence, sexual offenses and minors. The rule is also amended to include provisional licensing as one of the actions the board may take against one who is convicted of these offenses. The amendment also makes technical amendments to create cross-references to the definitions of defined terms. The rule implements House Bill 963 which was passed by the 81st Legislature.
Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, has determined that for the first five-year period the amended rule is in effect, the amendment will have no significant fiscal impact upon state government and no fiscal impact on local government.
Ms. Hendricks also has determined that for the first five-year period the amended rule is in effect the public will benefit from having a rule which is in compliance with current law and which specifies a procedure for evaluating criminal convictions and determining the regulatory action to be taken upon conviction. There will likely be a fiscal impact upon persons required to comply with the section in that action may be taken against the license of one who has been convicted which may restrict or terminate the ability to practice as an architect. However, the restrictions imposed by the rule are mandated by the statute and there is no way for the rule to be crafted to minimize the fiscal impact upon those who have a criminal conviction without conflicting with the statute. The amendment is applicable to only individuals and will have no fiscal impact on small or micro-business. Therefore no Economic Impact Statement and Regulatory Flexibility Analysis are required.
Comments may be submitted to Cathy L. Hendricks, ASID/IIDA, Executive Director, Texas Board of Architectural Examiners, P.O. Box 12337, Austin, TX 78711-2337.
The amendment is proposed pursuant to §1051.202, Texas Occupations Code, which provides the Texas Board of Architectural Examiners with authority to promulgate rules to implement Chapter 1051, Texas Occupations Code. The rule is also proposed pursuant to §1051.207, Texas Occupations Code, which directs the board to adopt rules to implement Chapter 53, Texas Occupations Code, which specifies the procedures for consideration of criminal conduct in licensing or maintaining the licensure of professionals.
The proposed amendment does not affect any other statutes.
§1.149.Criminal Convictions.
(a) Pursuant to Chapter 53, Texas Occupations Code
and §2005.052, Texas Government Code, the Board may suspend or
revoke an existing certificate of registration, disqualify a person
from receiving a certificate of registration, issue a provisional
license subject to the terms and limitations of §1.27 of this
chapter (relating to Provisional Licensure), or deny to a person
the opportunity to be examined for a certificate of registration because
of the person's conviction for committing an offense [of
a crime] if:
(1) the offense [crime]
directly relates to the duties and responsibilities of
an Architect; [a registered architect.]
(2) the offense does not directly relate to the duties and responsibilities of an Architect and was committed within five (5) years before the date the person applied for registration as an Architect;
(3) the offense is listed in §3g, Article 42.12, Texas Code of Criminal Procedure; or
(4) the offense is a sexually violent offense, as defined by Article 62.001, Texas Code of Criminal Procedure.
(b) The following procedures will apply in the consideration of an application for registration as an Architect or in the consideration of a Registrant's criminal history:
(1) Each Applicant will be required to provide information regarding the Applicant's criminal history as part of the application process. Each Registrant will be required to report any criminal conviction to the Board within thirty (30) days of the date the conviction is entered by the court and to verify the status of the Registrant's criminal history on each registration renewal form. An Applicant or Registrant shall not be required to report a conviction for a minor traffic offense.
(2) An Applicant or Registrant who has been convicted
for committing any offense [of any crime
] will be required to provide a summary of each conviction in sufficient detail
to allow the executive director to determine whether it appears to
directly relate to the duties and responsibilities of
an Architect [a registered architect].
(3) If the executive director determines the conviction
might be directly related to the duties and responsibilities of an
Architect [a registered architect], the Board's staff
will obtain sufficient details regarding the conviction to allow the
Board to determine the effect of the conviction on the Applicant's
eligibility for registration or on the Registrant's fitness for continued
registration.
(c) [(b)] In determining whether
a criminal conviction is directly related to the duties and responsibilities
of an Architect [a registered architect], the
executive director and the Board will consider the following:
(1) the nature and seriousness of the crime;
(2) the relationship of the crime to the purposes for requiring a license to practice architecture;
(3) the extent to which architectural registration might offer an opportunity to engage in further criminal activity of the same type as that in which the Applicant or Registrant 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 an Architect [a registered architect].
(d) [(c)] In addition to the
factors that may be considered under subsection
(c) [(b)]
of this section, the executive director and the Board shall consider
the following:
(1) the extent and nature of the Applicant's or Registrant's past criminal activity;
(2) the age of the Applicant or Registrant at the time the crime was committed and the amount of time that has elapsed since the Applicant's or Registrant's last criminal activity;
(3) the conduct and work activity of the Applicant or Registrant prior to and following the criminal activity;
(4) evidence of the Applicant's or Registrant's rehabilitation or rehabilitative effort;
(5) other evidence of the Applicant's or Registrant's present fitness to practice as an Architect, including letters of recommendation from law enforcement officials involved in the prosecution or incarceration of the Applicant or Registrant or other persons in contact with the Applicant or Registrant; and
(6) proof that the Applicant or Registrant has maintained steady employment and has supported his/her dependents and otherwise maintained a record of good conduct and has paid all outstanding court costs, supervision fees, fines, and restitution as may have been ordered.
(e) [(d)] Crimes directly related
to the duties and responsibilities of a
Registered Architect [registered architect
] include any crime that reflects a lack
of fitness for professional licensure or a disregard of the standards
commonly upheld for the professional
Practice of Architecture [practice of architecture
], such as the following:
(1) criminal negligence;
(2) soliciting, offering, giving, or receiving any form of bribe;
(3) the unauthorized use of property, funds, or proprietary information belonging to a client or employer;
(4) acts relating to the malicious acquisition, use, or dissemination of confidential information related to architecture; and
(5) any intentional violation as an individual or as a consenting party of any provision of the Act.
(f) [(e)] The Board shall revoke
the certificate of registration of any Registrant who is convicted
of any felony if the felony conviction results in incarceration. The
Board also shall revoke the certificate of registration of any Registrant
whose felony probation, parole, or mandatory supervision is revoked.
(g) [(f)] If an Applicant is
incarcerated as the result of a felony conviction, the Board may not
approve the Applicant for registration during the period of incarceration.
If an Applicant's felony probation, parole, or mandatory supervision
is revoked, the Board may not approve the Applicant for registration
until the Applicant successfully completes the sentence imposed as
a result of the revocation.
(h) [(g)] If the Board takes
action against any Applicant or Registrant pursuant to this section,
the Board shall provide the Applicant or Registrant with the following
information in writing:
(1) the reason for rejecting the application or taking action against the Registrant's certificate of registration;
(2) notice that upon exhaustion of the administrative remedies provided by the Administrative Procedure Act, Chapter 2001, Government Code, an action may be filed in a district court of Travis County for review of the evidence presented to the Board and its decision. The person must begin the judicial review by filing a petition with the court within 30 days after the Board's decision is final; and
(3) the earliest date the person may appeal.
(i) [(h)] All proceedings pursuant
to this section shall be governed by the Administrative Procedure
Act, Chapter 2001, Government Code.
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 August 2, 2010.
TRD-201004196
Cathy L. Hendricks, RID, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: September 12, 2010
For further information, please call: (512) 305-9040
The Texas Board of Architectural Examiners proposes new §1.153, concerning Deferred Adjudication. The new rule specifies that a person who completes a term of deferred adjudication of a criminal charge which is later dropped would not be considered to have been convicted of a crime for purposes of board rules. The proposed rule creates an exception to allow consideration of a deferred adjudication if registration of the individual would pose a threat to the public and registration would create an opportunity for further criminal conduct. The rule also specifies that the board may take disciplinary action for a deferred and ultimately discharged criminal charge if the criminal offense in question is a violation of laws enforced by the board. The rule implements House Bill 2808 which was passed by the 81st Legislature.
Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, has determined that for the first five-year period the new rule is in effect, the new rule will have no significant fiscal impact upon state government and no fiscal impact on local government.
Ms. Hendricks also has determined that for the first five-year period the new rule is in effect the public will benefit from having a rule which is in compliance with current law and which clearly specifies that a person who receives a deferred adjudication will not have action taken against his or her architectural registration in most circumstances. There will usually be no fiscal impact upon persons who receive deferred adjudication. The rule provides disciplinary action will not be taken against those who receive deferred adjudication except under circumstances in which they would have received disciplinary action even in the absence of the rule. Thus, there is no fiscal impact which would result from the adoption of the rule. The new rule is applicable only to individuals and will have no fiscal impact on small or micro-business. Therefore no Economic Impact Statement and Regulatory Flexibility Analysis are required.
Comments may be submitted to Cathy L. Hendricks, ASID/IIDA, Executive Director, Texas Board of Architectural Examiners, P.O. Box 12337, Austin, TX 78711-2337.
The new rule is proposed pursuant to §1051.202, Texas Occupations Code, which provides the Texas Board of Architectural Examiners with authority to promulgate rules to implement Chapter 1051, Texas Occupations Code. The rule is also proposed pursuant to §1051.207, Texas Occupations Code, which directs the board to adopt rules to implement Chapter 53, Texas Occupations Code, which specifies the procedures for consideration of criminal conduct in licensing or maintaining the licensure of professionals, including conduct for which deferred adjudication is granted.
The proposed new rule does not affect any other statutes.
§1.153.Deferred Adjudication.
(a) For purposes of §1.27 and §1.149 of this chapter (relating to Provisional Licensure and Criminal Convictions), a person is not convicted for committing a criminal offense if:
(1) the person entered a plea of guilty or nolo contendere;
(2) the court deferred further proceedings without entering an adjudication of guilt and placed the person under the supervision of the court or an officer of the court; and
(3) at the conclusion of a period of supervision, the judge dismissed the proceedings and discharged the person.
(b) Notwithstanding subsection (a) of this section, the executive director may consider a person to have been convicted for committing a criminal offense upon a finding that:
(1) the person may pose a continued threat to the public; or
(2) registration would create an opportunity for the person to engage in the same type of criminal activity as that for which the person pled guilty or nolo contendere.
(c) If a person pleads guilty or nolo contendere to conduct which is a violation of a law enforced by the Board, regardless of whether adjudication is deferred, the Board may take disciplinary action.
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 August 2, 2010.
TRD-201004197
Cathy L. Hendricks, RID, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: September 12, 2010
For further information, please call: (512) 305-9040
SUBCHAPTER A. SCOPE; DEFINITIONS
The Texas Board of Architectural Examiners proposes an amendment to §3.5, concerning Terms Defined Herein. The amendment is necessary to define the term "rendering" for purposes of the rules and regulations relating to the practice of landscape architecture. The proposed amendment would define "rendering" as a drawing, illustration or other depiction of the anticipated appearance of a landscape architectural project after construction. The definition would distinguish renderings from construction documents and would explicitly specify that a rendering used for advertising or marketing purposes is not subject to a requirement that a "not for construction, permit or regulatory approval" disclaimer appear on the face of the document. Currently the disclaimer requirement applies to all documents issued for purposes other than construction, permit or regulatory approval.
Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, has determined that for the first five-year period the amended rule is in effect, the amendment will have no significant fiscal impact upon state government and no fiscal impact on local government.
Ms. Hendricks also has determined that for the first five-year period the amended rule is in effect the public will benefit from having a clear articulation of the meaning of the word "rendering" for regulatory purposes. Defining the term provides clarification regarding the application of the sealing and stamping rules to renderings. Defining the term "rendering" is not anticipated to have a fiscal impact upon persons required to comply with the rule. The amendment will have no fiscal impact on small or micro-business. Therefore no Economic Impact Statement and Regulatory Flexibility Analysis are required.
Comments may be submitted to Cathy L. Hendricks, ASID/IIDA, Executive Director, Texas Board of Architectural Examiners, P.O. Box 12337, Austin, TX 78711-2337.
The amendment is proposed pursuant to §1051.202, Texas Occupations Code, which provides the Texas Board of Architectural Examiners with authority to promulgate rules to regulate the practice of landscape architecture.
The proposed amendment does not affect any other statutes.
§3.5.Terms Defined Herein.
The following words, terms, and acronyms, when used in this
chapter [Chapter
], shall have the following meanings, unless
the context clearly indicates otherwise.
(1) The Act--The Landscape Architects' RegistrationLaw.
(2) Actual Signature--A personal signature of the individual whose name is signed or an authorized copy of such signature.
(3) Administrative Procedure Act (APA)--Texas Government Code §§2001.001 et seq.
(4) APA--Administrative Procedure Act.
(5) Applicant--An individual who has submitted an application for registration or reinstatement but has not yet completed the registration or reinstatement process.
(6) Architectural Barriers Act--Article 9102, Vernon's Texas Civil Statutes and Texas Government Code, Chapter 469.
(7) Authorship--The state of having personally created something.
(8) Barrier-Free Design--The design of a facility or the design of an alteration of a facility which complies with the Texas Accessibility Standards, the Americans with Disabilities Act, the Fair Housing Accessibility Guidelines, or similarly accepted standards for accessible design.
(9) Board--Texas Board of Architectural Examiners.
(10) Cancel, Cancellation, or Cancelled--The termination of a Texas landscape architectural registration certificate by operation of law two years after it expires without renewal by the certificate-holder.
(11) Candidate--An Applicant approved by the Board to take the LARE.
(12) CEPH--Continuing Education Program Hour(s).
(13) Chair--The member of the Board who serves as the Board's presiding officer.
(14) CLARB--Council of Landscape Architectural Registration Boards.
(15) Construction Documents--Drawings; specifications; and addenda, change orders, construction change directives, and other Supplemental Documents prepared for the purpose(s) of Regulatory Approval, permitting, or construction.
(16) Consultant--An individual retained by a Landscape Architect who prepares or assists in the preparation of technical design documents issued by the Landscape Architect for use in connection with the Landscape Architect's Construction Documents.
(17) Contested Case--A proceeding, including a licensing proceeding, in which the legal rights, duties, or privileges of a party are to be determined by a state agency after an opportunity for adjudicative hearing.
(18) Continuing Education Program Hour (CEPH)--At least fifty (50) minutes of time spent in an activity meeting the Board's continuing education requirements.
(19) Council of Landscape Architectural Registration Boards (CLARB)--An international nonprofit organization whose members are landscape architectural licensing boards of the U.S. states and Canadian provinces that license landscape architects.
(20) Delinquent--A registration status signifying that a Landscape Architect:
(A) has failed to remit the applicable renewal fee to the Board; and
(B) is no longer authorized to practice Landscape Architecture in Texas or use any of the terms restricted by the Landscape Architects' Registration Law.
(21) Direct Supervision--The amount of oversight by an individual overseeing the work of another whereby the supervisor and the individual being supervised work in close proximity to one another and the supervisor has both control over and detailed professional knowledge of the work prepared under his or her supervision.
(22) E-mail Directory--A listing of e-mail addresses:
(A) used to advertise landscape architectural services; and
(B) posted on the Internet under circumstances where the Landscape Architects included in the list have control over the information included in the list.
(23) Emeritus Landscape Architect (or Landscape Architect Emeritus)--An honorary title that may be used by a Landscape Architect who has retired from the practice of Landscape Architecture in Texas pursuant to §1052.155 of the Texas Occupations Code.
(24) Energy-Efficient Design--The design of a project and the specification of materials to minimize the consumption of energy in the use of the project. The term includes energy efficiency strategies by design as well as the incorporation of alternative energy systems.
(25) Feasibility Study--A report of a detailed investigation and analysis conducted to determine the advisability of a proposed landscape architectural project from a technical landscape architectural standpoint.
(26) Good Standing--
(A) a registration status signifying that a Landscape Architect is not delinquent in the payment of any fees owed to the Board; or
(B) an application status signifying that an Applicant or Candidate is not delinquent in the payment of any fees owed to the Board, is not the subject of a pending TBAE enforcement proceeding, and has not been the subject of formal disciplinary action by a landscape architectural registration board that would provide a ground for the denial of the application for landscape architectural registration in Texas.
(27) Governmental Entity--A Texas state agency or department; a district, authority, county, municipality, or other political subdivision of Texas; or a publicly owned Texas utility.
(28) Governmental Jurisdiction--A governmental authority such as a state, territory, or country beyond the boundaries of Texas.
(29) Inactive--A registration status signifying that a Landscape Architect may not practice Landscape Architecture in the State of Texas.
(30) LAAB--Landscape Architectural Accreditation Board.
(31) Landscape Architect--An individual who holds a valid Texas landscape architectural registration certificate granted by the Board.
(32) Landscape Architect Registration Examination (LARE)--The standardized test that a Candidate must pass in order to obtain a valid Texas landscape architectural registration certificate.
(33) Landscape Architects' Registration Law--Article 249c, Vernon's Texas Civil Statutes, and Chapter 1052, Texas Occupations Code.
(34) Landscape Architectural Accreditation Board (LAAB)--An agency that accredits landscape architectural degree programs in the United States.
(35) Landscape Architectural Intern--An individual participating in an internship to complete the experiential requirements for landscape architectural registration in Texas.
(36) Landscape Architecture--The art and science of landscape analysis, landscape planning, and landscape design, including the performance of professional services such as consultation, investigation, research, the preparation of general development and detailed site design plans, the preparation of studies, the preparation of specifications, and responsible supervision related to the development of landscape areas for:
(A) the planning, preservation, enhancement, and arrangement of land forms, natural systems, features, and plantings, including ground and water forms;
(B) the planning and design of vegetation, circulation, walks, and other landscape features to fulfill aesthetic and functional requirements;
(C) the formulation of graphic and written criteria to govern the planning and design of landscape construction development programs, including:
(i) the preparation, review, and analysis of master and site plans for landscape use and development;
(ii) the analysis of environmental, physical, and social considerations related to land use;
(iii) the preparation of drawings, construction documents, and specifications; and
(iv) construction observation;
(D) design coordination and review of technical submissions, plans, and construction documents prepared by individuals working under the direction of the Landscape Architect;
(E) the preparation of feasibility studies, statements of probable construction costs, and reports and site selection for landscape development and preservation;
(F) the integration, site analysis, and determination of the location of buildings, structures, and circulation and environmental systems;
(G) the analysis and design of:
(i) site landscape grading and drainage;
(ii) systems for landscape erosion and sediment control; and
(iii) pedestrian walkway systems;
(H) the planning and placement of uninhabitable landscape structures, plants, landscape lighting, and hard surface areas;
(I) the collaboration of Landscape Architects with other professionals in the design of roads, bridges, and structures regarding the functional, environmental, and aesthetic requirements of the areas in which they are to be placed; and
(J) field observation of landscape site construction, revegetation, and maintenance.
(37) LARE--Landscape Architect Registration Examination.
(38) Licensed--Registered.
(39) Member Board--A landscape architectural registration board that is part of CLARB.
(40) Nonregistrant--An individual who is not a Landscape Architect.
(41) Principal--A Landscape Architect who is responsible, either alone or with other Landscape Architects, for an organization's practice of Landscape Architecture.
(42) Prototypical--From or of a landscape architectural design intentionally created not only to establish the landscape architectural parameters of a project but also to serve as a functional model on which future variations of the basic landscape architectural design would be based for use in additional locations.
(43) Registrant--Landscape Architect.
(44) Regulatory Approval--The approval of Construction Documents by the applicable Governmental Entity after a review of the landscape architectural content of the Construction Documents as a prerequisite to construction of a project.
(45) Reinstatement--The procedure through which a Surrendered or revoked Texas landscape architectural registration certificate is restored.
(46) Rendering--A drawing, illustration or other artwork created for the purpose of demonstrating the anticipated appearance of a proposed design after construction which allows a client to make design-related decisions throughout the course of the project. A Rendering is distinct from a Construction Document in that it is not intended for Regulatory Approval, permitting, or construction and generally lacks the detail to be used for those purposes. A Landscape Architect is not required to affix his or her name, date of issuance, or statement of intent to a Rendering issued solely for advertising, marketing, or presentation to a client for purposes other than the client's use in making design-related decisions.
(47) [(46)] Renewal--The procedure
through which a Landscape Architect pays a periodic fee so that the
Landscape Architect's registration certificate will continue to be
effective.
(48) [(47)] Responsible charge--That
degree of control over and detailed knowledge of the content of technical
submissions during their preparation as is ordinarily exercised by
registered landscape architects applying the applicable landscape
architectural standard of care.
(49) [(48)] Revocation or Revoked--The
termination of a landscape architectural certificate by the Board.
(50) [(49)] Rules and Regulations
of the Board--22 Texas Administrative Code §§3.1 et seq.
(51) [(50)] Rules of Procedure
of SOAH--1 Texas Administrative Code §§155.1 et seq.
(52) [(51)] Secretary-Treasurer--The
member of the Board responsible for signing the official copy of the
minutes of each Board meeting and maintaining the record of Board
members' attendance at Board meetings.
(53) [(52)] SOAH--State Office
of Administrative Hearings.
(54) [(53)] State Office of Administrative
Hearings (SOAH)--A Governmental Entity created to serve as an independent
forum for the conduct of adjudicative hearings involving the executive
branch of Texas government.
(55) [(54)] Supervision and Control--The
amount of oversight by a landscape architect overseeing the work of
another whereby:
(A) the landscape architect and the individual performing the work can document frequent and detailed communication with one another and the landscape architect has both control over and detailed professional knowledge of the work; or
(B) the landscape architect is in Responsible Charge of the work and the individual performing the work is employed by the landscape architect or by the landscape architect's employer.
(56) [(55)] Supplemental Document--A
document that modifies or adds to the technical landscape architectural
content of an existing Construction Document.
(57) [(56)] Surrender--The act
of relinquishing a Texas landscape architectural registration certificate
along with all privileges associated with the certificate.
(58) [(57)] Sustainable Design--An
integrative approach to the process of design which seeks to avoid
depletion of energy, water, and raw material resources; prevent environmental
degradation caused by facility and infrastructure development during
their implementation and over their life cycle; and create environments
that are livable and promote health, safety and well-being. Sustainability
is the concept of meeting present needs without compromising the ability
of future generations to meet their own needs.
(59) [(58)] Table of Equivalents
for Experience in Landscape Architecture--22 Texas Administrative
Code §3.191 and §3.192 of this
chapter [Chapter].
(60) [(59)] TBAE--Texas Board
of Architectural Examiners.
(61) [(60)] TDLR--Texas Department
of Licensing and Regulation.
(62) [(61)] Texas Department
of Licensing and Regulation (TDLR)--A Texas state agency responsible
for the implementation and enforcement of the Texas Architectural
Barriers Act.
(63) [(62)] Texas Guaranteed
Student Loan Corporation (TGSLC)--A public, nonprofit corporation
that administers the Federal Family Education Loan Program.
(64) [(63)] TGSLC--Texas Guaranteed
Student Loan Corporation.
(65) [(64)] Vice-Chair--The member
of the Board who serves as the assistant presiding officer and, in
the absence of the Chair, serves as the Board's presiding officer.
If necessary, the Vice-Chair succeeds the Chair until a new Chair
is appointed.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 2, 2010.
TRD-201004198
Cathy L. Hendricks, RID, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: September 12, 2010
For further information, please call: (512) 305-9040
The Texas Board of Architectural Examiners proposes new §3.26, concerning Preliminary Evaluation of Criminal History. The new rule pertains to the criminal history of persons considering landscape architectural registration. The rule creates a procedure for persons who have a criminal history to obtain from the board a preliminary evaluation letter assessing their chances of becoming registered as a landscape architect in light of their criminal history. The rule specifies the information a person must file in order to request an evaluation letter. The rule requires the executive director to issue a letter within 90 days which states whether the person would likely be ineligible for registration due to the requestor's criminal conduct. The rule includes procedures for reconsideration of a determination of ineligibility and a procedure for appealing such a determination to the State Office of Administrative Hearings. A person who has been determined to be ineligible for registration may not request another preliminary letter until one year after the issuance of the initial letter. If, after consideration of a proposal for decision by the State Office of Administrative Hearings, the board issues a final order finding the requestor is ineligible, the requestor may not seek a subsequent preliminary evaluation letter for three years but may ask for reconsideration under certain circumstances. The rule implements House Bill 963 which was passed by the 81st Legislature.
Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, has determined that for the first five-year period the new rule is in effect, the new rule will have no significant fiscal impact upon state government and no fiscal impact on local government.
Ms. Hendricks also has determined that for the first five-year period the new rule is in effect the public benefits expected as a result of enforcing the new rule will be the guidance provided on the process for determining if a criminal history will serve as a bar to registration. The public will further benefit from a uniform, articulated objective process for discovering if it is worthwhile to consider seeking registration in light of a criminal history. No one is required to seek a preliminary evaluation letter. Therefore, there will be no fiscal impact upon persons required to comply with the section in that no one is required to comply with it. The new rule will have no fiscal impact on small or micro-business. Therefore no Economic Impact Statement and Regulatory Flexibility Analysis are required.
Comments may be submitted to Cathy L. Hendricks, ASID/IIDA, Executive Director, Texas Board of Architectural Examiners, P.O. Box 12337, Austin, TX 78711-2337.
The new rule is proposed pursuant to §1051.202, Texas Occupations Code, which provides the Texas Board of Architectural Examiners with authority to promulgate rules to implement Chapter 1051, Texas Occupations Code. The rule is also proposed pursuant to §1051.207, Texas Occupations Code which requires the Board to adopt rules to implement Chapter 53, Texas Occupations Code, which requires the issuance of preliminary evaluations letters.
The proposed new rule does not affect any other statutes.
§3.26.Preliminary Evaluation of Criminal History.
(a) An Applicant, Candidate or a person enrolled or planning to enroll in an accredited landscape architectural educational program may make a written request to the Board's executive director for a preliminary criminal history evaluation letter which states the person's eligibility for registration under §3.149 of this chapter (relating to Criminal Convictions).
(b) A person who requests a criminal history evaluation shall provide the following information:
(1) a statement describing the offenses for which the requestor has a criminal history;
(2) any court documents including, but not limited to, indictments, orders of deferred adjudication, judgments, probation records, and evidence of completion of probation, if applicable;
(3) the names and contact information of the parole or probation department, if any, to which the requestor reports; and
(4) the required fee for determining eligibility.
(c) Within 90 days after receiving a request which complies with subsection (b) of this section, the executive director shall issue a criminal history evaluation letter which states:
(1) a determination that a ground for ineligibility based upon criminal conduct does not exist; or
(2) a determination that the requestor is ineligible due to criminal conduct and a specific explanation of the basis for that determination, including the relationship between the conduct in question and the practice of Landscape Architecture.
(d) For purposes of determining eligibility for registration, a record of conviction is conclusive evidence of guilt. The Board may not consider a conviction in determining eligibility for registration upon receipt of proof that the conviction or an order of probation with or without adjudication of guilt has been reversed or set aside.
(e) In the absence of evidence that was not disclosed by the requestor or reasonably available when a request for a criminal history evaluation was under consideration, the executive director's criminal history evaluation letter is a final determination regarding the requestor's eligibility for registration. If found to be ineligible for registration, a requestor may not apply for registration until one year after the date the letter is issued. A requestor who is determined to be ineligible may:
(1) submit a request for reconsideration of the determination of ineligibility based upon evidence that was not disclosed or reasonably available to the agency at the time the determination was made;
(2) submit a new request for an evaluation no sooner than one year after the date upon which the criminal history evaluation letter was issued; or
(3) request a hearing on the determination made in the executive director's criminal history evaluation letter. A hearing conducted pursuant to this section is subject to the Administrative Procedure Act, Chapter 2001, Government Code.
(f) The Board shall issue a final order on the determination made in the criminal history evaluation after consideration of a proposal for decision issued by an administrative law judge at the State Office of Administrative Hearings. The Board's final order must specify findings of fact and conclusions of law, stated separately, regarding the person's eligibility for registration in light of his or her criminal history record.
(g) A person who is found to be ineligible by a final order of the Board may not file another request for a criminal history evaluation or apply for registration until three (3) years after the date of the Board's final order. However, a person may request reconsideration of the final order based upon evidence that was not disclosed or reasonably available to the Board at the time the final order was issued.
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 August 2, 2010.
TRD-201004199
Cathy L. Hendricks, RID, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: September 12, 2010
For further information, please call: (512) 305-9040
The Texas Board of Architectural Examiners proposes new §3.27, concerning Provisional Licensure. The new rule pertains to the provisional licensure of persons who have a criminal history but who are otherwise eligible for architectural registration. The rule creates a procedure for persons who have a criminal history to obtain a provisional license if they have not committed certain serious or violent offenses, an offense relating to the practice of landscape architecture, or any other offense within the past 5 years. The provisional license would expire after 6 months. The proposed rule specifies that a provisional registration may be revoked upon violation of laws enforced by the board or upon the commission of another criminal act. If a person successfully completes the provisional licensure period, he or she would receive an unrestricted certificate of registration. If the provisional registration is revoked, the person who held it may not seek registration for 3 years. The rule implements House Bill 963 which was passed by the 81st Legislature.
Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, has determined that for the first five-year period the new rule is in effect, the new rule will have no significant fiscal impact upon state government and no fiscal impact on local government.
Ms. Hendricks also has determined that for the first five-year period the new rule is in effect the public benefits expected as a result of enforcing the new rule will be the guidance provided on the process for determining if a criminal history will serve as a bar to registration. The public will benefit from a uniform, articulated objective process for discovering if it is worthwhile to consider seeking registration in light of a criminal history. Since no one is required to seek a preliminary evaluation letter there would be no fiscal impact upon persons required to comply with the section in that no one is required to comply with it. The new rule will have no fiscal impact on small or micro-business. Therefore no Economic Impact Statement and Regulatory Flexibility Analysis are required.
Comments may be submitted to Cathy L. Hendricks, ASID/IIDA, Executive Director, Texas Board of Architectural Examiners, P.O. Box 12337, Austin, TX 78711-2337.
The new rule is proposed pursuant to §1051.202, Texas Occupations Code, which provides the Texas Board of Architectural Examiners with authority to promulgate rules to implement Chapter 1051, Texas Occupations Code. The rule is also proposed pursuant to §1051.207, Texas Occupations Code, which requires the board to implement Chapter 53, Texas Occupations Code, relating to procedures for consideration of criminal conduct in licensing or maintaining the licensure of professionals.
The proposed new rule does not affect any other statutes.
§3.27.Provisional Licensure.
(a) The Board shall grant a Certificate of Registration or a provisional Certificate of Registration to a Candidate who has been convicted of an offense that:
(1) is not directly related to the Practice of Landscape Architecture as determined by the executive director under §3.149 of this chapter (relating to Criminal Convictions);
(2) was committed earlier than five (5) years before the date the Candidate filed an application for registration;
(3) is not an offense listed in §3g, Article 42.12, Code of Criminal Procedure; and
(4) is not a sexually violent offense, as defined by Article 62.001, Code of Criminal Procedure.
(b) A provisional Certificate of Registration expires six (6) months after the date it is issued.
(c) A provisional Certificate of Registration may be Revoked for the following reasons:
(1) the provisional Registrant commits another offense during the 6-month provisional Registration period;
(2) the provisional Registrant's community supervision, mandatory supervision, or parole is Revoked; or
(3) the provisional Registrant violates a statute or rule enforced by the Board.
(d) A provisional Registrant who is subject to community supervision, mandatory supervision, or parole shall provide the Board name and contact information of the probation or parole department to which the provisional Registrant reports. The Board shall provide notice to the department upon the issuance of the provisional Certificate of Registration, as well as any terms, conditions or limitations upon the provisional Registrant's practice.
(e) Upon successful completion of the provisional Registration period, the Board shall issue a Certificate of Registration to the provisional Registrant. If a provisional Registrant's provisional Certificate is Revoked, the provisional Registrant is disqualified from receiving a Certificate of Registration and may not apply for a Certificate of Registration for a period of three (3) years from the date of Revocation.
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 August 2, 2010.
TRD-201004200
Cathy L. Hendricks, RID, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: September 12, 2010
For further information, please call: (512) 305-9040
The Texas Board of Architectural Examiners proposes an amendment to §3.103, concerning Required Use of Seal and Retention of Sealed Documents. The amendment requires a landscape architect to include his or her name, registration number and a disclaimer to renderings issued for a purpose other than regulatory approval, permitting or construction. The disclaimer must appear on the document in a conspicuous place and state that it is not intended for approval, permitting or construction.
Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, has determined that for the first five-year period the amended rule is in effect, the amendment will have no significant fiscal impact upon state government and no fiscal impact on local government.
Ms. Hendricks also has determined that for the first five-year period the amended rule is in effect the public will benefit from having a clear statement of the landscape architect's intent appear on documents which have not been developed to the extent in which they have adequate detail and direction for governmental approval and construction. The rule would prevent misunderstandings and potential misuse of documents which have not been developed into complete construction documents. There will be no fiscal impact upon persons who are required to comply with the rule. The amendment will have no fiscal impact on small or micro-business. Therefore no Economic Impact Statement and Regulatory Flexibility Analysis are required.
Comments may be submitted to Cathy L. Hendricks, ASID/IIDA, Executive Director, Texas Board of Architectural Examiners, P.O. Box 12337, Austin, TX 78711-2337.
The amendment is proposed pursuant to §1051.202, Texas Occupations Code, which provides the Texas Board of Architectural Examiners with authority to promulgate rules to regulate the practice of landscape architecture.
The proposed amendment does not affect any other statutes.
§3.103.Required Use of Seal and Retention of Sealed Documents.
(a) Construction Documents:
(1) On every Construction Document prepared by a Landscape Architect or under a Landscape Architect's Supervision and Control, the Landscape Architect shall affix or cause the affixation of:
(A) the Landscape Architect's seal;
(B) the Landscape Architect's signature (across the face of the seal's image or directly under or adjacent to the seal's image); and
(C) the date of signing (including the month, day, and year) before the Construction Document is issued by or under the authority of the Landscape Architect.
(2) The Landscape Architect's seal and signature and the date must be affixed in a manner that will be clearly visible and legible on each copy of a Construction Document issued by or under the authority of the Landscape Architect. The Landscape Architect's signature and the date may not conceal or obscure the name or registration number on the seal.
(3) Construction Documents requiring a seal, signature, and date include the following:
(A) each sheet of drawings or electronic equivalent of a sheet of drawings;
(B) each specification: if a specification is included in a bound grouping of specifications that includes a table of contents or index listing each individual specification, the seal must be placed in at least one conspicuous location on the bound document; any individual specification sheet or electronic equivalent of a specification sheet that is issued separately must be sealed individually;
(C) each sheet or electronic equivalent of a sheet that identifies the project and provides a list of sealed Construction Documents, such as a title sheet, table of contents, or index; and
(D) each landscape architectural drawing and specification that is part of an addenda, change order, construction change directive, or other Supplemental Document.
(b) Documents issued for purposes other than regulatory approval, permitting, and construction:
(1) A landscape architectural drawing, Rendering, or specification issued by or under the authority of a Landscape Architect for a purpose other than regulatory approval, permitting, or construction shall include:
(A) the Landscape Architect's name;
(B) the date the document is issued (including the month, day, and year); and
(C) the following statement placed in a conspicuous location on the document: "Not for regulatory approval, permitting, or construction."
(2) Each landscape architectural drawing and specification
included in a Feasibility Study issued by or under the authority of
a Landscape Architect must be sealed, signed, and dated in the manner
described in subsection (a) of this section [Subsection
3.103(a)] or labeled with the Landscape Architect's name and
the date and clearly marked to indicate that it may not be used for
regulatory approval, permitting, or construction in the manner described
in this subsection [Subsection 3.103(b)].
(c) For a minimum of ten (10) years from the date of signature on each Construction Document and Prototypical Construction Document sealed by or under the authority of a Landscape Architect, the sealing Landscape Architect shall be responsible for the maintenance of the sealed, signed, and dated original document or a copy of the document bearing the clearly visible and legible seal, signature, and date.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 2, 2010.
TRD-201004201
Cathy L. Hendricks, RID, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: September 12, 2010
For further information, please call: (512) 305-9040
The Texas Board of Architectural Examiners proposes an amendment to §3.149, concerning Criminal Convictions. The amendment pertains to the authority of the board to action against the continued or prospective registration of a person upon his or her criminal conviction. The amendment clarifies that the board may act against a registration for the commission of a crime which directly relates to the practice of landscape architecture, a crime unrelated to the practice of landscape architecture but which was committed within the past 5 years, or certain specified serious crimes involving violence, sexual offenses and minors. The rule is also amended to include provisional licensing as one of the actions the board may take against one who is convicted of these offenses. The amendment also makes technical amendments to create cross-references to the definitions of defined terms. The rule implements House Bill 963 which was passed by the 81st Legislature.
Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, has determined that for the first five-year period the amended rule is in effect, the amendment will have no significant fiscal impact upon state government and no fiscal impact on local government.
Ms. Hendricks has also determined that for the first five-year period the amended rule is in effect the public will benefit from having a rule which is in compliance with current law and which specifies a procedure for evaluating criminal convictions and determining the regulatory action to be taken upon conviction. There will likely be a fiscal impact upon persons required to comply with the section in that action may be taken against the license of one who has been convicted which may restrict or terminate the ability to practice as a landscape architect. However, the restrictions imposed by the rule are mandated by the statute and there is no way for the rule to be crafted to minimize the fiscal impact upon those who have a criminal conviction without conflicting with the statute. The amendment is applicable to only individuals and will have no fiscal impact on small or micro-business. Therefore no Economic Impact Statement and Regulatory Flexibility Analysis are required.
Comments may be submitted to Cathy L. Hendricks, ASID/IIDA, Executive Director, Texas Board of Architectural Examiners, P.O. Box 12337, Austin, TX 78711-2337.
The amendment is proposed pursuant to §1051.202, Texas Occupations Code, which provides the Texas Board of Architectural Examiners with authority to promulgate rules to implement Chapter 1051, Texas Occupations Code. The rule is also proposed pursuant to §1051.207, Texas Occupations Code, which directs the board to adopt rules to implement Chapter 53, Texas Occupations Code, which specifies the procedures for consideration of criminal conduct in licensing or maintaining the licensure of professionals.
The proposed amendment does not affect any other statutes.
§3.149.Criminal Convictions.
(a) Pursuant to Chapter 53, Texas Occupations Code
and §2005.052, Texas Government Code, the Board may suspend or
revoke an existing certificate of registration, disqualify a person
from receiving a certificate of registration, issue a provisional
license subject to the terms and limitations of §3.27 of this
chapter (relating to Provisional Licensure), or deny to a person
the opportunity to be examined for a certificate of registration because
of the person's conviction for committing an offense [of
a crime] if:
(1) the offense [crime]
directly relates to the duties and responsibilities of a
Landscape Architect; [registered landscape architect.]
(2) the offense does not directly relate to the duties and responsibilities of a Landscape Architect and was committed within five (5) years before the date the person applied for registration as a Landscape Architect;
(3) the offense is listed in §3g, Article 42.12, Texas Code of Criminal Procedure; or
(4) the offense is a sexually violent offense, as defined by Article 62.001, Texas Code of Criminal Procedure.
(b) The following procedures will apply in the consideration of an application for registration as a Landscape Architect or in the consideration of a Registrant's criminal history:
(1) Each Applicant will be required to provide information regarding the Applicant's criminal history as part of the application process. Each Registrant will be required to report any criminal conviction to the Board within thirty (30) days of the date the conviction is entered by the court and to verify the status of the Registrant's criminal history on each registration renewal form. An Applicant or Registrant shall not be required to report a conviction for a minor traffic offense.
(2) An Applicant or Registrant who has been convicted
for committing any offense [of any crime] will be
required to provide a summary of each conviction in sufficient detail
to allow the executive director to determine whether it appears to
directly relate to the duties and responsibilities of a Landscape
Architect [registered landscape architect].
(3) If the executive director determines the conviction
might be directly related to the duties and responsibilities of a
Landscape Architect [registered landscape architect
], the Board's staff will obtain sufficient details regarding the conviction to allow
the Board to determine the effect of the conviction on the Applicant's
eligibility for registration or on the Registrant's fitness for continued
registration.
(c) [(b)] In determining whether
a criminal conviction is directly related to the duties and responsibilities
of a Landscape Architect [
registered landscape architect],
the executive director and the Board will consider the following:
(1) the nature and seriousness of the crime;
(2) the relationship of the crime to the purposes for
requiring a license to practice Landscape Architecture [
landscape architecture];
(3) the extent to which landscape architectural registration might offer an opportunity to engage in further criminal activity of the same type as that in which the Applicant or Registrant 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 a Landscape Architect [registered landscape architect].
(d) [(c)] In addition to the
factors that may be considered under subsection
(c) [(b)]
of this section, the executive director and the Board shall consider
the following:
(1) the extent and nature of the Applicant's or Registrant's past criminal activity;
(2) the age of the Applicant or Registrant at the time the crime was committed and the amount of time that has elapsed since the Applicant's or Registrant's last criminal activity;
(3) the conduct and work activity of the Applicant or Registrant prior to and following the criminal activity;
(4) evidence of the Applicant's or Registrant's rehabilitation or rehabilitative effort;
(5) other evidence of the Applicant's or Registrant's present fitness to practice as a Landscape Architect, including letters of recommendation from law enforcement officials involved in the prosecution or incarceration of the Applicant or Registrant or other persons in contact with the Applicant or Registrant; and
(6) proof that the Applicant or Registrant has maintained steady employment and has supported his/her dependents and otherwise maintained a record of good conduct and has paid all outstanding court costs, supervision fees, fines, and restitution as may have been ordered.
(e) [(d)] Crimes directly related
to the duties and responsibilities of a Landscape Architect
[registered landscape architect
] include any crime that reflects
a lack of fitness for professional licensure or a disregard of the
standards commonly upheld for the professional practice of Landscape
Architecture [landscape architecture], such as the
following:
(1) criminal negligence;
(2) soliciting, offering, giving, or receiving any form of bribe;
(3) the unauthorized use of property, funds, or proprietary information belonging to a client or employer;
(4) acts relating to the malicious acquisition, use,
or dissemination of confidential information related to
Landscape Architecture [landscape architecture
]; and
(5) any intentional violation as an individual or as a consenting party of any provision of the Act.
(f) [(e)] The Board shall revoke
the certificate of registration of any Registrant who is convicted
of any felony if the felony conviction results in incarceration. The
Board also shall revoke the certificate of registration of any Registrant
whose felony probation, parole, or mandatory supervision is revoked.
(g) [(f)] If an Applicant is
incarcerated as the result of a felony conviction, the Board may not
approve the Applicant for registration during the period of incarceration.
If an Applicant's felony probation, parole, or mandatory supervision
is revoked, the Board may not approve the Applicant for registration
until the Applicant successfully completes the sentence imposed as
a result of the revocation.
(h) [(g)] If the Board takes
action against any Applicant or Registrant pursuant to this section,
the Board shall provide the Applicant or Registrant with the following
information in writing:
(1) the reason for rejecting the application or taking action against the Registrant's certificate of registration;
(2) notice that upon exhaustion of the administrative remedies provided by the Administrative Procedure Act, Chapter 2001, Government Code, an action may be filed in a district court of Travis County for review of the evidence presented to the Board and its decision. The person must begin the judicial review by filing a petition with the court within 30 days after the Board's decision is final; and
(3) the earliest date the person may appeal.
(i) [(h)] All proceedings pursuant
to this section shall be governed by the Administrative Procedure
Act, Chapter 2001, Government Code.
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 August 2, 2010.
TRD-201004202
Cathy L. Hendricks, RID, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: September 12, 2010
For further information, please call: (512) 305-9040
The Texas Board of Architectural Examiners proposes new §3.153, concerning Deferred Adjudication. The new rule is necessary to specify that a person who completes a term of deferred adjudication of a criminal charge which is later dropped would not be considered to have been convicted of a crime for purposes of board rules. The proposed rule creates an exception to allow consideration of a deferred adjudication if registration of the individual would pose a threat to the public and registration would create an opportunity for further criminal conduct. The rule also specifies that the board may take disciplinary action for a deferred and ultimately discharged criminal charge if the criminal offense in question is a violation of laws enforced by the board. The rule implements House Bill 2808 which was passed by the 81st Legislature.
Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, has determined that for the first five-year period the new rule is in effect, the new rule will have no significant fiscal impact upon state government and no fiscal impact on local government.
Ms. Hendricks also has determined that for the first five-year period the new rule is in effect the public will benefit from having a rule which is in compliance with current law and which clearly specifies that a person who receives a deferred adjudication will not have action taken against his or her landscape architectural registration in most circumstances. There will usually be no fiscal impact upon persons who receive deferred adjudication. Under the rule, disciplinary action will not be taken against those who receive deferred adjudication except under circumstances in which they would have received disciplinary action even in the absence of the rule. Thus, there is no fiscal impact which would result from the adoption of the rule. The new rule is applicable only to individuals and will have no fiscal impact on small or micro-business. Therefore no Economic Impact Statement and Regulatory Flexibility Analysis are required.
Comments may be submitted to Cathy L. Hendricks, ASID/IIDA, Executive Director, Texas Board of Architectural Examiners, P.O. Box 12337, Austin, TX 78711-2337.
The new rule is proposed pursuant to §1051.202, Texas Occupations Code, which provides the Texas Board of Architectural Examiners with authority to promulgate rules to implement Chapter 1051, Texas Occupations Code. The rule is also proposed pursuant to §1051.207, Texas Occupations Code, which directs the board to adopt rules to implement Chapter 53, Texas Occupations Code, which specifies the procedures for consideration of criminal conduct in licensing or maintaining the licensure of professionals, including conduct for which deferred adjudication is granted.
The proposed new rule does not affect any other statutes.
§3.153.Deferred Adjudication.
(a) For purposes of §3.27 and §3.149 of this chapter (relating to Provisional Licensure and Criminal Convictions), a person is not convicted for committing a criminal offense if:
(1) the person entered a plea of guilty or nolo contendere;
(2) the court deferred further proceedings without entering an adjudication of guilt and placed the person under the supervision of the court or an officer of the court; and
(3) at the conclusion of a period of supervision, the judge dismissed the proceedings and discharged the person.
(b) Notwithstanding subsection (a) of this section, the executive director may consider a person to have been convicted for committing a criminal offense upon a finding that:
(1) the person may pose a continued threat to the public; or
(2) registration would create an opportunity for the person to engage in the same type of criminal activity as that for which the person pled guilty or nolo contendere.
(c) If a person pleads guilty or nolo contendere to conduct which is a violation of a law enforced by the Board, regardless of whether adjudication is deferred, the Board may take disciplinary action.
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 August 2, 2010.
TRD-201004203
Cathy L. Hendricks, RID, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: September 12, 2010
For further information, please call: (512) 305-9040
SUBCHAPTER A. SCOPE; DEFINITIONS
The Texas Board of Architectural Examiners proposes an amendment to §5.5, concerning Terms Defined Herein. The amendment is necessary to define the term "rendering" for purposes of the rules and regulations relating to the practice of registered interior designers. The proposed amendment would define "rendering" as a drawing, illustration or other depiction of the anticipated appearance of an interior design project after construction. The definition would distinguish renderings from construction documents and would explicitly specify that a rendering used for advertising or marketing purposes is not subject to a requirement that the statement "not for construction, permit or regulatory approval" appear on the face of the document. Currently the disclaimer requirement applies to all documents issued for purposes other than construction, permit or regulatory approval.
Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, has determined that for the first five-year period the amended rule is in effect, the amendment will have no significant fiscal impact upon state government and no fiscal impact on local government.
Ms. Hendricks also has determined that for the first five-year period the amended rule is in effect the public will benefit from having a clear articulation of the meaning of the word "rendering" for regulatory purposes. Defining the term provides clarification regarding the application of the sealing and stamping rules to renderings. Defining the term "rendering" is not anticipated to have a fiscal impact upon persons required to comply with the rule. The amendment will have no fiscal impact on small or micro-business. Therefore no Economic Impact Statement and Regulatory Flexibility Analysis are required.
Comments may be submitted to Cathy L. Hendricks, ASID/IIDA, Executive Director, Texas Board of Architectural Examiners, P.O. Box 12337, Austin, TX 78711-2337.
The amendment is proposed pursuant to §1051.202, Texas Occupations Code, which provides the Texas Board of Architectural Examiners with authority to promulgate rules to regulate the practice of interior design.
The proposed amendment does not affect any other statutes.
§5.5.Terms Defined Herein.
The following words, terms, and acronyms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.
(1) The Act--The Interior Designers' Registration Law.
(2) Actual Signature--A personal signature of the individual whose name is signed or an authorized copy of such signature.
(3) Administrative Procedure Act (APA)--Texas Government Code §§2001.001 et seq.
(4) APA--Administrative Procedure Act.
(5) Applicant--An individual who has submitted an application for registration or reinstatement but has not yet completed the registration or reinstatement process.
(6) Architectural Interior Construction--A building project that involves only the inside elements of a building and, in order to be completed, necessitates the "practice of architecture" as that term is defined in 22 Texas Administrative Code §1.5.
(7) Authorship--The state of having personally created something.
(8) Barrier-Free Design--The design of a facility or the design of an alteration of a facility which complies with the Texas Accessibility Standards, the Americans with Disabilities Act, the Fair Housing Accessibility Guidelines, or similarly accepted standards for accessible design.
(9) Board--Texas Board of Architectural Examiners.
(10) Cancel, Cancellation, or Cancelled--The termination of a Texas Interior Design registration certificate by operation of law two years after it expires without renewal by the certificate-holder.
(11) Candidate--An Applicant approved by the Board to take the Interior Design registration examination.
(12) CEPH--Continuing Education Program Hour(s).
(13) Chair--The member of the Board who serves as the Board's presiding officer.
(14) CIDA--The Council for Interior Design Accreditation.
(15) Construction Documents--Drawings; specifications; and addenda, change orders, construction change directives, and other Supplemental Documents prepared for the purpose(s) of Regulatory Approval, permitting, or construction.
(16) Consultant--An individual retained by a Registered Interior Designer who prepares or assists in the preparation of technical design documents issued by the Interior Designer for use in connection with the Interior Designer's Construction Documents.
(17) Contested Case--A proceeding, including a licensing proceeding, in which the legal rights, duties, or privileges of a party are to be determined by a state agency after an opportunity for adjudicative hearings.
(18) Continuing Education Program Hour (CEPH)--At least fifty (50) minutes of time spent in an activity meeting the Board's continuing education requirements.
(19) Council for Interior Design Accreditation (CIDA)--An agency that sets standards for postsecondary Interior Design education and evaluates college and university Interior Design programs.
(20) Delinquent--A registration status signifying that a Registered Interior Designer:
(A) has failed to remit the applicable renewal fee to the Board; and
(B) is no longer authorized to use the title "registered interior designer" in Texas.
(21) Direct Supervision--The amount of oversight by an individual overseeing the work of another whereby the supervisor and the individual being supervised work in close proximity to one another and the supervisor has both control over and detailed professional knowledge of the work prepared under his or her supervision.
(22) E-mail Directory--A listing of e-mail addresses:
(A) used to advertise Interior Design services; and
(B) posted on the Internet under circumstances where the Interior Designers included in the list have control over the information included in the list.
(23) Emeritus Interior Designer (or Interior Designer Emeritus)--An honorary title that may be used by a Registered Interior Designer who has retired from the practice of Interior Design in Texas pursuant to §1053.156 of the Texas Occupations Code.
(24) Energy-Efficient Design--The design of a project and the specification of materials to minimize the consumption of energy in the use of the project. The term includes energy efficiency strategies by design as well as the incorporation of alternative energy systems.
(25) Feasibility Study--A report of a detailed investigation and analysis conducted to determine the advisability of a proposed Interior Design project from a technical Interior Design standpoint.
(26) Good Standing--
(A) a registration status signifying that a Registered Interior Designer is not delinquent in the payment of any fees owed to the Board; or
(B) an application status signifying that an Applicant or Candidate is not delinquent in the payment of any fees owed to the Board, is not the subject of a pending TBAE enforcement proceeding, and has not been the subject of formal disciplinary action by an Interior Design registration board that would provide a ground for the denial of the application for Interior Design registration in Texas.
(27) Governmental Jurisdiction--A governmental authority such as a state, territory, or country beyond the boundaries of Texas.
(28) Inactive--A registration status signifying that a Registered Interior Designer may not practice Interior Design in the State of Texas.
(29) Interior Design--The identification, research, or development of creative solutions to problems relating to the function or quality of the interior environment; the performance of services relating to interior spaces, including programming, design analysis, space planning of non-load-bearing interior construction, and application of aesthetic principles, by using specialized knowledge of interior construction, building codes, equipment, materials, or furnishings; or the preparation of Interior Design plans, specifications, or related documents about the design of non-load-bearing interior spaces.
(30) Interior Designers' Registration Law--Article 249e, Vernon's Texas Civil Statutes, and Chapter 1053, Texas Occupations Code.
(31) Interior Design Intern--An individual participating in an internship to complete the experiential requirements for Interior Design registration by examination in Texas.
(32) Licensed--Registered.
(33) Member Board--An Interior Design registration board that is part of NCIDQ.
(34) National Council for Interior Design Qualification (NCIDQ)--A nonprofit organization of state and provincial interior design regulatory agencies and national organizations whose membership is made up in total or in part of interior designers.
(35) NCIDQ--National Council for Interior Design Qualification.
(36) Nonregistrant--An individual who is not a Registered Interior Designer.
(37) Principal--A Registered Interior Designer who is responsible, either alone or with other Registered Interior Designers, for an organization's practice of Interior Design.
(38) Registered Interior Designer--An individual who holds a valid Texas Interior Design registration granted by the Board.
(39) Registrant--Interior Designer.
(40) Regulatory Approval--The approval of Construction Documents by a Governmental Entity after a review of the Interior Design content of the Construction Documents as a prerequisite to construction or occupation of a building of facility.
(41) Rendering--A drawing, illustration, or other artwork created for the purpose of demonstrating the anticipated appearance of a proposed design after construction which allows a client to make design-related decisions throughout the course of the project. A Rendering is distinct from a Construction Document in that it is not intended for Regulatory Approval, permitting, or construction and generally lacks the detail to be used for those purposes. A Registered Interior Designer is not required to affix her or his name, date of issuance, or statement of intent to a Rendering issued solely for advertising, marketing, or presentation to a client for purposes other than the client's use in making design-related decisions.
(42) [(41)] Reinstatement--The
procedure through which a Surrendered or revoked Texas Interior Design
registration certificate is restored.
(43) [(42)] Renewal--The procedure
through which a Registered Interior Designer pays a periodic fee so
that his or her registration certificate will continue to be effective.
(44) [(43)] Responsible Charge--That
degree of control over and detailed knowledge of the content of technical
submissions during their preparation as is ordinarily exercised by
Registered Interior Designers applying the applicable Interior Design
standard of care.
(45) [(44)] Revocation or Revoked--The
termination of a Texas Interior Design registration certificate by
the Board.
(46) [(45)] Rules and Regulations
of the Board--22 Texas Administrative Code §§5.1 et seq.
(47) [(46)] Rules of Procedure
of SOAH--1 Texas Administrative Code §§155.1 et seq.
(48) [(47)] Secretary-Treasurer--The
member of the Board responsible for signing the official copy of the
minutes from each Board meeting and maintaining the record of Board
members' attendance at Board meetings.
(49) [(48)] SOAH--State Office
of Administrative Hearings.
(50) [(49)] State Office of Administrative
Hearings (SOAH)--A Governmental Entity created to serve as an independent
forum for the conduct of adjudicative hearings involving the executive
branch of Texas government.
(51) [(50)] Supervision and Control--The
amount of oversight by a Registered Interior Designer overseeing the
work of another whereby:
(A) the Registered Interior Designer and the individual performing the work can document frequent and detailed communication with one another and the Registered Interior Designer has both control over and detailed professional knowledge of the work; or
(B) the Registered Interior Designer is in Responsible Charge of the work and the individual performing the work is employed by the Registered Interior Designer or by the Registered Interior Designer's employer.
(52) [(51)] Supplemental Document--A
document that modifies or adds to the technical Interior Design content
of an existing Construction Document.
(53) [(52)] Surrender--The act
of relinquishing a Texas Interior Design registration certificate
along with all privileges associated with the certificate.
(54) [(53)] Sustainable Design--An
integrative approach to the process of design which seeks to avoid
depletion of energy, water, and raw material resources; prevent environmental
degradation caused by facility and infrastructure development during
their implementation and over their life cycle; and create environments
that are livable and promote health, safety and well-being. Sustainability
is the concept of meeting present needs without compromising the ability
of future generations to meet their own needs.
(55) [(54)] Table of Equivalents
for Education and Experience in Interior Design--22 Texas Administrative
Code §§5.201 et seq. [et. seq.] (§§5.201
- 5.203 of this chapter).
(56) [(55)] TBAE--Texas Board
of Architectural Examiners.
(57) [(56)] TDLR--Texas Department
of Licensing and Regulation.
(58) [(57)] Texas Department
of Licensing and Regulations (TDLR)--A Texas state agency responsible
for the implementation and enforcement of the Texas Architectural
Barriers Act.
(59) [(58)] Texas Guaranteed
Student Loan Corporation (TGSLC)--A public, nonprofit corporation
that administers the Federal Family Education Loan Program.
(60) [(59)] TGSLC--Texas Guaranteed
Student Loan Corporation.
(61) [(60)] Vice-Chair--The member
of the Board who serves as the assistant presiding officer and, in
the absence of the Chair, serves as the Board's presiding officer.
If necessary, the Vice-Chair succeeds the Chair until a new Chair
is appointed.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 2, 2010.
TRD-201004204
Cathy L. Hendricks, RID, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: September 12, 2010
For further information, please call: (512) 305-9040
The Texas Board of Architectural Examiners proposes new §5.36, concerning Preliminary Evaluation of Criminal History. The new rule pertains to the criminal history of persons considering registration as a registered interior designer. The rule creates a procedure for a person who has a criminal history to obtain a preliminary evaluation letter from the board assessing his or her chance of becoming registered as a registered interior designer in light of the criminal history. The rule specifies the information a person must file in order to request an evaluation letter. The rule requires the executive director to issue a letter within 90 days which states whether the person would likely be ineligible for registration due to the requestor's criminal conduct. The rule includes procedures for reconsideration of a determination of ineligibility and a procedure for appealing such a determination to the State Office of Administrative Hearings. A person who has been determined to be ineligible for registration may not request another preliminary letter until one year after the issuance of the initial letter but may ask for reconsideration under certain circumstances. If, after consideration of a proposal for decision by the State Office of Administrative Hearings, the board issues a final order finding the requestor is ineligible, the requestor may not seek a subsequent preliminary evaluation letter for three years. The rule implements House Bill 963 which was passed by the 81st Legislature.
Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, has determined that for the first five-year period the new rule is in effect, the new rule will have no significant fiscal impact upon state government and no fiscal impact on local government.
Ms. Hendricks also has determined that for the first five-year period the new rule is in effect the public benefits expected as a result of the new rule are as follows: there will be guidance provided on the process to follow to determine if a criminal history will serve as a bar to registration. The public will benefit from a uniform, articulated objective process for discovering if it is worthwhile to consider seeking registration in light of a criminal history. No one is required to seek a preliminary evaluation letter. Therefore, there will be no fiscal impact upon persons required to comply with the section in that no one is required to comply with it. Since the new rule would have no fiscal impact on small or micro-business an Economic Impact Statement and Regulatory Flexibility Analysis are not required and are not provided.
Comments may be submitted to Cathy L. Hendricks, ASID/IIDA, Executive Director, Texas Board of Architectural Examiners, P.O. Box 12337, Austin, TX 78711-2337.
The new rule is proposed pursuant to §1051.202, Texas Occupations Code, which provides the Texas Board of Architectural Examiners with authority to promulgate rules to implement Chapter 1051, Texas Occupations Code. The rule is also proposed pursuant to Chapter 53, Texas Occupations Code, which specifies the procedures for consideration of criminal conduct in licensing or maintaining the licensure of professionals.
The proposed new rule does not affect any other statutes.
§5.36.Preliminary Evaluation of Criminal History.
(a) An Applicant, Candidate or a person enrolled or planning to enroll in an accredited interior design educational program may make a written request to the Board's executive director for a preliminary criminal history evaluation letter which states the person's eligibility for registration under §5.158 of this chapter (relating to Criminal Convictions).
(b) A person who requests a criminal history evaluation shall provide the following information:
(1) a statement describing the offenses for which the requestor has a criminal history;
(2) any court documents including, but not limited to, indictments, orders of deferred adjudication, judgments, probation records, and evidence of completion of probation, if applicable;
(3) the names and contact information of the parole or probation department, if any, to which the requestor reports; and
(4) the required fee for determining eligibility.
(c) Within 90 days after receiving a request which complies with subsection (b) of this section, the executive director shall issue a criminal history evaluation letter which states:
(1) a determination that a ground for ineligibility based upon criminal conduct does not exist; or
(2) a determination that the requestor is ineligible due to criminal conduct and a specific explanation of the basis for that determination, including the relationship between the conduct in question and the practice of Interior Design.
(d) For purposes of determining eligibility for registration, a record of conviction is conclusive evidence of guilt. The Board may not consider a conviction in determining eligibility for registration upon receipt of proof that the conviction or an order of probation with or without adjudication of guilt has been reversed or set aside.
(e) In the absence of evidence that was not disclosed by the requestor or reasonably available when a request for a criminal history evaluation was under consideration, the executive director's criminal history evaluation letter is a final determination regarding the requestor's eligibility for registration. If found to be ineligible for registration, a requestor may not apply for registration until one year after the date the letter is issued. A requestor who is determined to be ineligible may:
(1) submit a request for reconsideration of the determination of ineligibility based upon evidence that was not disclosed or reasonably available to the agency at the time the determination was made;
(2) submit a new request for an evaluation no sooner than one year after the date upon which the criminal history evaluation letter was issued; or
(3) request a hearing on the determination made in the executive director's criminal history evaluation letter. A hearing conducted pursuant to this section is subject to the Administrative Procedure Act, Chapter 2001, Government Code.
(f) The Board shall issue a final order on the determination made in the criminal history evaluation after consideration of a proposal for decision issued by an administrative law judge at the State Office of Administrative Hearings. The Board's final order must specify findings of fact and conclusions of law, stated separately, regarding the person's eligibility for registration in light of his or her criminal history record.
(g) A person who is found to be ineligible by a final order of the Board may not file another request for a criminal history evaluation or apply for registration until three years after the date of the Board's final order. However, a person may request reconsideration of the final order based upon evidence that was not disclosed or reasonably available to the Board at the time the final order was issued.
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 August 2, 2010.
TRD-201004205
Cathy L. Hendricks, RID, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: September 12, 2010
For further information, please call: (512) 305-9040
The Texas Board of Architectural Examiners proposes new §5.37, concerning Provisional Licensure. The new rule pertains to the provisional licensure of persons who have a criminal history but who are otherwise eligible for interior design registration. The rule creates a procedure for persons who have a criminal history to obtain a provisional license if they have not committed certain serious or violent offenses, an offense relating to the practice of landscape architecture, or any other offense within the past five (5) years. The provisional license would expire after six (6) months. The proposed rule specifies that a provisional registration may be revoked upon violation of laws enforced by the board or upon the commission of another criminal act. If a person successfully completes the provisional licensure period, he or she would receive an unrestricted certificate of registration. If the provisional registration is revoked, the person who held it may not seek registration for three (3) years. The rule implements House Bill 963 which was passed by the 81st Legislature.
Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, has determined that for the first five-year period the new rule is in effect, the new rule will have no significant fiscal impact upon state government and no fiscal impact on local government.
Ms. Hendricks also has determined that for the first five-year period the new rule is in effect the public benefits expected as a result of enforcing the new rule will be the guidance provided on the process for determining if a criminal history will serve as a bar to registration. The public will benefit from a uniform, articulated objective process for discovering if it is worthwhile to consider seeking registration in light of a criminal history. Since no one is required to seek a preliminary evaluation letter there would be no fiscal impact upon persons required to comply with the section in that no one is required to comply with it. The new rule will have no fiscal impact on small or micro-business. Therefore no Economic Impact Statement and Regulatory Flexibility Analysis are required.
Comments may be submitted to Cathy L. Hendricks, ASID/IIDA, Executive Director, Texas Board of Architectural Examiners, P.O. Box 12337, Austin, TX 78711-2337.
The new rule is proposed pursuant to §1051.202, Texas Occupations Code, which provides the Texas Board of Architectural Examiners with authority to promulgate rules to implement Chapter 1051, Texas Occupations Code. The rule is also proposed pursuant §1051.207, Texas Occupations Code, which requires the board to implement Chapter 53, Texas Occupations Code, relating to procedures for consideration of criminal conduct in licensing or maintaining the licensure of professionals.
The proposed new rule does not affect any other statutes.
§5.37.Provisional Licensure.
(a) The Board shall grant a Certificate of Registration or a provisional Certificate of Registration to a Candidate who has been convicted of an offense that:
(1) is not directly related to the Practice of Interior Design as determined by the executive director under §5.158 of this chapter (relating to Criminal Convictions);
(2) was committed earlier than five (5) years before the date the Candidate filed an application for registration;
(3) is not an offense listed in §3g, Article 42.12, Code of Criminal Procedure; and
(4) is not a sexually violent offense, as defined by Article 62.001, Code of Criminal Procedure.
(b) A provisional Certificate of Registration expires six (6) months after the date it is issued.
(c) A provisional Certificate of Registration may be Revoked for the following reasons:
(1) the provisional Registrant commits another offense during the 6-month provisional Registration period;
(2) the provisional Registrant's community supervision, mandatory supervision, or parole is Revoked; or
(3) the provisional Registrant violates a statute or rule enforced by the Board.
(d) A provisional Registrant who is subject to community supervision, mandatory supervision, or parole shall provide the Board name and contact information of the probation or parole department to which the provisional Registrant reports. The Board shall provide notice to the department upon the issuance of the provisional Certificate of Registration, as well as any terms, conditions or limitations upon the provisional Registrant's practice.
(e) Upon successful completion of the provisional Registration period, the Board shall issue a Certificate of Registration to the provisional Registrant. If a provisional Registrant's provisional Certificate is Revoked, the provisional Registrant is disqualified from receiving a Certificate of Registration and may not apply for a Certificate of Registration for a period of three (3) years from the date of Revocation.
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 August 2, 2010.
TRD-201004206
Cathy L. Hendricks, RID, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: September 12, 2010
For further information, please call: (512) 305-9040
The Texas Board of Architectural Examiners proposes an amendment to §5.113, concerning Required Use of Seal and Retention of Sealed Documents. The amendment requires a registered interior designer to include his or her name, registration number and a disclaimer to renderings issued for a purpose other than regulatory approval, permitting or construction. The disclaimer must appear on the document in a conspicuous place and state that it is not intended for approval, permitting or construction.
Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, has determined that for the first five-year period the amended rule is in effect, the amendment will have no significant fiscal impact upon state government and no fiscal impact on local government.
Ms. Hendricks also has determined that for the first five-year period the amended rule is in effect the public will benefit from having a clear statement of the registered interior designer's intent appear on documents which have not been developed to the extent in which they have adequate detail and direction for governmental approval and construction. The rule would prevent misunderstandings and potential misuse of documents which have not been developed into complete construction documents. There will be no fiscal impact upon persons who are required to comply with the rule. The amendment will have no fiscal impact on small or micro-business. Therefore no Economic Impact Statement and Regulatory Flexibility Analysis are required.
Comments may be submitted to Cathy L. Hendricks, ASID/IIDA, Executive Director, Texas Board of Architectural Examiners, P.O. Box 12337, Austin, TX 78711-2337.
The amendment is proposed pursuant to §1051.202, Texas Occupations Code, which provides the Texas Board of Architectural Examiners with authority to promulgate rules to regulate the practice of interior design.
The proposed amendment does not affect any other statutes.
§5.113.Required Use of Seal and Retention of Sealed Documents.
(a) Construction Documents:
(1) On every Construction Document prepared by a Registered Interior Designer or under a Registered Interior Designer's Supervision and Control, the Registered Interior Designer shall affix or cause the affixation of:
(A) the Registered Interior Designer's seal;
(B) the Registered Interior Designer's signature (across the face of the seal's image or directly under or adjacent to the seal's image); and
(C) the date of signing (including the month, day, and year) before the Construction Document is issued by or under the authority of the Registered Interior Designer.
(2) The Registered Interior Designer's seal and signature and the date must be affixed in a manner that will be clearly visible and legible on each copy of a Construction Document issued by or under the authority of the Registered Interior Designer. The Registered Interior Designer's signature and the date may not conceal or obscure the name or registration number on the seal.
(3) Construction Documents requiring a seal, signature, and date include the following:
(A) each sheet of drawings or electronic equivalent of a sheet of drawings;
(B) each specification: if a specification is included in a bound grouping of specifications that includes a table of contents or index listing each individual specification, the seal must be placed in at least one conspicuous location on the bound document; any individual specification sheet or electronic equivalent of a specification sheet that is issued separately must be sealed individually;
(C) each sheet or electronic equivalent of a sheet that identifies the project and provides a list of sealed Construction Documents, such as a title sheet, table of contents, or index; and
(D) each Interior Design drawing and specification that is part of an addenda, change order, construction change directive, or other Supplemental Document.
(b) Documents issued for purposes other than regulatory approval, permitting, and construction:
(1) An Interior Design drawing, Rendering, or specification issued by or under the authority of a Registered Interior Designer for a purpose other than regulatory approval, permitting, or construction shall include:
(A) the Registered Interior Designer's name;
(B) the date the document is issued (including the month, day, and year); and
(C) the following statement placed in a conspicuous location on the document: "Not for regulatory approval, permitting, or construction."
(2) Each Interior Design drawing and specification included in a Feasibility Study issued by or under the authority of a Registered Interior Designer must be sealed, signed, and dated in the manner described in subsection (a) of this section or labeled with the Registered Interior Designer's name and the date and clearly marked to indicate that it may not be used for regulatory approval, permitting, or construction in the manner described in this subsection.
(c) For a minimum of ten (10) years from the date of signature on each Construction Document sealed by or under the authority of a Registered Interior Designer, the sealing Registered Interior Designer shall be responsible for the maintenance of the sealed, signed, and dated original document or a copy of the document bearing the clearly visible and legible seal, signature, and date.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 2, 2010.
TRD-201004207
Cathy L. Hendricks, RID, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: September 12, 2010
For further information, please call: (512) 305-9040
The Texas Board of Architectural Examiners proposes an amendment to §5.158, concerning Criminal Convictions. The amendment pertains to the authority of the board to action against the continued or prospective registration of a person upon his or her criminal conviction. The amendment clarifies that the board may act against a registration for the commission of a crime which directly relates to the practice of interior design, a crime unrelated to the practice of interior design but which was committed within the past 5 years, or certain specified serious crimes involving violence, sexual offenses and minors. The rule is also amended to include provisional licensing as one of the actions the board may take against one who is convicted of these offenses. The amendment also makes technical amendments to create cross-references to the definitions of defined terms. The rule implements House Bill 963 which was passed by the 81st Legislature.
Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, has determined that for the first five-year period the amended rule is in effect, the amendment will have no significant fiscal impact upon state government and no fiscal impact on local government.
Ms. Hendricks also has determined that for the first five-year period the amended rule is in effect the public will benefit from having a rule which is in compliance with current law and which specifies a procedure for evaluating criminal convictions and determining the regulatory action to be taken upon conviction. There will likely be a fiscal impact upon persons required to comply with the section in that action may be taken against the license of one who has been convicted which may restrict or terminate the ability to practice as a registered interior designer. However, the restrictions imposed by the rule are mandated by the statute and there is no way for the rule to be crafted to minimize the fiscal impact upon those who have a criminal conviction without conflicting with the statute. The amendment is applicable to only individuals and will have no fiscal impact on small or micro-business. Therefore no Economic Impact Statement and Regulatory Flexibility Analysis are required.
Comments may be submitted to Cathy L. Hendricks, ASID/IIDA, Executive Director, Texas Board of Architectural Examiners, P.O. Box 12337, Austin, TX 78711-2337.
The amendment is proposed pursuant to §1051.202, Texas Occupations Code, which provides the Texas Board of Architectural Examiners with authority to promulgate rules to implement Chapter 1051, Texas Occupations Code. The rule is also proposed pursuant to §1051.207, Texas Occupations Code, which directs the board to adopt rules to implement Chapter 53, Texas Occupations Code, which specifies the procedures for consideration of criminal conduct in licensing or maintaining the licensure of professionals.
The proposed amendment does not affect any other statutes.
§5.158.Criminal Convictions.
(a) Pursuant to Chapter 53, Texas Occupations Code
and §2005.052, Texas Government Code, the Board may suspend or
revoke an existing certificate of registration, disqualify a person
from receiving a certificate of registration, issue a provisional
license subject to the terms and limitations of §5.37 of this
chapter (relating to Provisional Licensure), or deny to a person
the opportunity to be examined for a certificate of registration because
of the person's conviction for committing an offense
[of a crime] if:
(1) the offense [crime]
directly relates to the duties and responsibilities of a Registered
Interior Designer;
(2) the offense does not directly relate to the duties and responsibilities of a Registered Interior Designer and was committed within five (5) years before the date the person applied for registration as a Registered Interior Designer;
(3) the offense is listed in §3g, Article 42.12, Texas Code of Criminal Procedure; or
(4) the offense is a sexually violent offense, as defined by Article 62.001, Texas Code of Criminal Procedure.
(b) The following procedures will apply in the consideration of an application for registration as a Registered Interior Designer or in the consideration of a Registrant's criminal history:
(1) Each Applicant will be required to provide information
regarding the Applicant's criminal history as part of the application
process. Each Registrant will be required to report any criminal conviction
to the Board within thirty (30) days of the date the conviction is
entered by the court and to verify the status of the Registrant's
criminal history on each registration renewal form. An Applicant or
Registrant is not [shall not be] required to
report a conviction for a minor traffic offense.
(2) An Applicant or Registrant who has been convicted
for committing any offense shall [of any crime will be
required to] provide a summary of each conviction in sufficient
detail to allow the executive director to determine whether it appears
to directly relate to the duties and responsibilities of a Registered
Interior Designer.
(3) If the executive director determines the conviction might be directly related to the duties and responsibilities of a Registered Interior Designer, the Board's staff will obtain sufficient details regarding the conviction to allow the Board to determine the effect of the conviction on the Applicant's eligibility for registration or on the Registrant's fitness for continued registration.
(c) [(b)] In determining whether
a criminal conviction is directly related to the duties and responsibilities
of a Registered Interior Designer, the executive director and the
Board will consider the following:
(1) the nature and seriousness of the crime;
(2) the relationship of the crime to the purposes for requiring a license to practice Interior Design;
(3) the extent to which Interior Design registration might offer an opportunity to engage in further criminal activity of the same type as that in which the Applicant or Registrant 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 a Registered Interior Designer.
(d) [(c)] In addition to the
factors that may be considered under subsection
(c) [(b)]
of this section, the executive director and the Board shall consider
the following:
(1) the extent and nature of the Applicant's or Registrant's past criminal activity;
(2) the age of the Applicant or Registrant at the time the crime was committed and the amount of time that has elapsed since the Applicant's or Registrant's last criminal activity;
(3) the conduct and work activity of the Applicant or Registrant prior to and following the criminal activity;
(4) evidence of the Applicant's or Registrant's rehabilitation or rehabilitative effort;
(5) other evidence of the Applicant's or Registrant's present fitness to practice as a Registered Interior Designer, including letters of recommendation from law enforcement officials involved in the prosecution or incarceration of the Applicant or Registrant or other persons in contact with the Applicant or Registrant; and
(6) proof that the Applicant or Registrant has maintained steady employment and has supported his/her dependents and otherwise maintained a record of good conduct and has paid all outstanding court costs, supervision fees, fines, and restitution as may have been ordered.
(e) [(d)] Crimes directly related
to the duties and responsibilities of a Registered Interior Designer
include any crime that reflects a lack of fitness for professional
licensure or a disregard of the standards commonly upheld for the
professional practice of Interior Design, such as the following:
(1) criminal negligence;
(2) soliciting, offering, giving, or receiving any form of bribe;
(3) the unauthorized use of property, funds, or proprietary information belonging to a client or employer;
(4) acts relating to the malicious acquisition, use, or dissemination of confidential information related to Interior Design; and
(5) any intentional violation as an individual or as a consenting party of any provision of the Act.
(f) [(e)] The Board shall revoke
the certificate of registration of any Registrant who is convicted
of any felony if the felony conviction results in incarceration. The
Board also shall revoke the certificate of registration of any Registrant
whose felony probation, parole, or mandatory supervision is revoked.
(g) [(f)] If an Applicant is
incarcerated as the result of a felony conviction, the Board may not
approve the Applicant for registration during the period of incarceration.
If an Applicant's felony probation, parole, or mandatory supervision
is revoked, the Board may not approve the Applicant for registration
until the Applicant successfully completes the sentence imposed as
a result of the revocation.
(h) [(g)] If the Board takes
action against any Applicant or Registrant pursuant to this section,
the Board shall provide the Applicant or Registrant with the following
information in writing:
(1) the reason for rejecting the application or taking action against the Registrant's certificate of registration;
(2) notice that upon exhaustion of the administrative remedies provided by the Administrative Procedure Act, Chapter 2001, Government Code, an action may be filed in a district court of Travis County for review of the evidence presented to the Board and its decision. The person must begin the judicial review by filing a petition with the court within 30 days after the Board's decision is final; and
(3) the earliest date the person may appeal.
(i) [(h)] All proceedings pursuant
to this section shall be governed by the Administrative Procedure
Act, Chapter 2001, Government Code.
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 August 2, 2010.
TRD-201004208
Cathy L. Hendricks, RID, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: September 12, 2010
For further information, please call: (512) 305-9040
The Texas Board of Architectural Examiners proposes new §5.162, concerning Deferred Adjudication. The new rule is necessary to specify that a person who completes a term of deferred adjudication of a criminal charge which is later dropped would not be considered to have been convicted of a crime for purposes of board rules. The proposed rule creates an exception to allow consideration of a deferred adjudication if registration of the individual would pose a threat to the public and registration would create an opportunity for further criminal conduct. The rule also specifies that the board may take disciplinary action for a deferred and ultimately discharged criminal charge if the criminal offense in question is a violation of laws enforced by the board. The rule implements House Bill 2808 which was passed by the 81st Legislature.
Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, has determined that for the first five-year period the new rule is in effect, the new rule will have no significant fiscal impact upon state government and no fiscal impact on local government.
Ms. Hendricks also has determined that for the first five-year period the new rule is in effect the public will benefit from having a rule which is in compliance with current law and which clearly specifies that a person who receives a deferred adjudication will not have action taken against his or her interior design registration in most circumstances. There will usually be no fiscal impact upon persons who receive deferred adjudication. Under the rule, disciplinary action will not be taken against those who receive deferred adjudication except under circumstances in which they would have received disciplinary action even in the absence of the rule. Thus, there is no fiscal impact which would result from the adoption of the rule. The new rule is applicable only to individuals and will have no fiscal impact on small or micro-business. Therefore no Economic Impact Statement and Regulatory Flexibility Analysis are required.
Comments may be submitted to Cathy L. Hendricks, ASID/IIDA, Executive Director, Texas Board of Architectural Examiners, P.O. Box 12337, Austin, TX 78711-2337.
The new rule is proposed pursuant to §1051.202, Texas Occupations Code, which provides the Texas Board of Architectural Examiners with authority to promulgate rules to implement Chapter 1051, Texas Occupations Code. The rule is also proposed pursuant to §1051.207, Texas Occupations Code, which directs the board to adopt rules to implement Chapter 53, Texas Occupations Code, which specifies the procedures for consideration of criminal conduct in licensing or maintaining the licensure of professionals, including conduct for which deferred adjudication is granted.
The new rule does not affect any other statutes.
§5.162.Deferred Adjudication.
(a) For purposes of §5.37 and §5.158 of this chapter (relating to Provisional Licensure and Criminal Convictions), a person is not convicted for committing a criminal offense if:
(1) the person entered a plea of guilty or nolo contendere;
(2) the court deferred further proceedings without entering an adjudication of guilt and placed the person under the supervision of the court or an officer of the court; and
(3) at the conclusion of a period of supervision, the judge dismissed the proceedings and discharged the person.
(b) Notwithstanding subsection (a) of this section, the executive director may consider a person to have been convicted for committing a criminal offense upon a finding that:
(1) the person may pose a continued threat to the public; or
(2) registration would create an opportunity for the person to engage in the same type of criminal activity as that for which the person pled guilty or nolo contendere.
(c) If a person pleads guilty or nolo contendere to conduct which is a violation of a law enforced by the Board, regardless of whether adjudication is deferred, the Board may take disciplinary action.
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 August 2, 2010.
TRD-201004209
Cathy L. Hendricks, RID, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: September 12, 2010
For further information, please call: (512) 305-9040
CHAPTER 216. CONTINUING COMPETENCY
INTRODUCTION. The Texas Board of Nursing (Board) proposes amendments to §216.1 (relating to Definitions) and §216.3 (relating to Requirements). These proposed amendments are authorized under the Occupations Code §301.303 and §301.151 and are necessary to advance the Board's comprehensive approach to continuing competency in nursing.
The Board has studied and evaluated continuing competency methodologies and national and local initiatives relating to continuing competency since 2006. The Board first began evaluating and testing models of continuing competency after Senate Bill (SB) 617, effective September 1, 1997, was enacted by the 75th Texas Legislature. Senate Bill 617 authorized the Board to conduct pilot programs to evaluate the continuing competency of nurses in Texas. Pursuant to SB 617, the Board approved and funded six pilot studies, including: (i) evaluation of a mandatory competency evaluation program of an urban county hospital and the validity and reliability of a 360 degree performance appraisal system in an urban specialty hospital; (ii) delineation of competencies for nurses working in rural health care settings; (iii) the use of vignettes for targeted continuing education in psychiatric nursing; (iv) assessment of certification in ACLS and PALs as a valid indication of competence; (v) identification and assessment of competencies of nurses in long-term care; and (vi) development of reliable and validity information for assessing home health nurse competencies. Various recommendations resulted from these studies, including a recommendation from the Competency Advisory Committee that acceptable components of competency maintenance should not be limited solely to continuing education hours. The Board reported its findings and recommendations regarding continuing competency in a 2000 publication, Ensuring Professional Nursing Competency. Shortly thereafter, ongoing competency evaluation began receiving further national attention and review.
For example, the National Council of State Boards of Nursing (NCSBN) formed a special task force to survey over 20,000 licensed vocational nurses and 20,000 registered nurses with at least one year of practice experience to determine competencies that were required in their work environments. The NCSBN also compiled state-by-state information about continued competency processes using the APPLE criteria (administratively feasible, publicly credible, professionally acceptable, legally defensible, and economically feasible) for an analysis of best practices among states. Around the same time, the following groups in Texas began evaluating and testing competency models: The Alliance for Innovation in Nursing Education; North Texas Consortium School of Nursing; Texas Higher Education Coordinating Board Nursing Innovative Grant Program - Midwestern State University High Fidelity Clinical Simulation; and Texas Nurses Association Competency Task Force (Task Force). In February, 2006, these groups formed the Texas Competency Consortium to share information and coordinate competency development in the state of Texas.
The Task Force focused on two specific approaches to continuing competency: (i) whether competencies should be developed that are related to a nurse's specific role/practice in his or her work environment; or (ii) whether broad-based competencies for all nurses should be developed. The NCSBN also considered these approaches on a national level, opting to develop and test a core set of broad-based competencies for all nurses. Ultimately, this approach was also adopted by the Task Force. The Task Force spent five years evaluating and testing different approaches to continuing competency. In July, 2008, the Task Force issued Continuing Competency: Movement Toward Assurance in Nursing, in which the Task Force outlined its recommendations for continuing competency requirements in Texas. Specifically, the Task Force recommended allowing nurses to meet their continuing competency requirements through either the completion of 20 hours of continuing education in their area of practice or through national certification in their area of practice.
Although continuing competency has historically been demonstrated primarily through the completion of continuing education courses, the Board adopted rules in the August 14, 2009, issue of the Texas Register that authorized nurses to utilize other methods of demonstrating continuing competency, including the achievement, maintenance, or renewal of an approved national nursing certification in the nurse's area of practice or the completion of an academic course meeting certain, specified criteria. The rules also authorized the completion of continuing education courses, and although the Board had proposed that such courses relate to a nurse's area of practice, no such requirement was adopted at that time, primarily due to concerns about the effect of such a requirement upon non-traditional nursing occupations and non-practicing nurses. The Board did, however, reiterate its commitment to adopting an "area of practice" requirement for continuing education courses in the future. Further, the Board charged the Nursing Practice Advisory Committee and the Advisory Committee on Education (Committees) to study, develop, and recommend a rule regarding the demonstration of continuing competency through continuing education in a nurse's area of practice and to consider its effect upon non-traditional nursing occupations.
The Committees
The Nursing Practice Advisory Committee and the Advisory Committee on Education (Committees) convened on May 17, 2010, to consider the Board's charge. Initially, some Committee members expressed concern that an "area of practice" requirement for continuing education courses might be too limiting or restrictive for nurses in non-traditional nursing occupations, such as nursing education or medical supply sales. Following a lengthy discussion of this issue, however, the majority of the Committee members ultimately agreed that the Board's application of an "area of practice" requirement would not necessarily narrow the range of continuing education courses that a nurse could complete to satisfy his or her continuing competency requirements. Further, the majority of the Committee members felt that an "area of practice" requirement for continuing education courses would only require a reasonable connection between a nurse's area of practice and a particular continuing education course. The Committees also discussed the potentially subjective nature of a Board audit of continuing education courses in a nurse's area of practice. The members recognized, however, that the Board's existing audit and appeals process was sufficient to provide a nurse an opportunity to defend his or her choice of completing a particular continuing education course. Several members expressed their belief that the Board should establish a minimum standard for continuing education courses, and should not rely on individual nurses to determine appropriate coursework for themselves, as many nurses wait to complete their continuing education hours on the last day of the reporting period and do not take courses that enhance their skills or provide opportunity for professional growth, but instead take courses that are available on-line and are as convenient as possible. Collectively, the Committees agreed that it was important to move towards a comprehensive continuing competency standard in continuing education, and despite a few possible growing pains associated with new requirements, an "area of practice" requirement was an important step in establishing meaningful standards in continuing competency. At the conclusion of the Committee's discussions, the Committees voted to recommend the adoption of the proposed amendments to §216.1 and §216.3 to the Board. The Board considered the Committee's recommendations and the proposed amendments to §216.1 and §216.3 at its July, 2010, meeting, and approved the proposal of the amendments.
The proposed amendments to §216.1 and §216.3 are intended to supplement the rules that were adopted by the Board in August, 2009. The adopted rules allow a nurse to choose among three methods of demonstrating his or her continuing competency for each two-year licensing period. Under existing §216.3(a), a nurse may complete 20 contact hours of continuing education. Under existing §216.3(b), a nurse may achieve, maintain, or renew an approved national nursing certification in the nurse's area of practice. Finally, under existing §216.5, a nurse may attend an academic course that meets certain, prescribed criteria. The proposed amendments to §216.1 and §216.3 build upon this groundwork by requiring a nurse who chooses to complete continuing education courses to complete courses in his or her area of practice. While the Board recognizes that there is some benefit in continuing education courses that apply generally to all nursing practice, the Board has determined that there is more benefit in continuing education courses that apply to a nurse's specific area of practice. This is because a nurse is able to provide a better quality of care in the area of practice in which he or she is most knowledgeable. A nurse who enhances his or her expertise through practice specific continuing education courses is more likely to provide his or her patients with better care than a nurse who has not received the same specified training. For example, assume that a nurse who works in a cardiac unit completes a continuing education course relating to the use of technology in rhythm interpretations. When the nurse begins working in her cardiac unit later that week, her enhanced knowledge should better assist her in recognizing and interpreting variations in a patient's heart monitor readout. As a result, the nurse may be able to initiate medical interventions faster because she is able to recognize the subtle changes in the readout more quickly and accurately. In this way, the proposed amendments are anticipated to ensure a better quality of care for the public.
It should be noted in this example, however, that a nurse who works in a cardiac unit is not necessarily limited to such specialized continuing education courses under the proposed amendments. A cardiac nurse could complete continuing education courses covering a wider range of topics, provided that the courses are designed to enhance, enrich, and update the knowledge and skills she reasonably utilizes in her area of practice. Examples include courses related to patient assessment, kidney function, the healing environment, progressive care, diabetes, depression, medication administration, nutrition, the safety and efficacy of needless IV access, nurse/patient interaction, pain management, and infection control, just to name a few. A cardiac nurse must be knowledgeable and skilled in all types of issues that may affect her patient care. Each of these courses contain information and material that is reasonably designed to enhance a cardiac nurses's ability to identify, recognize, and react to such issues. As such, a cardiac nurse could complete any of these courses in order to demonstrate her continuing competency. Further, this example is not meant to limit the types of continuing education courses that a cardiac nurse could complete under the proposed amendments. Any continuing education course in which a cardiac nurse learns about new technology or treatment regimens that are relevant to her practice area or any course which is designed to update or enhance her clinical skills will meet the proposed requirements. The completion of such continuing education courses should result in a better quality of care for her patients because the information she receives as part of those continuing education courses directly relates to the issues she encounters regularly in her area of practice, and her skills and knowledge should better reflect a mastery of that information.
The Board anticipates that some nurses working in non-traditional nursing occupations, such as nursing administration, regulation, or education, may have questions about the kinds of continuing education courses that may relate to their specific area of practice. A continuing education course should incorporate and relate to the knowledge, skills, or activities performed or required by the nurse in his or her area of practice. A nursing educator, for example, must be knowledgeable and skilled in effectively teaching students about nursing practice. As such, a nurse educator could meet the proposed requirements by completing continuing education courses with general nursing applicability, such as courses in clinical assessment, medication administration, nursing documentation, and nursing laws and jurisprudence. A nurse educator could also complete more specialized continuing education courses, such as those related to patient advocacy, patient psychology, forensic nursing, medical coding and billing, or social work. Any course in which a nursing educator learns about new technology or treatment regimens or enhances his or her skills, so that he or she may then in turn teach and provide information regarding those regimens, treatments, and skills to his or her students, will meet the proposed requirements. The completion of such continuing education courses should result in a better quality of education for the nurse educator's students because the nurse educator has obtained new and enriching information that he or she may then pass on to his or her nursing students, which should result in more knowledgeable and better prepared nursing students.
The Board anticipates that many non-practicing nurses may also have concerns about the proposed requirements. Proposed amended §216.1(4) addresses those nurses who are no longer practicing nursing or who do not have a current area of practice but who maintain a current license. Proposed amended §216.1(4) also addresses volunteer retired nurses. Proposed amended §216.1(4) directs a nurse without a current area of practice to refer to his or her last area of practice or most recent area of practice in order to meet his or her continuing competency requirements For example, a nurse who has not practiced nursing for several years, but who last practiced nursing in a community health clinic, could meet her continuing competency requirements by completing continuing education courses related to community health. Again, the proposed requirements will not limit the nurse to only those courses specifically designed for community health practitioners. Under the proposed amendments, the nurse could choose any continuing education course that is designed to enrich her clinical skills or teach her about new treatment regimens or technology that she could reasonably utilize in a community health setting. Because a community health nurse must be familiar and skilled in a wide array of issues affecting her patients, a wide range of continuing education courses could satisfy these requirements. Further, many nurses who have not practiced nursing for a significant period of time seek to re-enter active nursing practice in their last or most recent area of practice. Completing continuing education courses that specifically relate to that area of practice serves only to bolster the nurse's competency in that area of practice, which allows the nurse to provide her patients with a more specialized and better quality of care. Finally, the proposed amendments do not prohibit a nurse from completing additional continuing education courses that may be of interest to the nurse. A nurse may complete as many continuing competency activities as he or she chooses, so long as the minimum continuing competency requirements set forth in the Board's rules are met. Thus, a nurse could complete a continuing education course that may not relate to his or her area of practice if the nurse was interested in that course. Although the completion of that course could not be utilized to meet a portion of the nurse's continuing competency requirements, the proposed amendments do not prevent the nurse from choosing to complete extra or additional continuing competency activities.
Section-by-Section Overview. The following is a section-by-section overview of the proposal.
Proposed amended §216.1(4) defines "area of practice" as any activity, assignment, or task in which the nurse utilized nursing knowledge, judgment, or skills during the licensure renewal cycle. Further, proposed amended §216.1(4) provides that, if a nurse does not have a current area of practice, the nurse may refer to his or her last area of practice or most recent area of practice. Proposed amended §216.3(a) provides that a nurse must meet either the requirements of §216.3(a) or (b). Further, proposed amended §216.3(a) provides that a nurse may choose to complete 20 contact hours of continuing education within the two years immediately preceding renewal of registration in his or her area of practice. Additionally, these hours shall be obtained by participation in programs approved by a credentialing agency recognized by the Board. Further, proposed amended §216.3(a) provides that a list of these agencies/organizations may be obtained from the Board's office or web site.
FISCAL NOTE. Katherine Thomas, Executive Director, has determined that for each year of the first five years the proposed amendments are in effect, there will be no additional fiscal implications for state or local government as a result of implementing the proposed amendments.
PUBLIC BENEFIT/COST NOTE. Ms. Thomas has also determined that for each year of the first five years the proposed amendments are in effect, there will be public benefits, and there will be potential costs for individuals required to comply with the proposal.
Anticipated Public Benefits. The anticipated public benefits will be the adoption of requirements that: (i) advance the Board's comprehensive approach to continuing competency in nursing, and (ii) ensure the protection of the public health, safety, and welfare through the demonstration of competent, quality nursing care.
The ever evolving landscape of medical care requires nurses to stay abreast of the most current changes in medical techniques, treatments, and technology. The proposed amendments are designed to assist nurses in maintaining and improving their knowledge, skills, and attitudes so that the public may continue to receive safe, nursing care. The proposed amendments are also intended to develop and maintain a nurse's expertise in his or her area of practice. Requiring a nurse to maintain competence in his or her area of practice is especially important because it ensures that the nursing skills necessary for that particular setting are continually developed and enriched. As a result, the nurse's patients directly benefit because the nurse is more knowledgeable and competent in his or her nursing practice. In this way, the proposed amendments seek to provide a higher quality of care in each area of nursing. The proposed amendments also provide flexibility to nurses. While the proposed amendments require continuing education courses to relate to a nurse's area of practice, the proposed amendments do not eliminate a nurse's ability to choose continuing education courses that compliment the nurse's personality, skill level, and learning style. Under the proposed amendments, nurses remain free to choose from a wide variety of continuing education courses related to their area of practice. Further, the proposed amendments do not prohibit a nurse from completing additional continuing education courses that may be of interest to the nurse. While only those continuing education courses that relate to the nurse's area of practice will satisfy the nurse's continuing competency requirements, a nurse remains free to complete as many continuing education activities as he or she chooses.
The proposed amendments also permit nurses who are not currently practicing nursing or who do not have a current area of practice and volunteer retired nurses to complete continuing education courses in their last or most recent area of practice. Many nurses who have not practiced nursing for a significant period of time seek to re-enter active nursing practice in their last or most recent area of practice. It is especially important for such nurses to re-familiarize themselves with the most current nursing practices. Requiring such nurses to complete continuing education courses that relate to their last or most recent area of practice is one way to ensure that the nurse is competent to practice nursing in that area of practice, which ultimately promotes a better quality of care for the public.
Potential Costs for Individuals Required to Comply with the Proposal.
Nurses who are required to comply with the proposed amendments to §216.3(a) may incur compliance costs. Pursuant to proposed amended §216.3(a), a nurse may meet his or her continuing competency requirements by completing 20 hours of continuing education in his or her area of practice within the two years immediately preceding renewal of registration. For nurses who choose to meet their continuing competency requirements by complying with proposed amended §216.3(a), the probable economic costs of compliance are estimated to range between $0 per credit hour and $20 per credit hour, with an average of $6.40 per credit hour. These estimated costs are based upon the following considerations. The Board collected a sampling of continuing education courses offered by various continuing education providers. The Board then compared the total cost of each course with the cost per credit hour. It should be noted that several continuing education providers offer free continuing education courses. Of the continuing education courses surveyed that were not free, the credit hours ranged from one hour to 35 credit hours and their total associated costs ranged from $5 to $90. Based on the continuing education courses surveyed, the range of cost per credit hour is $0 to $20, with an average cost per hour of $6.40. These cost estimates include contact hour estimates for a variety of continuing education course subjects, including oncology and cancer courses, cardiovascular, cardiac, and heart disease courses, critical care courses, respiratory care courses, advanced assessment courses, bio-terrorism courses, nurse practitioner review courses, wound care courses, and family nurse practitioner courses.
Volunteer retired nurses may also incur costs as a result of compliance with proposed amended §216.3(a). Although the Board's existing rules already require volunteer retired nurses to complete 10 hours of continuing education during each biennium, proposed amended §216.3(a) will require those continuing education courses to relate to the nurse's last or most recent area of practice. The probable estimated costs of completing continuing education courses in compliance with proposed amended §216.3(a) have already been addressed in the foregoing paragraphs of this Public Benefit/Cost note. The probable estimated costs for volunteer retired nurses to comply with proposed amended §216.3(a) are estimated to be similar to the estimated costs previously outlined in this Public Benefit/Cost note. Further, the Board anticipates that the probable estimated costs may even be somewhat reduced because volunteer retired nurses must only complete 10 hours of continuing education each biennium, as opposed to 20 hours of continuing education.
It is anticipated that nurses who are subject to proposed amended §216.3(a) will incur the aforementioned estimated costs of compliance every two years. There are, however, several options available to nurses to defray some of these estimated costs of compliance. First, several continuing education providers offer continuing education courses at no cost. The proposed amendments do not limit the number of free continuing education courses that a nurse may complete. A nurse may take as many free continuing education courses as he or she chooses or is able, provided that the courses meet the applicable requirements of the proposal and existing Board rules, such as being approved by a credentialing agency approved by the Board and being in the nurse's area of practice. Second, many continuing education courses are offered online so nurses may complete the courses during non-business hours, preventing a nurse from having to miss work to complete a course. Third, existing §216.5 permits a nurse to meet the proposed requirements of §216.3(a) by attending and passing an academic course that is either within the framework of a curriculum that leads to an academic degree in nursing or is relevant to the nursing practice. The Board permits one qualifying academic semester hour to satisfy 15 contact hours of required continuing education. As a result, some nurses may be able to satisfy all or a portion of their continuing competency requirements under proposed amended §216.3(a) while simultaneously furthering their nursing education. This additional option provides potential cost savings to these nurses. Additionally, existing §216.8 provides an exemption from the continuing education requirements of proposed amended §216.3(a) for nurses licensed by examination and endorsement for the issuance of an initial Texas license and for the immediate renewal period following Texas licensure. This option eliminates the costs of continuing competency compliance for the first renewal period following initial Texas licensure for these nurses.
Finally, the Board's existing rules permit a nurse to meet his or her continuing competency requirements by completing 20 hours of continuing education. The proposed amendments only require that those continuing education courses relate to a nurse's area of practice. As such, the Board does not anticipate that the proposed amendments will substantially increase the current compliance costs associated with existing §216.3(a). The Board anticipates that many nurses are currently incurring similar costs to those outlined in this Public Benefit/Cost note for the completion of continuing education courses. The Board does not anticipate that the cost of a continuing education course that is related to a specific area of practice will be significantly greater than the cost of a continuing education course that is not related to a specific area of practice. As such, the Board does not expect a particular nurse's compliance costs to significantly increase as a result of the proposed amendments. Further, each nurse is free to choose the most economical continuing education course available, so long as the course reasonably relates to the nurse's area of practice and is approved by a credentialing agency approved by the Board. Any other costs to comply with the proposed amendments result from the enactment of the Occupations Code Chapter 301 and are not a result of the adoption, enforcement, or administration of the proposal.
ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS FOR SMALL AND MICRO BUSINESSES. As required by the Government Code §2006.002(c) and (f), the Board has determined that the proposed amendments will not have an adverse economic effect on any individual, Board regulated entity, or other entity required to comply with the proposed amendments because no individual, Board regulated entity, or other entity required to comply with the proposed amendments meets the definition of a small or micro business under the Government Code §2006.001(1) or §2006.001(2). The Government Code §2006.001(1) defines a micro business as a legal entity, including a corporation, partnership, or sole proprietorship that: (i) is formed for the purpose of making a profit; (ii) is independently owned and operated; and (iii) has not more than 20 employees. The Government Code §2006.001(2) defines a small business as a legal entity, including a corporation, partnership, or sole proprietorship, that: (i) is formed for the purpose of making a profit; (ii) is independently owned and operated; and (iii) has fewer than 100 employees or less than $6 million in annual gross receipts. Each of the elements in §2006.001(1) and §2006.001(2) must be met in order for an entity to qualify as a micro business or small business. The only entities subject to the proposed amendments are individual nurses. Because individual nurses are not independently owned and operated legal entities that are formed for the purpose of making a profit, no individual nurse qualifies as a micro business or small business under the Government Code §2006.001(1) or §2006.001(2). Therefore, in accordance with the Government Code §2006.002(c) and (f), the Board is not required to prepare a regulatory flexibility analysis.
TAKINGS IMPACT ASSESSMENT. The Board has determined that no private real property interests are affected by this proposal and that this proposal does not restrict or limit an owner's right to property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking or require a takings impact assessment under the Government Code §2007.043.
REQUEST FOR PUBLIC COMMENT. To be considered, written comments on the proposal or any request for a public hearing must be submitted no later than 5:00 p.m. on September 12, 2010, 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. An additional copy of the comments on the proposal or any request for a public hearing must be simultaneously submitted to Melinda Hester, Nursing Practice Consultant, Texas Board of Nursing, 333 Guadalupe, Suite 3-460, Austin, Texas 78701, or by e-mail to melinda.hester@bon.state.tx.us, or faxed to (512) 305-8101. If a hearing is held, written and oral comments presented at the hearing will be considered.
STATUTORY AUTHORITY. The amendments are proposed under the Occupations Code §301.303 and §301.151. Section 301.303(a) authorizes the Board to recognize, prepare, or implement continuing competency programs for license holders under Chapter 301 and to require participation in continuing competency programs as a condition of renewal of a license. The programs may allow a license holder to demonstrate competency through various methods, including completion of targeted continuing education programs and consideration of a license holder's professional portfolio, including certifications held by the license holder. Section 301.303(b) provides that the Board may not require participation in more than a total of 20 hours of continuing education in a two-year licensing period. Section 301.303(c) authorizes the Board by rule to establish a system for the approval of programs and providers of continuing education if the Board requires participation in continuing education programs as a condition of license renewal. Section 301.303(e) authorizes the Board to adopt other rules as necessary to implement §301.303. Section 301.303(f) states that the Board may assess each program and provider under §301.303 a fee in an amount that is reasonable and necessary to defray the costs incurred in approving programs and providers. Section 301.303(g) authorizes the Board by rule to establish guidelines for targeted continuing education required under Chapter 301. The rules adopted under §301.303(g) must address: (i) the nurses who are required to complete the targeted continuing education program; (ii) the type of courses that satisfy the targeted continuing education requirement; (iii) the time in which a nurse is required to complete the targeted continuing education; (iv) the frequency with which a nurse is required to meet the targeted continuing education requirement; and (v) any other requirement considered necessary by the Board. Section 301.151 authorizes the Board to adopt and enforce rules consistent with Chapter 301 and necessary to: (i) perform its duties and conduct proceedings before the Board; (ii) regulate the practice of professional nursing and vocational nursing; (iii) establish standards of professional conduct for license holders under this chapter; and (iv) determine whether an act constitutes the practice of professional nursing or vocational nursing.
CROSS REFERENCE TO STATUTE. The following statutes are affected by this proposal: Rule §216.1 and §216.3, Statute §301.303 and §301.151.
§216.1.Definitions.
The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise:
(1) - (3) (No change.)
(4) Area of Practice--Any activity, assignment, or task in which the nurse utilized nursing knowledge, judgment, or skills during the licensure renewal cycle. If a nurse does not have a current area of practice, the nurse may refer to his or her last area of practice or most recent area of practice.
(5) - (18) (No change.)
§216.3.Requirements.
(a) A nurse must meet either the requirements of this subsection or subsection (b) of this section. A nurse may choose to complete 20 contact hours of continuing education within the two years immediately preceding renewal of registration in his or her area of practice. These hours shall be obtained by participation in programs approved by a credentialing agency recognized by the board. A list of these agencies/organizations may be obtained from the board's office or web site.
(b) - (e) (No change.)
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on July 30, 2010.
TRD-201004156
Jena Abel
Assistant General Counsel
Texas Board of Nursing
Earliest possible date of adoption: September 12, 2010
For further information, please call: (512) 305-6822
CHAPTER 571. LICENSING
SUBCHAPTER A. EXAMINATION
The Texas Board of Veterinary Medical Examiners proposes an amendment to §571.3, concerning Eligibility for Examination and Licensure.
The amendment to §571.3 establishes that the examination score for the Texas State Board Licensing Examination (SBE) is valid for one year past the date of the examination. The amendment also clarifies that a license application is not complete until the completion of any required terms and conditions as set forth by Board order regarding the application for the SBE is received by the Board.
Dewey E. Helmcamp III, Executive Director, has determined that for each year of the first five years that the amendment as proposed is in effect the anticipated public benefit as a result of enforcing the proposal will be to ensure the completion of any required terms and conditions as set forth by a Board order for the application for examination prior to sitting for the SBE. An additional public benefit will be to ensure the examination is within a reasonable time of licensure.
Mr. Helmcamp has also determined that for each year of the first five years the rule is in effect, there will be no fiscal implication for the state and no fiscal implication for local government as a result of enforcing or administering the amendment to the rule as proposed. Mr. Helmcamp has also determined that the amendment to the rule will have no local employment impact.
Mr. Helmcamp has also determined there will be no direct adverse effect on small businesses or micro-businesses as a result of enforcing the amendment to the rule as proposed. Mr. Helmcamp has further determined that there are no economic costs to persons required to comply with the amendment to the rule as proposed.
The Texas Board of Veterinary Medical Examiners invites comments on the proposed amendment to the rule from any member of the public. A written statement should be mailed or delivered to Loris Jones, Texas Board of Veterinary Medical Examiners, 333 Guadalupe, Ste. 3-810, Austin, Texas 78701-3942, by facsimile (FAX) to (512) 305-7574, or by e-mail vet.board@tbvme.state.tx.us. Comments will be accepted for 30 days following publication in the Texas Register.
The amendment is proposed under the authority of the Veterinary Licensing Act, Occupations Code, §801.151(a) which states that the Board may adopt rules necessary to administer the chapter.
No other statutes, articles or codes are affected by the proposal.
§571.3.Eligibility for Examination and Licensure.
(a) Definitions. The following words and terms, when used in this chapter, have the following meaning:
(1) Board--the Texas Board of Veterinary Medical Examiners.
(2) Locally derived scaled score--the equivalent of the criterion referenced passing point for the national examination or the NAVLE.
(3) National Board of Veterinary Medical Examiners (NBVME)--the organization responsible for producing, administering and scoring the NAVLE.
(4) National examination--the examination in existence and effective prior to the inauguration date of the NAVLE and which consists of the national board examination (NBE) and the clinical competency test (CCT).
(5) North American Veterinary Licensing Examination (NAVLE)--the examination which replaced the national examination in the year 2000.
(6) Passing score--an examination score of at least 75 percent on the national examination and NAVLE which is based on a locally derived scaled score, and an examination score of at least 85 percent on the SBE. The examination score on the SBE is valid for one year past the date of the examination.
(7) Testing window--a period of consecutive days of the year specified by NBVME when qualified candidates can sit for the NAVLE.
(8) Texas State Board Licensing Examination (SBE)--the state examination developed and administered by the Board.
(b) Qualifications of Licensees.
(1) To be eligible for licensure, an applicant must present satisfactory proof to the Board that the applicant:
(A) is at least 18 years of age;
(B) has obtained at least a passing score on:
(i) the NAVLE if an applicant sits for that examination subsequent to its inauguration date; or
(ii) the national examination if an applicant sat for that examination prior to the inauguration date of the NAVLE; and
(iii) the SBE; and.
(C) is a graduate of a school or college of veterinary medicine that is approved by the Board and accredited by the Council on Education of the American Veterinary Medical Association (AVMA). Applicants who are graduates of a school or college of veterinary medicine not accredited by the Council on Education of the AVMA are eligible provided that the applicant presents satisfactory proof to the Board that the applicant is a graduate of a school or college of veterinary medicine and possesses an Educational Commission for Foreign Veterinary Graduates (ECFVG) Certificate or a Program for Assessment of Veterinary Education Equivalence (PAVE) Certificate. The Board may refuse to issue a license to an applicant who meets the qualification criteria but is otherwise disqualified as provided in the Texas Occupations Code, §801.401.
(2) An applicant may petition the Board in writing for an exception to paragraph (1)(B)(i) or (ii) of this subsection. In deciding whether to grant the petition, the Board may consider:
(A) the availability of the national examination or NAVLE at the time the petitioner originally applied for licensure;
(B) the number of years the petitioner has been in active practice;
(C) petitioner's license status and standing in other jurisdictions;
(D) petitioner's status as a diplomate in an AVMA recognized veterinary specialty; and
(E) any other factors that may be related to petitioner's request for an exception.
(3) As a condition of granting an exception under paragraph (2) of this subsection, the Board may impose additional requirements that are reasonably necessary to assure that the petitioner is competent to practice veterinary medicine in Texas.
(c) Application for the SBE.
(1) The applicant for the SBE shall apply on the appropriate form furnished by the Board.
(2) The completed application, including the completion of any terms and conditions as set forth by a Board order and the payment of appropriate fees, must be received at the Board offices no later than 45 days prior to the date of the SBE examination for which the applicant desires to sit.
(d) Licensing Examination
(1) Eligibility
(A) An applicant may sit for the SBE provided that the requirements of subsection (c) of this section have been met and the applicant is a graduate of:
(i) an approved and accredited veterinary medical school or college, as defined in subsection (b)(1)(C) of this section; or
(ii) a veterinary medical school or college not approved and accredited, but who has obtained an ECFVG Certificate or a PAVE Certificate.
(B) An applicant may sit for the NAVLE provided that the requirements of subsection (c) of this section have been met and the applicant is a graduate of:
(i) an approved and accredited veterinary medical school or college, as defined in subsection (b)(1)(C) of this section; or
(ii) a veterinary medical school or college not approved and accredited, but who is enrolled in the ECFVG or PAVE certification program, and meets the requirements of subparagraph (C) of this paragraph, if applicable.
(C) When applying for the NAVLE, an applicant who is a graduate of a veterinary medical school or college not approved and accredited, and is enrolled in the ECFVG or PAVE certification program, shall submit proof that the applicant passed all English language proficiency tests required by the certification program of choice and must have completed all other requirements of each program to be considered eligible to apply for the NAVLE.
(D) A person must first take and pass the national examination or the NAVLE in order to sit for the SBE.
(2) Eligibility Prior to Graduation. Except as provided in subparagraph (C)(ii) of this paragraph, an applicant who has not graduated from veterinary medical school may sit for examinations provided the following conditions have been met:
(A) To sit for the SBE, an applicant must be enrolled in an approved and accredited veterinary medical school or college as defined in subsection (b)(1)(C) of this section and must obtain a document from the dean of the school or college from which the applicant expects to graduate certifying that the applicant is within 60 days of completion of a veterinary college program and is expected to graduate.
(B) An applicant enrolled in a joint or combined degree program who has completed the applicant's veterinary medical education but has not received a diploma or transcript certifying award of the applicant's DVM degree, must obtain a letter from the dean of the school or college of veterinary medicine stating the applicant did in fact graduate before the applicant is eligible to sit for the SBE or the NAVLE.
(C) To apply for the NAVLE, a candidate shall, at the time an application is submitted, demonstrate that the candidate is:
(i) a student enrolled in an approved and accredited school or college of veterinary medicine as defined in subsection (b)(1)(C) of this section, and who has submitted a document from the dean of the school or college from which the student expects to graduate, certifying that the applicant is within eight months of the student's expected graduation date and is expected to graduate, and has demonstrated compliance with all of the NBVME's testing requirements for the NAVLE; or
(ii) a graduate of a school or college of veterinary medicine not approved and accredited, who is enrolled in the ECFVG or PAVE certification program, and shall submit proof that the applicant passed all English language proficiency tests required by the certification program of choice and must have completed all other requirements of each program.
(3) Results of Examinations. The Board will accept certified scores issued by the:
(A) American Association of Veterinary State Boards (AAVSB), or its successor, for the national examination; and
(B) the official reporting service for the NAVLE.
(4) Score Information. All requests for information on examination scores shall be processed as follows:
(A) All requests from other state licensing boards for an applicant's raw scores on the national examination or NAVLE will be referred to the official reporting service for those examinations.
(B) All requests from other state licensing boards for an applicant's locally derived scale scores on the national examination or NAVLE will be based upon national data submitted by the official reporting service for those examinations.
(C) Upon written request of an applicant, the Board will certify the score of the SBE to another state licensing board. Upon written request of an applicant, the Board will make national examination or NAVLE scores available for informational purposes only to another state licensing board but will not certify the scores.
(5) Release of Examination Grades. The Board will provide examination grades only to an applicant or another state licensing board upon the written request of an applicant.
(6) Request for Analysis of Failed Examination. Any applicant who has failed the SBE may submit a written request, within 30 days of the release of the examination results, for an analysis of the applicant's examination. The Board will not provide an analysis to an applicant who has not submitted to the Board proof of graduation from an approved and accredited school or college of veterinary medicine. An applicant who submits proof of graduation from an approved and accredited school or college of veterinary medicine after release of the examination results may request an analysis of the applicant's examination within 30 days of the date the Board receives proof of graduation. An analysis provided by the Board under this provision will be in writing. The Board will not disclose any actual examination documents or materials.
(7) Appearance for Examinations
(A) An applicant for the SBE must submit a new application and the current fees prior to admission for examination if the applicant:
(i) does not appear for the scheduled examination; or
(ii) fails to attain a passing score on the scheduled examination.
(B) The Board shall refund the examination fee for the SBE if the applicant:
(i) provides notice of not less than fourteen (14) days before the date of the examination, that the applicant is unable to take the examination; or
(ii) is unable to take the examination because of an emergency.
(C) For purposes of subparagraph (B)(ii) of this paragraph, an "emergency" shall be defined as any immediate, unforeseen event that would render a person unable or unfit to take an examination, and may include a death in the family or an injury or other event that could be reasonably considered to be an emergency. Matters of inconvenience or failure to satisfy an examination prerequisite, shall not be considered an emergency.
(D) A candidate for the NAVLE must take the examination within the testing window in which the candidate is authorized for testing.
(i) A candidate who fails to take the examination within the appropriate testing window shall forfeit the candidate's fees.
(ii) A candidate who fails to take the examination within the appropriate testing window and desires to take the examination during a subsequent testing window must have the candidate's eligibility reconfirmed by the Board and the candidate must pay new fees.
(iii) If a candidate fails to attain a passing score on the NAVLE, the candidate must submit a new application and the current fees in accordance with this section, except that, if a candidate fails to pass the fall NAVLE, the Board will consider the candidate approved to retake the NAVLE during the following spring testing window. In that case, the candidate must submit a new NAVLE application to the NBVME and pay the NBVME's examination fee.
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 August 2, 2010.
TRD-201004187
Loris Jones
Executive Assistant
Texas Board of Veterinary Medical Examiners
Earliest possible date of adoption: September 12, 2010
For further information, please call: (512) 305-7563
SUBCHAPTER G. OTHER PROVISIONS
The Texas Board of Veterinary Medical Examiners proposes an amendment to §573.65, concerning Definitions.
The amendment to §573.65 defines Sedation, Anesthesia, Local anesthesia and Topical anesthesia.
Dewey E. Helmcamp III, Executive Director, has determined that for each year of the first five years that the amendment as proposed is in effect the anticipated public benefit as a result of enforcing the proposal will be to provide greater clarification to the general public and licensees as to what these terms are defined as when they are used in other rules promulgated by the Board.
Mr. Helmcamp has also determined that for each year of the first five years the rule is in effect, there will be no fiscal implication for the state and no fiscal implication for local government as a result of enforcing or administering the amendment to the rule as proposed. Mr. Helmcamp has also determined that the amendment to the rule will have no local employment impact.
Mr. Helmcamp has also determined there will be a no direct adverse effect on small businesses or micro-businesses as a result of enforcing the amendment to the rule as proposed. Mr. Helmcamp has further determined that there are no economic costs to persons required to comply with the amendment to the rule as proposed.
The Texas Board of Veterinary Medical Examiners invites comments on the proposed amendment to the rule from any member of the public. A written statement should be mailed or delivered to Loris Jones, Texas Board of Veterinary Medical Examiners, 333 Guadalupe, Ste. 3-810, Austin, Texas 78701-3942, by facsimile (FAX) to (512) 305-7574, or by e-mail vet.board@tbvme.state.tx.us. Comments will be accepted for 30 days following publication in the Texas Register.
The amendment is proposed under the authority of the Veterinary Licensing Act, Occupations Code, §801.151(a) which states that the Board may adopt rules necessary to administer the chapter, as well as §801.151(b) which states "the Board may adopt rules of professional conduct appropriate to establish and maintain a high standard of integrity, skills, and practice in the veterinary medical profession."
No other statutes, articles or codes are affected by the proposal.
§573.65.Definitions.
The following words and terms, when used in the Veterinary Licensing Act (Chapter 801, Texas Occupations Code) or the Rules of the Board (Texas Administrative Code, Title 22, Part 24, Chapters 571 - 577) shall have the following meanings, unless the context clearly indicates otherwise:
(1) Accepted livestock management practices--those practices involving animals raised or produced primarily for food, fiber, or other products for human consumption, and may include the following:
(A) branding, tattooing, ear tags or identifying marks of any kind;
(B) tail docking, except cosmetic tail docking that is performed for appearance purposes only;
(C) earmarking;
(D) routine dehorning, except cosmetic dehorning that reshapes or alters the poll area for appearance purposes;
(E) castration;
(F) non-surgical assistance with birthing;
(G) implantation with approved implant products;
(H) administration of a biologic, except where restricted by law to administration by a veterinarian, and not including deworming by use of stomach tubing;
(I) artificial insemination;
(J) shoeing and trimming hooves; and
(K) application or administration of parasiticides, except where restricted by law.
(2) Designated caretaker--a person to whom the owner of an animal has given specific authority to care for the animal, and who has not been designated, by using the pretext of being a designated caretaker, to circumvent the Veterinary Licensing Act (Chapter 801, Occupations Code) by engaging in any aspect of the practice of veterinary medicine (including alternate therapies). A designated caretaker who treats an animal for a condition that the animal was known or suspected of having prior to the person being named a designated caretaker, is presumed to be attempting to circumvent the Veterinary Licensing Act unless the designated caretaker is following the instruction of a veterinarian and is under the appropriate level of supervision per board rules. In this situation, the designated caretaker may present evidence to rebut the presumption.
(3) Food production animals--any mammalians, poultry, fowl, fish or other animals that are raised primarily for human food consumption.
(4) Biologic--any serum, vaccine, antitoxin, or antigen used in the prevention or treatment of disease.
(5) Pregnancy testing--the diagnosis of the physical condition of pregnancy by any method other than the gross visual observation of the animal.
(6) Invasive dentistry or invasive dental procedures--exposing of the dental pulp, or performing extractions.
(7) Sedation--a minimally depressed level of consciousness that retains the patient's ability to independently and continuously maintain an airway and respond appropriately to physical stimulation, and that is produced by a pharmacologic method. In accordance with this particular definition, the drugs and/or techniques used should carry a margin of safety wide enough to render unintended loss of consciousness unlikely. Further, patients whose only response is reflex withdrawal from repeated painful stimuli would not be considered to be in a state of sedation.
(8) Anesthesia--an induced state of unconsciousness accompanied by partial or complete loss of normal protective reflexes in all or part of the body, including an inability to respond purposefully to physical stimulation, and is produced by a pharmacological method. One example includes the patient's inability to independently maintain an airway. The use of local or topical anesthesia on the patient is included in this definition for the purposes of the Board Rules.
(9) Local anesthesia--the elimination of sensations, especially pain, in one part of the body by the regional injection of a drug.
(10) Topical anesthesia--the elimination of sensations, especially pain, in one part of the body by the topical application of a drug.
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 August 2, 2010.
TRD-201004188
Loris Jones
Executive Assistant
Texas Board of Veterinary Medical Examiners
Earliest possible date of adoption: September 12, 2010
For further information, please call: (512) 305-7563
CHAPTER 623. REGISTRATION AND CERTIFICATION
(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Department of Licensing and Regulation or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin, Texas.)
The Texas Department of Licensing and Regulation ("Department") proposes the repeal of existing rules at 22 Texas Administrative Code ("TAC") Chapter 623, §§623.6 - 623.10, regarding Property Tax Professionals. The Department in a separate rulemaking action is proposing rules at 16 TAC Chapter 94 that will replace the rules affected by the repeal. This repeal will take effect January 1, 2011.
House Bill 2447 ("HB 2447"), 81st Legislature, Regular Session, 2009, transferred the regulatory authority over the Property Tax Professional program ("PTP Program") from the Board of Tax Professional Examiners ("BTPE") to the Department. At the completion of this transfer, the previous board rules were repealed and replaced with rules under the authority of the Texas Occupations Code with the exception of the classification rules for registrants under 22 TAC Chapter 623, §§623.6 - 623.10. New classification standards were postponed for the completion of a Department-sponsored Education Summit open to industry participants and the public for input on the standards and improvement to them.
The repeal of the current rules allows for new rules to be adopted which consolidate all standards governing registrants under the Texas Occupations Code. It furthers the Department's statutory charge to create classification standards for registrants under Texas Occupations Code, §1151.103. The proposed repeal was recommended by the Tax Professional Advisory Committee at its meeting on July 6, 2010.
William H. Kuntz, Jr., Executive Director, has determined that for the first five-year period the proposed repeal is in effect, there will be no direct cost to state or local government as a result of enforcing or administering the repeal.
Mr. Kuntz also has determined that for each year of the first five-year period the proposed repeal is in effect, the public benefit will be enhanced public protection by utilizing standards that best prepare uncertified registrants for potential assignments.
There is no anticipated adverse economic effect on small or micro-businesses or to persons who are required to comply with the proposed repeal.
Since the agency has determined that the proposed repeal will have no adverse economic effect on small or micro-businesses, preparation of an Economic Impact Statement and a Regulatory Flexibility Analysis, as detailed under Texas Government Code §2006.002, is not required.
Comments on the proposal may be submitted by mail to Caroline Jackson, Legal Assistant, General Counsel's Office, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711, or by facsimile to (512) 475-3032, or electronically to erule.comments@license.state.tx.us. The deadline for comments is 30 days after publication in the Texas Register.
The repeal is proposed under the authority of the Occupations Code, Chapters 51 and 1151, which authorize the Texas Commission of Licensing and Regulation ("Commission"), the Department's governing body, to repeal and adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.
The statutory provisions affected by the proposed repeal are those set forth in Texas Occupations Code, Chapters 51 and 1511. No other statutes, articles, or codes are affected by the repeal.
§623.6.Classification of Registration.
§623.7.Field of Work.
§623.8.Qualifications for Certification as Registered Professional Appraiser (RPA).
§623.9.Qualifications for Certification as Registered Texas Assessor/Collector (RTA).
§623.10.Qualifications for Certification as Registered Texas Collector (RTC).
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 August 2, 2010.
TRD-201004227
William H. Kuntz, Jr.
Executive Director, Texas Department of Licensing and Regulation
Board of Tax Professional Examiners
Earliest possible date of adoption: September 12, 2010
For further information, please call: (512) 463-7348