Adopted Sections
An agency may take final action on a section 30 days after a proposal has been 
published in the Texas Register. The section becomes effective 20 days after the 
agency files the correct document with the Texas Register, unless a later date 
is specified or unless a federal statute or regulation requires implementation 
of the action on shorter notice.
If an agency adopts the section without any changes to the proposed text, only 
the preamble of the notice and statement of legal authority will be published. 
If an agency adopts the section with changes to the proposed text, the proposal 
will be republished with the changes.
TITLE 1. ADMINISTRATION
Part IV. Office of the Secretary of State
Chapter 81. Elections
Political Parties
1 TAC sec.sec.81.100-81.133
The Office of the Secretary of State adopts the repeal of sec.sec.81.100-81.133, 
concerning elections, without changes to the proposed text as published in the 
September 20, 1991, issue of the Texas Register (16 TexReg 1569).
The repeals regard the financing of the 1992 primary elections with state funds, 
including the determination of necessary and proper expenses relating to the 
proper conduct of the primary elections by party officials and the procedures 
for requesting reimbursement by the parties for such expenses.
The repeals are adopted under the Texas Election Code,  sec.31.003 and sec.173. 
006, which provides the Office of the Secretary of State with the authority to 
obtain and maintain uniformity in the application, interpretation, and operation 
of provisions under the Texas Election Code and other election laws, and in 
performing such duties, to prepare detailed and comprehensive written directives 
and instructions based on such laws, and to adopt rules consistent with the 
Election Code that reduce the cost of the primary elections or facilitate the 
holding of the elections within the amount appropriated by the legislature for 
that purpose.
This agency hereby certifies that the rule as adopted has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on October 30, 1991.
TRD-9113473
Tom Harrison
Special Assistant for Elections
Office of the Secretary of State
Effective date: November 20, 1991
Proposal publication date: September 20, 1991
For further information, please call: (512) 463-5650
       
1 TAC sec.sec.81.100-81.138
The Office of the Secretary of State adopts new sec.sec.81.100-81.138, 
concerning elections, with changes to the proposed text as published in the 
September 20, 1991, issue of the Texas Register (16 TexReg 1569).
Sections 81.100-81.138 concern the financing of the 1992 primary elections with 
state funds, including the determination of necessary and proper expenses 
relating to the proper conduct of the primary elections by party officials and 
the procedures for requesting reimbursement by the parties for such expenses.
During the Fifth Biannual Election Law Seminar for County Chairs conducted by 
the Office of the Secretary of State on September 30, 1991, county chairs 
commented orally regarding the proposed primary finance rules that appeared in 
the September 20, 1991, edition of the Texas Register. Additionally, several 
written comments were received in reference to the proposed rules. Democratic 
and Republican chairs, county clerks, election administrators, party executive 
committee members, and primary administrators objected to parts of the rules as 
proposed.
This is a summary of the comments received. The rules have been rewritten in 
response to comments concerning payment of election clerks; reimbursements to an 
entity or business in which the county chair, chair's spouse, or chairs family 
has a financial interest; chair's compensation; employee fidelity bonds; office 
rent and equipment; authorization of primary fund expenditures; legal expenses; 
transportation costs; payment of preprinted combination form of registered 
voters; and misuse and misappropriation of state funds.
Several commenters objected to sec.81.101, stating that the proposed section 
would be burdensome, presumes fraud and misuse of funds, and fails to address 
the shortage of alternative services in certain smaller counties in the state. 
Section 81.101 establishes the check writing policy for primary funds. This 
section addresses the fiduciary responsibility of the chairs to account for the 
state funds entrusted to them in a manner that minimizes risk of loss and 
accurately documents each financial transaction. The election judge is not 
prohibited from dispensing the clerks' compensation in the form of checks 
payable to the clerks. Instead, the rule negates the past practice of tendering 
one check to the election judge, who in turn paid the election clerks in cash, 
or with the judge's personal checks. Appropriate compensation procedures should 
demonstrate the actual recipient of state funds. This procedure is also 
consistent with federal tax laws, under which tax liability could be incurred 
for the amount of a check made payable to a judge, even though the compensation 
would ultimately be paid out to the election clerks.
Several commenters requested that the following provision be deleted: "No 
payment may be made from the primary fund to an entity or business in which the 
county chair, chair's spouse, or chairs family has a financial interest." The 
secretary of state has amended this section to read that payments from the 
primary fund may be made to county chairs or county chairs relatives for "office 
rental, incidental administrative costs, election day workers, and county 
chair's compensation."
In response to comments received concerning section 81.103, the proposed rule 
has been changed to permit the employment of one additional full-time 
supervisory employee at a gross compensation not to exceed $1,800 per month for 
county with more than 100,000 registered voters. Several county chairs commented 
that the proposed rule did not provide adequate compensation for the necessary 
personnel to administer the primary elections process. The final version of the 
primary finance rules have been amended to reflect this change. Several 
commenters asked if the employment of administrative personnel for the primary 
elections was necessary. Section 81.103, as adopted states that the employment 
of administrative personnel for the conduct of the primary election is not 
required.
Section 81.105 provides that contract services costing in excess of $500 must be 
pre-approved by the Office of the Secretary of State. This proposed rule is 
consistent with past practices of the office. Such approval will entail review 
of the reasonableness of the fee or rate as reflective of the prevailing rate or 
fee in the locale. Typical services that are subject to this provision include 
preparation and transportation of election equipment, and rental of poll 
furniture. One commenter suggested that the provision be deleted. It is the duty 
of the secretary of state to determine that primary fund expenditures are being 
made in accordance with statutory requirements. It would be inappropriate to 
permit expenditure of state funds without such pre-approval and examination.
Some commenters disagreed with sec.81.107 and asserted that certain early voting 
costs should be paid from the primary fund. The Office of the Secretary of State 
is without authority to change sec.81.107, which merely restates statutory law. 
The Texas Election Code prohibits the use of primary funds for early voting, 
with the exception of the cost of the ballot. (Texas Election Code sec.173.003 
(Vernon 1986)).
Several commenters noted financial and administrative difficulties with the 
fidelity bond requirement, as such a bond may be impossible or cost prohibitive 
to obtain in some areas. The secretary of state recognizes that these 
difficulties may exist, and sec.81.108 has been amended to delete the mandatory 
language of the proposed rule. The provision now recommends that the county 
chair and those persons whose responsibilities include the receipt and/or 
expenditure of primary funds obtain a fidelity bond.
Some commenters asserted that as proposed, sec.81.109 did not adequately 
reimburse the county chairs for use of an office located at a county chair's 
residence or place of business. They noted that primary funds could be used to 
rent office space in residences and county chairs' personal offices in previous 
primary election cycles. They maintained that it would not be cost effective to 
require the county chairs to rent office space outside the home or the chair's 
place of business. The secretary of state recognizes that no cost savings would 
result from this provision; however, the intent of sec.81.109 as proposed, was 
to avoid the appearance of a conflict of interest. The secretary of state 
recognizes that the majority of county chairs do not require, and thus do not 
rent office space for the primary election. Section 81.109, as adopted, allows 
for the rental of office space in which the county chair has a financial 
interest by the county chair submitting a statement concerning the necessity of 
such rental. Section 81.109, as adopted also notes that the rental of office 
space is not necessarily required for the conduct of the primary elections.
Section 81.110 establishes certain restrictions concerning the rental or lease 
of party owned office equipment. Several commenters requested reimbursement for 
costs associated with the use of such equipment. The provision has been amended 
as follows: "The county party many not rent or lease party owned equipment to 
the primary fund, but may be reimbursed for incidental costs of supplies in 
connection with primary election use of party owned equipment. Supplies include 
paper, ribbon, toner, etc. All such costs must be associated with activities 
necessary and directly related to the conduct of primary elections."
Some commenters asserted that reimbursement for up to two phone lines under 
sec.81.112 was insufficient and that primary funds should cover the cost for 
more than two lines. The secretary of state disagrees that the primary fund 
should be responsible for costs incurred above the two line maximum and notes 
that additional lines could be paid for by the parties.
Comments were received concerning the lack of sources available for obtaining at 
least three competitive bids in some counties in purchasing products and 
services under sec.81.113. The secretary of state has considered these comments, 
but notes that other options exist under the rule. Bids can be obtained from 
other counties, or documentation can be provided on the lack of availability of 
competitive quotations.
Commenters suggested that the prohibition against a rubber stamp signature as 
the sole authorization for checks is unduly burdensome, as it could require a 
county chair to sign thousands of checks in some counties. The rule does not 
require the county chair to be the sole signatory on a check, nor does it 
eliminate the use of a mechanical signature. A rubberstamp signature cannot be 
traced, which makes it difficult to secure from potential misuse for 
unauthorized transactions. As the majority of checks are handwritten, it is 
reasonable to request that an original signature appear on the check, possibly 
the signature of the preparer. The revision to the proposed rule does not 
preclude the use of a mechanical signature. It states that such a signature may 
not be the only signature on the check. Section 81.118 is revised to reflect 
these changes.
Proposed sec.81.119 required that the primary finance account be closed by July 
1 following the primary elections. Several commenters noted that costs might be 
saved if they were permitted to leave the account open. Check costs were cited 
as an example. The last sentence of sec.81.119 is amended to permit such a 
practice. The last line of the provision reads: "A final account reconciliation 
must be completed and all unexpended and uncommitted primary funds returned by 
July 1 following the primary elections."
Section 81.120 requires that all contracts for legal services receive the prior 
written approval from the secretary of state. During the 1990 primaries, 
$112,811.13 was expended on legal fees. Chairs are reminded that the Office of 
the Secretary of State has legal staff that can be of assistance during the 
primary process and can answer questions and provide direction that may obviate 
the need for additional legal expenses. It is necessary for the secretary of 
state to determine that the legal expenses are reasonable, necessary, and 
directly related to the conduct of the primary election before approval is 
given. Only if the contract for legal services has received written approval 
will primary funds be authorized.
The title of sec.81.124 is changed for clarification from "Transportation Costs 
Not Payable" to "Mileage and Personal Costs Not Payable. No payment from the 
primary fund is permitted for mileage or other personal expenses incurred by the 
county chair or primary fund employees in the performance of their duties.
Party chairs objected to sec.81.129 that prohibited payment for preprinted 
combination forms of registered voters. Convenience for the elections worker and 
assistance to the voters were cited as reasons for use of the preprinted form. 
The proposed rule shall be amended as follows: "Payments from the primary fund 
for a preprinted combination form of registered voters are limited to $20 or 
actual costs, whichever is less, per precinct for each party". A commenter asked 
if primary funds could be used for dividers and covers for voter registration 
lists. Section 81.129 has been amended to disallow the use of primary funds for 
voter registration list covers and dividers.
Section 81.137 concerns county chairs' compensation. Commenters objected to the 
reduction of the chairs compensation by the amount paid to administrative 
personnel. As outlined by statute, the rule does provide that the chair receive 
an amount not less than $300 nor more than $8,000 or 5.0% of the total expenses 
incurred by the county party for holding the primary elections. The proposed 
rule is amended to permit full compensation for chairs who employ the equivalent 
of one full time administrative person. In instances in which the chair employs 
several people, the entitlement to compensation is to be reduced accordingly.
A commenter requested that sec.81.138 be amended to state that misuse or 
misappropriation of any primary funds may be referred to the proper prosecuting 
authority for enforcement of applicable civil and/or criminal penalties. The 
proposed rule states that such matters will be referred. The secretary of state 
is without discretion to refer matters that establish misuse or misappropriation 
of state funds. If after careful examination, misuse or misappropriation is 
apparent, the matter will be referred to the proper authority.
The new sections are adopted  under the Texas Election Code, sec.31.003 and 
sec.173. 006, which provides the Office of the Secretary of State with the 
authority to obtain and maintain uniformity in the application, interpretation, 
and operation of provisions under the Texas Election Code and other election 
laws, and in performing such duties, to prepare detailed and comprehensive 
written directives and instructions based on such laws, and to adopt rules 
consistent with the Election Code that reduce the cost of the primary elections 
or facilitate the holding of the elections within the amount appropriated by the 
legislature for that purpose.
sec.81.100. Payable Costs.  In accordance with the Texas Election Code, 
sec.173.001, only expenses necessary and directly related to the conduct of 
primary elections are payable from primary funds. The Texas Election Code, 
sec.173.006, allows the secretary of state to adopt rules consistent with the 
Election Code that reduce the cost of primary elections. Political expenses, 
those expenses which would be incurred if there were no election, and expenses 
for any activity forbidden by statute or rule are not primary election costs 
subject to primary fund reimbursement. Examples of non-payable expenses include, 
but are not limited to: expenses incurred in connection with a convention of a 
political party, any food or drink items, all costs associated with voter 
registration drives, and get out the vote campaigns. Pursuant to the Texas 
Election Code, sec.173.031, primary funds include filing fees, contributions to 
the primary fund, state appropriations, and other income earned by the fund. Any 
refund of money expended from the primary fund is also part of the primary fund.
sec.81.101. Payee of Checks Restricted. Except for the check written to 
establish a petty cash fund, no check written on the primary fund shall be made 
payable to cash or bearer. All checks other than the check written to establish 
a petty cash fund shall be made payable to an entity or person. No checks from 
the primary fund may be made payable to the county party as contributions or to 
election judges as reimbursement for payments to election clerks. The only 
payments which may be made from the primary fund to an entity or business in 
which the county chair, chair's spouse, or chair's family has a financial 
interest are those payments for office rental, election day workers, incidental 
administrative costs, and the county chair's compensation.
sec.81.102. Form of Payments; Petty Cash Fund; Documentation of Petty Cash 
Transactions. All payments from the primary fund shall be made by check, except 
that the county chair may establish a petty cash fund not exceeding $100 for 
minor purchases and payments. Complete documentation of all petty cash 
transactions shall be kept.
sec.81.103. Administrative Personnel.  The employment of administrative 
personnel is not necessarily required for the conduct of the primary elections. 
In the event the county chair requires administrative assistance in the conduct 
of the primary election, salaries or wages of such administrative personnel are 
payable from the primary fund for the period beginning on December 1 preceding 
the primary elections and ending on the last day of the month in which the last 
primary election is held (general or runoff primary election). Such personnel 
may not be employed without the prior written approval of the secretary of 
state. Salaries must be reasonable for the hours worked and services rendered 
and must reflect the salaries paid in the locale for the same or similar 
services. Gross compensation for each full time primary fund employee may not 
exceed $1,500 per month. In counties with more than 100,000 registered voters, 
one full-time supervisory employee may be employed at a gross compensation not 
to exceed $2,000 per month and, if necessary, one additional full-time employee 
at a gross compensation not to exceed $1,800 per month. A list of necessary 
personnel to be paid from the primary fund must be transmitted to the secretary 
of state and must indicate the name and title of the employee, job duties, hours 
to be worked, period of employment, monthly or hourly rate of pay, and the 
estimated or actual gross pay for the period. This information must also be 
attached to each finance report.
sec.81.104. Administrative Personnel Payroll Taxes. No payment may be made from 
the primary fund for penalties arising from failure to pay the employer portion 
of employment taxes. Copies of all quarterly 941 returns filed with the Internal 
Revenue Service must be kept with the county primary records and be transmitted 
to the secretary of state upon request.
sec.81.105. Contracts for Services. Contracts for services costing over $500 
must be approved in writing by the secretary of state before money from the 
primary fund may be expended under the terms of such contracts. The fee or rate 
must be reasonable for the services rendered and must reflect the fee or rate 
prevailing in the locale for the same or similar services. The contract shall be 
signed by both the county chair and the contractor.
sec.81.106. Election Services Contract. The Model Election Services Contract 
prescribed by the secretary of state is adopted by reference. Copies of the 
contract may be obtained from the secretary of state. The model contract must be 
used in an agreement for election services pursuant to the Texas Election Code, 
Chapter 31, Subchapter B, between the county executive committee and the county 
elections officer, unless otherwise authorized by the secretary of state. Any 
modification of an election services contract is not binding until approved in 
writing by the Secretary of State, and execution of the contract is not 
completed until written approval is obtained. The county elections officer must 
submit an accounting of the actual costs incurred in performance of the election 
services contract before the county chair may make final payment. Only actual 
costs incurred by the county and payable under provisions of the Election Code, 
Election Services Contract, or 1992 Primary Rules may be paid to the county from 
primary funds. A contract may not allow for reimbursement for training of 
election workers or providing materials published by the secretary of state. 
Regular salaries of personnel regularly employed by the county may not be paid 
from or reimbursed to the county from the primary fund. An election services 
contract for the 1992 primary elections cannot provide for any salary or 
compensation of the county election officer for the performance of any statutory 
duty or service.
sec.81.107. Early Voting Costs Not Payable. Pursuant to the Texas Election Code, 
sec.173.003, the only expense to be paid from primary funds for early voting 
(formerly called absentee voting) are the cost of ballots. The county must pay 
for by-mail kits and their postage, early voting workers, and all other costs 
incurred in conducting early voting. No costs related to early voting shall be 
included in a primary election services contract or primary cost reports. 
Expenses related to the early voting ballot board are payable from the primary 
fund.
sec.81.108. Employee Fidelity Bond Required. A fidelity bond for those persons, 
including the county chair, whose responsibilities include the receipt and/or 
expenditure of primary funds may be purchased from primary funds. The amount of 
the bond is based upon the anticipated total amount of money the employee is 
expected to handle for the period beginning December 1 before the primary 
elections and ending the last day of the month in which the final primary 
election (either general or runoff) is held. The maximum anticipated amount of 
money handled by any such employee for purposes of determining the cost of the 
bond shall be $50,000.
sec.81.109. Office Rent.  The rental of office space is not necessarily required 
for the conduct of the primary elections. In the event the county chair requires 
office space for the conduct of the primary election, rental for such space is 
payable from the primary fund for the period beginning on December 1 preceding 
the primary elections and ending on the last day of the month in which the last 
primary is held (general or runoff primary election). A copy of the lease 
agreement shall be transmitted to the secretary of state along with the primary 
election cost estimate. Office rent shall not exceed the fair market rate for 
office space in the locale. Any change in a lease agreement and an explanation 
of such change shall be transmitted to the secretary of state with the next 
required primary election estimate or report. Rental charges may not be paid 
from primary fund for the use of property in which the county chair has a 
financial interest without the submission of a written justification as to the 
necessity of such charges.
sec.81.110. Office Equipment.  Office equipment (including telephone equipment) 
necessary for the administration of the primary elections may be leased for the 
period beginning December 1 preceding the primary and ending on the last day of 
the month in which the last primary is held (general or runoff primary 
election). The county party may not rent or lease party owned equipment to the 
primary fund. The county party or chair may be reimbursed for the incidental 
costs of supplies used in connection with primary election use. Examples of 
incidental use are paper, toner, staples, etc. The primary fund may not be used 
to purchase any administrative item of more than $100 in value.
sec.81.111. Office Supplies and Two Copies of the Texas Election Code.   
Purchases of office supplies necessary for the administration of the primary 
elections are payable from the primary fund. The expenditure for purchase of two 
copies of a paperback version of the Texas Election Code is authorized from the 
primary fund. No payment may be made from the primary fund for notary public 
expenses.
sec.81.112. Telephone and Postage Charges. Telephone costs, for a maximum of two 
telephone lines, and postage charges which are incurred during the period from 
December 1 preceding the primary elections and ending on the last day of the 
month in which the last primary is held and which are directly related to the 
administration of the primary elections, are payable from the primary fund. Any 
cost not directly attributable to the administrative conduct of the primary 
elections is not payable from the primary fund.
sec.81.113. Competitive Quotations for Services or Products.  Unless prior 
approval of the secretary of state is obtained, the county chair must purchase 
all services and products using competitive quotations from three or more 
sources. Documentation or explanation of the lack of availability of competitive 
quotations must be submitted with the General Primary Election Cost Estimate. 
This rule does not apply to expenditures of $100 or less.
sec.81.114. Bank Account for Primary Fund Deposits and Expenditures.  The county 
chair shall establish and maintain a bank account for the sole purpose of 
depositing and expending primary funds. Primary funds shall not be commingled 
with any other fund or account. All checks issued on this account must include 
the following statement on their face "Void After 60 Days." Bank reconciliations 
must be completed on a monthly basis. These reconciliations become part of the 
primary records.
sec.81.115. Deposit of Currency. All filing fees and contributions received in 
currency shall be deposited intact into the primary fund.
sec.81.116. List of Candidates and Filing Fees.  A complete list of candidates, 
including the offices sought and amount of filing fees received from each 
candidate, shall be transmitted to the secretary of state by January 13, 1992. 
This list shall reflect whether each candidate filed by petition or filing fee.
sec.81.117. Interest on Loans Not Payable. Interest on loans of money to cover 
operating costs until the receipt of primary funds approved by the secretary of 
state is not payable from the primary fund. Such "start-up" money should be 
obtained from the secretary of state by filing a General Primary Election Cost 
Estimate.
sec.81.118. Signature on Checks; Authorization of Primary Fund Expenditures. All 
checks written on the primary fund shall be personally signed by either the 
county chair or an authorized agent of the county chair, except that payroll 
checks to administrative personnel and checks to sole source vendors must be 
signed by the county chair. All primary fund expenditures shall be authorized by 
the county chair. No checks shall be signed only with a rubber stamp or other 
facsimile.
sec.81.119. Documentation of Expenses/Record Keeping. Copies of all bills, 
invoices, contracts, petty cash receipts, and any other related materials 
supporting primary election costs shall be transmitted to the secretary of state 
upon request. Such records must be preserved for a period ending not later than 
one calendar year from July 1 following the primary elections, but if court 
action or an official investigation is pending, they shall be preserved until 
the termination of such court action or official investigation. A final account 
reconciliation must be completed and all unexpended and uncommitted primary 
funds returned by July 1 following the primary elections.
sec.81.120. Legal Expenses.  No legal expenses may be paid from the primary fund 
without the prior written approval of the secretary of state. Before entering 
into a contract for legal services anticipated to be payable from primary funds, 
the county chair must contact the secretary of state and obtain a determination 
that such legal services are payable from the primary fund. Such determination 
must be verified in writing and submitted to the county chair.
sec.81.121. Transfer of Records to New County Chair. The county chair is 
responsible for the complete and orderly transfer to his successor or the 
appropriate county committee of all records required by law in connection with 
the primary election. If a vacancy occurs in the office of county chair, the 
executive committee shall these records until a elected.
sec.81.122. Early Filing of General Primary Election Cost Estimate.  If the 
General Primary Election Cost Estimate is transmitted to the secretary of state 
prior to the close of the regular filing period, the county chair shall estimate 
the amount of filing fees to be collected. The amount of estimated filing fees 
shall be reported as a financing source on the General Primary Election Cost 
Estimate.
sec.81.123. Returning Surplus Funds. Any surplus remaining in a primary fund 
account after payment of approved expenses shall be remitted to the secretary of 
state, primary fund account, with the Final Cost Report, but not later than July 
1 following the primary election, unless otherwise provided by the secretary of 
state.
sec.81.124. Mileage and Other Personal Costs Not Payable. No payment from the 
primary fund is permitted for mileage or other personal expenses incurred by the 
county chair or primary fund employees in the performance of their duties.
sec.81.125. Compensation For Election Day Workers.  The hourly rate payable to 
precinct judges, clerks, absentee ballot board members, or persons working at 
the central counting station for the 1992 general primary and primary runoff 
elections may not exceed $5.00. A judge or clerk may only be paid for the actual 
time spent on election duties performed in the polling place or counting 
station. An election day worker may not receive an hourly compensation for 
travel time, pick up or delivery of supplies, or attendance at the precinct 
convention. Technical support personnel in the under the Texas Election Code, 
sec.sec.127.002, 127.003, or 127.004, may receive a compensation of greater than 
$5.00 per hour.
sec.81.126. Compensation For Delivering Election Records and Supplies.  
Compensation of the election judge or clerk who delivers and picks up the 
election records, equipment, and unused supplies may not exceed $15 per physical 
polling place location for each election.
sec.81.127. Reimbursement For Election Schools Disallowed.   Reimbursement for 
training of election workers or providing materials published by the secretary 
of state may not be made from the primary fund. Persons attending election 
schools may not be compensated from primary funds. Training materials may be 
ordered free of charge by contacting the secretary of state.
sec.81.128. No Charge For Use of a Public Building as Polling Place.  Pursuant 
to Texas Election Code, sec.43.033, no charge may be made for the use of a 
public building on election day if that building is normally open for business 
on that day. Any charge for the use of a building for a state or county 
political convention may not be paid with primary funds. Secretary of State 
Opinion GSB-l further clarifies this section and is available from the secretary 
of state.
sec.81.129. Payment From Primary Funds For Pre-Printed Combination Form of 
Registered Voters Limited. The Texas Election Code, sec.18.010, requires the 
county voter registrar to provide free of charge the necessary lists of 
registered voters to be used in the polling place. In those counties which use a 
preprinted combination form of registered voters, reimbursement to the voter 
registrar is limited to $20 per precinct or the actual cost of the paper stock, 
whichever is less. No payment may be made from the primary fund for binders or 
dividers for use with the voter registration lists.
sec.81.130. Estimating Voter Turnout.
(a) The county chair should use the following formula as a starting point in 
determining the estimated voter turnout for the 1992 primary elections. Each 
county chair should determine whether the local political situation suggests a 
higher turnout, and, if so, his or her estimate should be adjusted to take such 
factors into account. In presenting such estimate, the chair should present 
those factors and his or her analysis of those factors, and the Secretary of 
State will evaluate such higher estimates based on the factors and analysis on a 
case-by-case basis. The formula for estimating turnout for the 1992 primary 
elections is:
[graphic]
(b) After estimating the voter turnout for each precinct, the county chair 
should then use the guidelines set forth in sec.sec.81.131-81.134 of this title 
(relating to Number of Paper or Electronic Voting System Ballots Per Voting 
Precinct; Number of Election Workers Per Voting Precinct Limited; Flex 
Scheduling of Precinct Workers; and Number of Voting Machines, Devices, and/or 
Precinct Ballot Counters Per Voting Precinct) to determine the necessary 
physical requirements (i.e., ballots, election judges and clerks, voting devices 
or machines) for each precinct. After estimating the physical requirements for 
each precinct, the county chair should combine the precinct data to arrive at 
the total estimated physical requirements of the primary election countywide. 
This may then be used to estimate the election costs.
sec.81.131. Number of Paper or Electronic Voting System Ballots Per Voting 
Precinct. The minimum number of ballots furnished to each voting precinct for a 
primary election shall be equal to the estimated voter turnout as determined by 
the county chair pursuant to sec.81.128 of this title (relating to No Charge For 
Use of a Public Building as Polling Place). In no event shall the minimum number 
of ballots be less than the number arrived at by application of the numerical 
formula. The number of ballots provided may exceed the estimated number of 
voters determined by the numerical formula, since the number of ballots provided 
should never be so low as to impede the voting process or to jeopardize the 
rights of voters. The maximum number of ballots ordered may equal the total 
number of registered voters of the precinct if such a number may be 
substantiated.
sec.81.132. Number of Election Workers Per Voting Precinct Limited.  The 
following table must be used to determine the number of election workers 
allowable for each precinct. The minimum number of clerks in a primary election 
is two, for a total of three workers, including the presiding judge (Texas 
Election Code, sec.173.008(c)).
[graphic]
sec.81.133. Flex Scheduling of Precinct Workers.  If the number of election 
clerks allowed in a precinct is greater than two, the presiding judge may 
utilize one or more of the additional clerk positions to hire more clerks for 
shorter work periods. For example, instead of hiring one clerk for a 12-hour 
shift, the judge could hire three clerks for four-hour shifts, beginning at 4 p. 
m. and ending at 8 p.m. Clerks may be assigned to work for periods ending before 
any manual count or examination of ballots begins. Therefore, if no counting or 
examination of ballots has occurred, unnecessary clerks may be excused early, 
preventing unwarranted personnel expenses.
sec.81.134. Number of Voting Machines, Devices and/or Precinct Ballot Counters 
Per Voting Precinct.
(a) The following table must be used to determine the number of voting machines, 
precinct ballot counters, and punch card voting devices allowable for each 
precinct.
[graphic]
(b) In counties where voting machines are to be used, the county chair should 
make a special assessment of whether the number of voting machines calculated 
according to this formula is adequate and make provisions both in his cost 
estimate and his actual procurement of voting machines accordingly.
sec.81.135. Payment For Use of County Owned Equipment.  The Texas Election Code, 
sec.123.033 specifies the rental rate a county may charge for the use of county 
owned election equipment. These rates are set at $16 per lever machine, $5.00 
per punch card device, and $5.00 for each unit of tabulating equipment. In 
addition to these rental charges a county primary fund may be used to pay the 
actual expenses incurred by the county in transporting the equipment, preparing 
and programming equipment, testing equipment, and the cost of staffing the 
central counting station on election night. If the county's mainframe computer 
system is utilized as the central counting station ballot accumulator, the 
county may be reimbursed for its actual cost of providing this service. The cost 
to be reimbursed shall be calculated using the same cost accounting techniques 
used by the county in charging county departments for use of its data processing 
services. In the event the county does not have an established chargeback system 
for such purposes, the reimbursement shall be calculated based on $1.00 per 100 
ballots tabulated. Supporting calculations for the amount charged for these 
services shall be submitted to the secretary of state for review with the Final 
Cost Report. The primary fund may not be used to pay expenses related to the use 
of non-county owned equipment without the written permission of the secretary of 
state.
sec.81.136. Application of Rules. These rules apply to primary funds managed by 
the chair of both the state and county executive committees.
sec.81.137. County Chair's Compensation. Pursuant to the Texas Election Code, 
sec.173.004, county chairs may receive a compensation for administering the 
primary elections. This compensation may not be less than $300 nor exceed the 
lesser of $8,000 or 5.0% of the total expenses incurred by the county party for 
holding the primary election. The county chair's compensation must be reduced by 
the amount of administrative personnel wages in excess of $7, 500. In no case 
may the county chair's compensation be less than $300. This compensation may not 
be paid until the county party's Final Cost Report has been approved by the 
secretary of state. The county chair will be notified of this approval by 
letter.
sec.81.138. Misuse of State Funds. The misuse or misappropriation of any primary 
funds will be referred to the proper prosecuting authority for enforcement of 
applicable civil and/or criminal penalties.
This agency hereby certifies that the rule as adopted has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on October 30, 1991.
TRD-9113474
Tom Harrison
Special Assistant for Elections
Office of  the Secretary of State
Effective date: November 20, 1991
Proposal publication date: September 20, 1991
For further information, please call: (512) 463-5650
       
TITLE 4. AGRICULTURE
Part II. Texas Animal Health Commission
Chapter 35. Brucellosis
Subchapter A. Eradication of Brucellosis in Cattle
4 TAC sec.35.6
The Texas Animal Health Commission (TAHC) adopts an amendment to sec.35.6, with 
changes to the proposed text as published in the July 30, 1991, issue of the 
Texas Register  (16 TexReg 4124).
The amendment was necessary to expand the provisions of herd eligibility for 
payment of indemnity funds and provides an incentive to the herd owner to 
liquidate herds which have demonstrated high or long-standing brucellosis 
infection.
Indemnity funds can be paid to a herd owner with a selected herd provided funds 
are available. An indemnity agreement must be signed by a herd owner and 
approved for payment by the TAHC executive director and the USDA, APHIS, VS 
veterinarian-in-charge. Indemnity funds may be reimbursed from a combination of 
TAHC and/or Veterinary Services funds for depopulation. The specific amounts for 
indemnity proposed for animals which are negative exposed, test-eligible 
(females and males) and reactors are set forth in the rule. A herd owner must 
submit simultaneously with the indemnity claim, a spaying certificate, and proof 
of payment for cost of spaying. Depopulated cattle are required to be branded 
and identified at specified time intervals. A herd owner who has been approved 
for depopulation must agree to complete a herd test of eligible animals no later 
than six months after repopulation with test-eligible breeding replacements. The 
word "or" was added in the paragraph concerning depopulation. Funds available 
for depopulation can come from either the commission and/or veterinary services 
funds. In addition, since paragraphs (1) and (2) were deleted in the proposal, 
the remaining subdivisions have been changed accordingly.
No comments were received regarding adoption of the amendment.
The amendment is adopted under the Agriculture Code, Texas Civil Statutes, 
Chapters 161 and 163, which provides the commission with authority to adopt 
rules and sets forth the duties of this commission to protect livestock in the 
state from disease.
sec.35.6. Indemnity Payments to Owners of Cattle Exposed to Brucellosis.
(a) Herd eligibility for payment of indemnity funds:
(1) the entire herd (all cattle under common ownership or management) must have 
been tested; and
(2) an indemnity agreement must be signed and approved for payment by the 
executive director and USDA, APHIS, VS veterinarian-in-charge; and
(3) the herd owner must comply with each requirement pertaining to herd 
depopulation and payment for indemnity; and
(4) the herd must be recommended for indemnity by the state epidemiologist.
(b) Criteria for selection of herds for indemnity payment:
(1)-(2) (No change.)
(3) a herd not meeting paragraphs (1) or (2) of this subsection is recommended 
for indemnity by the state epidemiologist;
(4) all selections of herds for payment of indemnity are subject to availability 
of funds.
(c) General requirements.
(1)  The commission, through its executive director, will determine the amount 
and number of animals for which indemnity will be paid. The owner of a herd 
selected for indemnity may be reimbursed from a combination of commission and/or 
veterinary services funds for depopulation at a total rate not to exceed:
(A) negative exposed, test-eligible females-$200 per head for not more than 50 
females;
(B) negative exposed, test-eligible males-$250 per head for not more than two 
per herd;
(C) test-eligible reactor animals-$50 per head;
(D) females under test age:
(i) unspayed and less than 400 pounds-$150 per head;
(ii) over 400 pounds -not eligible for depopulation funds. Actual cost up to $10 
per head may be reimbursed for spaying, or these cattle may be "S" branded and 
sent to slaughter, quarantined feedlot, or market for sale to slaughter or 
quarantined feedlot. A spaying certificate and the proof of payment for cost of 
spaying must be submitted simultaneously with the indemnity claim.
(2) Depopulation funds shall not be paid for steers or spayed heifers.
(3) (No change.)
(4)  Depopulated cattle shall be branded with the letter "B" on the left jaw and 
identified with a reactor eartag within the specified time intervals according 
to applicable state/federal requirements, and prior to movement from the 
premise.
(5) Cattle shall be moved from the premise accompanied with a VS 1-27. They 
shall either be moved directly to slaughter or through an approved livestock 
market for sale directly to slaughter and accompanied with a VS 1-27 from the 
market. In either case the cattle shall be slaughtered within the specified time 
intervals according to applicable state/federal regulations following 
identification. Steers and spayed heifers may be retained on the premise or move 
without restrictions.
(6) The owner of a herd approved for depopulation must agree to complete a herd 
test of eligible animals no later than six months after repopulation with test-
eligible breeding replacements.
This agency hereby certifies that the rule as adopted has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on October 25, 1991.
TRD-9113330
Terry Beals, DVM
Executive Director
Texas Animal Health Commission
Effective date: November 22, 1991
Proposal publication date: July 30, 1991
For further information, please call: (512) 479-6697
       
Subchapter B. Eradication of Brucellosis in Swine
4 TAC sec.35.47
The Texas Animal Health Commission adopts new sec.35.47, concerning owner 
assistance, without changes to the proposed text as published in the July 30, 
1991, issue of the Texas Register (16 TexReg 4125).
It was necessary to require that a herd owner or caretaker furnish necessary 
labor and facilities, when requested to do so by the commission, when swine are 
submitted for testing or vaccination.
Less hazardous testing conditions for state personnel and a savings in time will 
be realized by requiring a herd owner or caretaker to furnish necessary labor 
and facilities when swine are submitted for testing or vaccinating.
No comments were received regarding adoption of the new section.
The new section is adopted under the Agriculture Code, Texas Civil Statutes, 
Chapter 161 and 163, which provides the commission with authority to adopt rules 
and sets forth the duties of this commission to protect livestock in the state 
from disease.
This agency hereby certifies that the rule as adopted has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas on October 25, 1991.
TRD-9113331
Terry Beals, DVM
Executive Director
Texas Animal Health Commission
Effective date: November 22, 1991
Proposal publication date: July 30, 1991
For further information, please call: (512) 479-6697
       
Chapter 55. Swine
4 TAC sec.55.5
The Texas Animal Health Commission adopts an amendment to sec.55.5, concerning 
owner assistance, without changes to the proposed text as published in the July 
30, 1991, issue of the Texas Register (16 TexReg 4125).
It was necessary to require that a herd owner or caretaker furnish necessary 
labor and facilities, when requested to do so by the commission, when swine are 
submitted for testing or vaccination.
Less hazardous testing conditions for state personnel and a savings in time will 
be realized by requiring a herd owner or caretaker to furnish necessary labor 
and facilities when swine are submitted for testing or vaccinating.
No comments were received regarding adoption of the amendment.
The amendment is adopted under the Agriculture Code, Texas Civil Statutes, 
Chapter 161, which provides the commission with authority to adopt rules and 
sets forth the duties of this commission to protect livestock in the state from 
disease.
This agency hereby certifies that the rule as adopted has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas on October 25, 1991.
TRD-9113332
Terry Beals, DVM
Executive Director
Texas Animal Health Commission
Effective date: November 22, 1991
Proposal publication date: July 30, 1991
For further information, please call: (512) 479-6697
       
Chapter 59. General Practice and Procedures
4 TAC sec.59.2
The Texas Animal Health Commission adopts an amendment to sec.59.2, concerning 
general responsibilities, without changes to the proposed text as published in 
the July 30, 1991, issue of the Texas Register (16 TexReg 4126).
It was necessary to provide that if the agency executive director varies 
regulations for a herd owner because of unusual circumstances or individual 
hardship that such actions be presented to the members of the commission.
The executive director of this agency has authority to vary or waive provisions 
of rules administered by this agency. Details concerning such waiver or variance 
must be presented by the executive director to members of the commission after 
such occurrence at the next scheduled meeting of the commission.
No comments were received regarding adoption of the amendment.
The amendment is adopted under the Agriculture Code, Texas Civil Statutes, 
Chapter 161, which provides the commission with authority to adopt rules and 
sets forth the duties of this commission to protect livestock in the state from 
disease.
This agency hereby certifies that the rule as adopted has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on October 25, 1991.
TRD-9113333
Terry Beals, DVM
Executive Director
Texas Animal Health Commission
Effective date: November 22, 1991
Proposal publication date: July 30, 1991
For further information, please call: (512) 479-6697
       
TITLE 22. EXAMINING BOARDS
Part XXIII. Texas Real Estate Commission
Chapter 535. Provisions of the Real Estate License Act
Termination of Salesman's Association with Sponsoring Broker
22 TAC sec.535.123
The Texas Real Estate Commission adopts new sec.535.123, concerning inactive 
broker status, with changes to the proposed text as published in the September 
3, 1991, issue of the  Texas Register (16 TexReg 4797).
The new section is necessary to implement provisions of Senate Bill 432, 72nd 
Legislature (1991), permitting real estate brokers to be placed on inactive 
status upon request. Section 535.123 requires a broker to give at least 30 days 
notice to any salesmen the broker sponsors and to return the broker's license 
certificate to the commission. On final adoption, the new section was modified 
to permit a broker to request inactive status by letter if the broker's name, 
license number, and current mailing address are provided. If the broker requests 
to be returned to active status 36 months or less after being placed on inactive 
status, the broker must complete at least 15 hours of approved mandatory 
continuing education courses. After 36 months, the broker must satisfy current 
examination and education requirements for original broker licensure as a 
condition to return to active status.
No comments were received regarding adoption of the new section.
The new section is adopted under Texas Civil Statutes, Article 6573, sec.5(h), 
which provide the Texas Real Estate Commission with the authority to make and 
enforce all rules and regulations necessary for the performance on its duties.
sec.535.123. Inactive Broker Status.
(a) For the purpose of this section, "inactive broker" means a licensed broker 
who does not sponsor salesmen or perform any activities for which a broker 
license is required and who has been placed on inactive status by the 
commission.
(b) To be placed on inactive status, a broker must do the following:
(1) apply to the commission on a form approved by the commission for that 
purpose or by a letter providing the broker's name, license number, and current 
mailing address;
(2) confirm in writing that the broker has given any salesmen sponsored by the 
broker written notice or termination of sponsorship at least 30 days prior to 
filing the request for inactive status; and
(3) return the broker's current license certificate to the commission.
(c) A broker who has been placed on inactive status may apply to the commission 
for return to active status on a form approved by the commission.
(1) If the application for return to active status is filed within 36 months 
after the commission placed the broker on inactive status, the broker must have 
attended at least 15 hours of mandatory continuing education as specified in 
Texas Civil Statutes, Article 6573a, sec.7A (the Act), during the two-year 
period immediately preceding the filing of the application.
(2) If the application for return to active status is filed more than 36 months 
after the commission placed the broker on inactive status, the broker must do 
the following to be returned to active status.
(A) pay the current fee for an application for a license examination;
(B) successfully complete a broker license examination within six months from 
the time the broker is authorized to sit for the examination;
(C) pay the current fee for transcript evaluation; and
(D) satisfy current educational requirements for original broker licensing.
(d) A broker who has been returned to active status may not practice real estate 
brokerage until the broker has received a new license certificate from the 
commission. A broker on inactive status is not subject to the requirements of 
the Act, sec.12(c), regarding display of license.
This agency hereby certifies that the rule as adopted has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on October 25, 1991.
TRD-9113286
Mark A. Moseley
General Counsel
Texas Real Estate Commission
Effective date: November 18, 1991
Proposal publication date: September 3, 1991
For further information, please call: (512) 465-3900
       
Part XXIV. Texas Board of Veterinary Medical Examiners
575. Practice and Procedured
22 TAC sec.575.20
The Texas Board of Veterinary Medical Examiners adopts an amendment to 
sec.575.20, concerning subpoena fees and expenses of witnesses, without changes 
to the proposed text as published in the July 26, 1991, issue of the Texas 
Register (16 TexReg 4052).
The rule will eliminate the need to amend the reimbursable amounts for travel of 
witnesses, when legislative action is taken.
The adoption will enable the board to reimburse witnesses at the same rate as 
allowed for classified state employees.
No comments were received regarding adoption of the amendment.
The amendment is adopted under Texas Civil Statutes, Article 8890, sec.7(a), 
which provide the Texas Board of Veterinary Medical Examiners with the authority 
to "...make, alter, or amend such rules and regulations as may be necessary or 
desirable to carry into effect the provisions of this Act."
This agency hereby certifies that the rule as adopted has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas on October 29, 1991.
TRD-9113426
Buddy Matthijetz
Executive Director
Texas Board of Veterinary Medical Examiners
Effective date: November 20, 1991
Proposal publication date: July 26, 1991
For further information, please call: (512) 447-1183
       
TITLE 25. HEALTH SERVICES
Part I. Texas Department of Health
Chapter 37. Maternal and Child Health Services
Lay Midwives
The Texas Department of Health (department) adopts the repeal of sec.sec.37. 
171-37.180, and adopts new sec.sec.37.171-37.184. Sections 37.172, 37.174, 
37.175, 37.178, 37.180, 37.181, and 37.184 are adopted with changes to the text 
as published in the August 30, 1991, issue of the Texas Register  (16 TexReg 
4722). Sections 37.171, 37.173, 37.176, 37.177, 37.179, 37.182, and 37.183 are 
adopted without changes and will not be republished.
The new sections replace the existing sections, update and clarify the 
provisions in the replaced sections concerning the practice of midwifery in the 
State of Texas, and implement the requirements of the Texas midwifery law, Texas 
Civil Statutes, Article 4512i, as amended by Senate Bill 346, 72nd Legislature, 
effective September 1, 1991. The new sections cover purpose; definitions; duties 
of the Board of Health, Midwifery Board, Department of Health, and Midwifery 
Program Coordinator; Midwifery Board meetings; annual documentation of midwives; 
additional information required of midwives; the informed choice and disclosure 
statement; complaint procedure; publishing of reports on the practice of 
midwifery in Texas; education of midwives; newborn screening requirements and 
procedures; and administering of eye prophylaxis.
Comments received concerning the proposed repeal and new sections, and the 
department's response are as follows.
Concerning sec.37.172, relating to the definitions of "approved midwifery 
course" and "course", a commenter recommended that all references to the word 
"course" be changed to "courses" because the Midwifery Board will be considering 
other training programs available as basic information courses to fulfill the 
educational requirements. The department agrees and has made the change.
Concerning sec.37.172, relating to the definition of "midwifery", a commenter 
recommended a minor editorial change for clarification purposes. The department 
agrees and has made the change.
Concerning sec.37.172, relating to the definition of "normal childbirth", a 
commenter recommended that the dates for a term pregnancy be changed from the 
term of "37 to 41 weeks" to the term of "37 up to 42 weeks" for clarification. 
The department agrees and has made the change.
Concerning sec.37.172, a commenter recommended that the definition of standing 
delegation orders be reworded to cover both orders for newborn screening 
training as well as standing delegation orders for a midwife applying 
prophylaxis to the eyes of a newborn baby. The department agrees and has made 
appropriate changes.
Concerning sec.37.174(c)(7), relating to terms of office, a commenter stated 
that this provision should not be in a paragraph under the subsection concerning 
Midwifery Board meetings; instead, the provision should be in a separate 
subsection. The department agrees and has created a subsection (c) covering 
terms of office. Proposed subsection (c) concerning meetings has been renumbered 
as final subsection (d).
Concerning sec.37.174(d), relating to compensatory per diem for Midwifery Board 
members attending meetings, a commenter said that this provision should not be 
in a separate subsection; instead, the provision should be in a paragraph under 
the section covering Midwifery Board meetings. The department agrees and has 
moved the provision from subsection (d) to paragraph (7) under new subsection 
(d).
Concerning sec.37.174(d), a commenter recommended that the compensatory per diem 
amount should be modified to comply with the amount prescribed in the Midwifery 
Act. The department agrees and has made the change. Also, as previously 
mentioned, proposed subsection (d) has become final paragraph (7) under new 
subsection (d).
Concerning sec.37.175(e) and sec.38.181(a), relating to provisions on newborn 
screening, two commenters recommended that certification in phlebotomy be 
accepted as an alternative to completing newborn screening training and having 
to have a physician's signature because newborn training is a skill learned as 
part of phlebotomy training. The department disagrees because the Midwifery Act, 
sec.19A, which covers newborn screening training, does not authorize phlebotomy 
training as an alternative.
Concerning sec.37.175(e), relating to an application for annual documentation, a 
commenter requested that proof of citizenship or alien residency be part of the 
application in order to reduce the number of undocumented aliens in Texas acting 
as midwives. The department disagrees because the Midwifery Act does not 
authorize this requirement.
Concerning sec.37.175(e), a commenter recommended that the subsection be 
reworded for clarification. The department agrees and has appropriately reworded 
the subsection.
Concerning sec.37.175(i), a commenter recommended that the subsection be 
modified to comport with new proposed rules by the department's Bureau of Vital 
Statistics concerning the filing of birth certificates for infants not born in 
licensed institutions. The department agrees and has made the change.
Concerning sec.37.175(i), a commenter recommended that the word "list" be 
changed to the word "roster" in order to comply with language in the Midwifery 
Act. The department agrees and has made the change.
Concerning sec.37.178(b), concerning complaint procedure, a commenter 
recommended that the subsection be modified to say that a complaint may be made 
to the local law enforcement authority in addition to the Midwifery Program 
because such a procedure is authorized by law. The department agrees and has 
made the change.
Concerning sec.37.178(d)(2), several commenters recommended that that the 
subsection include references to the Texas Birthing Center Act, the Texas 
Dangerous Act, the Texas Controlled Substances Act, and department rules adopted 
under authority of the acts. The department agrees and has added new 
subparagraphs to include the references. The remaining subparagraphs have been 
appropriately renumbered.
Concerning sec.37.178(d)(2)(A)-(J), a commenter recommended that the 
subparagraphs be expanded by identifying the rules which have been adopted under 
authority of the laws described in the subparagraphs. The department agrees and 
has identified the rules.
Concerning sec.37.178(d)(2)(C), a commenter recommended that the subparagraph be 
modified to include rules developed by the department's Bureau of Vital 
Statistics concerning the preparation and filing of birth certificates. The 
department agrees and added the appropriate language.
Concerning sec.37.178(d)(2)(G), a commenter stated that a midwife should not be 
subject to the department rules concerning the definition, treatment, and 
disposition of special wastes from health care related facilities. The commenter 
believes that the rules apply only to health care related facilities such as 
birthing centers and not to midwives themselves. The department's response is 
that it appreciates the comment but believes that all midwives should be aware 
of this rule whether or not the midwives themselves own or manage birthing 
centers. Accordingly, the department has made no changes to the subparagraph 
other than to renumber it as final sec.37.178(d)(2)(I).
Concerning sec.37.178(d)(3), a commenter recommended that the paragraph be 
clarified so that the confidentiality of complaints received by the department 
will follow more closely the requirements in the Texas Open Records Act. The 
department agrees and has made appropriate changes to the language in the 
paragraph.
Concerning sec.37.180(b)(2), a commenter recommended that the paragraph be 
clarified to show that the department adopts by reference the Texas Midwifery 
Manual. The department agrees and has made the change.
Concerning sec.37.180(b)(10)(B)(iii), a commenter recommended that the method of 
payment for fees be specified. The department agrees and has added specific 
language on the method of payment.
Concerning sec.37.180(c), a commenter recommended that a new subsection (c) be 
added to provide the Midwifery Board with the authority to approve other courses 
comparable to the basic voluntary course in fulfillment of the basic educational 
requirements. The commenter makes this request because the Midwifery Board 
intends to have other courses which are presently in existence be approved for 
basic midwifery education. The department agrees and has added the new 
subsection (c). Proposed subsection (c) now becomes new subsection (d).
Concerning sec.37.181(a), relating to newborn screening, a commenter recommended 
that the phrase "December identification" at the end of the subsection by 
replaced by the phrase "initial December documentation" for purposes of 
clarification. The department agrees and has made the change.
Concerning sec.37.181(d), a commenter recommended that the subsection be 
clarified to comply more closely with the requirements of the Midwifery Act. The 
department agrees and has made appropriate changes.
Concerning sec.37.184(f), a commenter recommended editorial changes for 
clarification. The department agrees and has made appropriate changes.
No comments were received from any associations or organizations outside the 
department. All comments were made by department staff and members of the 
Midwifery Board who offered recommendations for clarification.
25 TAC sec.sec.37.171-37.180
repeal of existing sections are adopted under the Texas Midwifery Act, Texas 
Civil Statutes, Article 4512i, sec.8A, which authorizes the Midwifery Board, 
subject to approval by the Board of Health, to adopt rules to implement the Act; 
Health and Safety and Safety Code, sec.12.001, which authorizes the board of 
Health to adopt rules to implement every duty imposed on the board by law.
This agency hereby certifies that the rule as adopted has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on October 29, 1991.
TRD-9113343
Robert A. MacLean, M.D.
Deputy Commissioner
Texas Department of Health
Effective date: November 19, 1991
Proposal publication date: August 30, 1991
For further information, please call: (512) 458-7700
       
25 TAC sec.sec.37.171-37.184
The new sections are adopted under the Texas Midwifery Act, Texas Civil 
Statutes, Article 4512i, sec.8A, which authorizes the Midwifery Board, subject 
to approval by the Board of Health, to adopt rules to implement the Act; Health 
and Safety Code, sec.12.001, which authorizes the board of Health to adopt rules 
to implement every duty imposed on the board by law.
sec.37.172. Definitions.  The following words and terms when used in these 
sections, shall have the following meaning unless the context clearly indicates 
otherwise.
   Act-The Texas Midwifery Act, Texas Civil Statutes, Article 4512i.
   Appropriate health care facility-The Department of Health, a local health 
department, a public health district, a local health unit or a physician's 
office where specified tests can be administered and read, and where other 
medical/clinical procedures normally take place.
   Approved midwifery education courses-The basic midwifery education courses 
that satisfy the requirements established by the Midwifery Board and approved by 
the Texas Board of Health.
   Board-The Texas Board of Health.
   Certified nurse-midwife -A registered nurse licensed in Texas, recognized by 
the Board of Nurse Examiners as an advanced nurse practitioner, and certified by 
the American College of Nurse-Midwives.
   Code-Texas Health and Safety Code.
   Commissioner-The Commissioner of Health.
   Course-Courses include:
(A) the optional/voluntary basic information midwifery course and exam which has 
been in effect since l983, and which will be replaced in September 1993 by 
mandatory education;
(B) basic midwifery education courses which the Midwifery Board may determine to 
be appropriate and acceptable for ongoing basic midwifery education;
(C) mandatory basic midwifery education courses which will become effective in 
September 1993; and
(D) mandatory continuing education courses which will start in September 1993.
   Department-the Texas Department of Health.
   Documentation-The annual identification of midwives under the Texas Midwifery 
Act.
   Financially responsible adult-A parent, guardian, spouse, conservator or any 
other person whom the laws of the State of Texas hold responsible for debts 
incurred as a result of hospitalization or treatment.
   Health authority -A physician who administers state and local laws regulating 
public health under the Health and Safety Code, Chapter 121, Subchapter B.
   Local health department-A department of health created by the governing body 
of a municipality or a county under the Health and Safety Code, Chapter 121, 
Subchapter C.
   Local health unit-A division of a municipality or county government that 
provides limited public health services as provided by the Health and Safety 
Code, sec.121.004.
   Midwife-A person who practices midwifery under the Texas Midwifery Act and 
has met the requirements and standards of the Midwifery Board in these sections.
   Midwifery-The practice by a midwife of giving the necessary supervision, 
care, and advice to a woman during normal pregnancy, labor, and the postpartum 
period; conducting a normal delivery of a child; and providing newborn care.
   Midwifery Board -The by the Texas Board of Health.
   Newborn care-The care of a child for the first six weeks of the child's life.
   Normal childbirth -The labor and delivery at or close to term (37 up to 42 
weeks) of a pregnant woman whose assessment reveals no abnormality or signs or 
symptoms of complications.
   Physician-A physician licensed to practice medicine in Texas by the Board of 
Medical Examiners.
   Postpartum care -The care of a woman for the first six weeks after the woman 
has given birth.
   Program-The department's Midwifery Program.
   Public health district-A district created under the Health and Safety Code, 
Chapter 121, Subchapter D.
   Standing delegation orders-Written instructions, orders, rules, regulations, 
or procedures prepared by a physician and designated for a patient population, 
and delineating under what set of conditions and circumstances actions should be 
instituted, as described in the rules of the Texas Board of Medical Examiners in 
22 Texas Administrative Code, sec.sec.193. 2-193.4.
sec.37.174. Midwifery Board Meetings.
(a) Membership. Members are appointed by the Texas Board of Health (board) in 
accordance with the composition specified by the Texas Midwifery Act. A record 
of attendance shall be kept at each meeting. If a member misses two consecutive 
meetings, written notice shall be given to the member. A third consecutive 
absence from a regularly scheduled meeting shall be grounds for membership 
termination by the board.
(b) Officers. Midwifery Board officers shall consist of a chairperson from one 
of the public interest members and vice-chairperson from any of the other 
members. The officers are selected at the Midwifery Board's first regular 
meeting, and thereafter as terms expire or vacancies are otherwise created. 
Officers shall serve two-year terms and shall be eligible for re-election for 
one additional term. The chairperson shall be the presiding officer of the 
Midwifery Board. The vice-chairperson shall assume the authority and duties of 
the chairperson in his/her absence.
(c) Terms of office. The members of the Midwifery Board shall serve for 
staggered terms of six consecutive years, with the terms of four members 
expiring on January 31st of each odd numbered year.
(d) Meetings.
(1) Frequency. The Midwifery Board shall meet at least semi-annually and at 
other times when called by the Midwifery Board or the board. Notice of the time, 
date, place and purpose of regular meetings shall be provided to the members by 
mail or by telephone or both, at least seven days in advance of each meeting.
(2) Quorum. A majority of the Midwifery Board's members constitutes a quorum for 
the transaction of business at any meeting. A majority is defined as more than 
one-half of the membership. The Midwifery Board may act only by majority vote of 
its members present and voting. Each member shall be entitled to one vote. Proxy 
votes shall not be allowed.
(3) Subcommittees. The subcommittees of the Midwifery Board shall be appointed 
from the membership by the chairperson with such powers and responsibilities as 
shall be delegated to them by the chairperson.
(4) Parliamentary procedure. Parliamentary procedures for all Midwifery Board or 
subcommittee meetings shall be conducted in accordance with the latest edition 
of Robert's Rules of Order, except that the chairperson may vote on any actions 
as any other member. In case of a tie vote, the chairperson's vote will be the 
tie breaker.
(5) Minutes. Minutes of all Midwifery Board meetings shall be prepared and 
transmitted to the members for their review prior to subsequent meetings.
(6) Public participation. All requests from the public to participate in 
Midwifery Board meetings shall be submitted to the chairperson. He/she may 
approve participation and may limit, as necessary, the time for each participant 
to address the Midwifery Board. Written comments are encouraged, and may be 
submitted to the Midwifery Board for its consideration.
(7) Compensatory per diem. Each Midwifery Board member is entitled to receive 
compensatory per diem in the amount of $50 for each Midwifery Board meeting, or 
subcommittee meeting attended. In addition each Midwifery Board member is 
entitled to receive regular per diem and travel allowances as authorized for 
state employees in accordance with the rate established in the current general 
appropriations act.
(8) Texas Open Meeting Act. All meetings of the Midwifery Board shall be in 
accordance with the Texas Open Meetings Act, Texas Civil Statutes, Article 6252-
17.
sec.37.175. Annual Documentation.
(a) Upon request by an individual, an application for initial documentation will 
be provided by the Midwifery Program and an application for annual re-
documentation will be sent to each midwife from the Midwifery Program by the end 
of October of each year.
(b) Application for initial documentation by an individual may take place at any 
time during the year, and must be accompanied by a $50 non-refundable fee 
(cashiers check or money order required). This application must be made and 
completed before an individual may begin to practice in Texas. Practicing 
midwifery in Texas without documentation is subject to criminal and civil 
penalties under the Texas Midwifery Act. The documentation extends through 
December 31st of each year.
(c) Application for annual re-documentation by a midwife shall take place in the 
month of December with the Midwifery Program. A non-refundable application fee 
of $50 (cashiers check or money order required) must accompany the application. 
The documentation period is from January 1st through December 31st of the same 
year.
(d) Application for renewal of documentation by a midwife submitted after 
January 1st of each year will carry a non-refundable late filing fee of $25 in 
addition to the $50 application fee (cashiers check or money order required). 
There will be a grace period of ten days for late filing. After January 10 of 
each year, the midwife will have to re-apply for documentation. The midwife is 
not authorized to practice midwifery during this time until the documentation 
has been completed.
(e) The information requested on each application is the identifying and 
demographic data which has been determined to be necessary by the Midwifery 
Board. Each application must include:
(1) proof of current adult and infant CPR certification; and
(2) the midwife training certification form (newborn screening specimen 
collection); or
(3) the newborn screening agreement for newborn babies of midwife clients.
(f) Each application will be on duplicating paper; the original will remain with 
the Midwifery Program and the copy will be returned to the midwife.
(g) The Midwifery Program will send an application packet to each midwife who 
applies for initial documentation. Each packet will include a copy of the law, 
the rules, and other documents necessary for the midwife's practice, such as the 
Department of Health publication titled, "Legal Responsibilities of Midwives 
under Statutes and Rules of the State of Texas".
(h) A midwifery roster shall be maintained by the Midwifery Program and shall 
contain identifying information, such as annual requirements and educational 
information.
(i)  Each county clerk and registrar of births will be provided by the Midwifery 
Program with a complete roster of all midwives documented in the state. This 
roster includes the name, address, phone number and county of primary practice 
of each midwife. In addition, each midwife will send or take a copy of her/his 
annual documentation form to each pertinent area registrar of births to have a 
signature on file to compare with the one on the applications for birth 
certificates.
sec.37.178. Complaint procedure.
(a) This section covers the procedure to be used by the Midwifery Program in 
processing complaints about midwives.
(b) Any person may complain to the Midwifery Program or to the local law 
enforcement authority that a midwife has violated the Texas Midwifery Act (the 
act) or any other laws relating to the practice of midwifery in Texas.
(c) Complaints may be made in oral or in written form to the Midwifery Program. 
This should contain the name and address of the person making the complaint and 
sufficient details to adequately describe the alleged violation. Anonymous 
complaints, while not encouraged, will be accepted.
(d) Complaints will be processed by the Midwifery Program in the following 
manner.
(1) Complaints alleging a violation of the Midwifery Act, sec.17, will be sent 
to the appropriate local law enforcement authority.
(2) Complaints alleging a violation of other laws will be sent to the 
appropriate Texas agency responsible for implementing the law or to the 
appropriate law enforcement authority, or both. The most common examples of 
other laws and rules adopted under them, are the following:
(A) the Communicable Disease Prevention and Control Act, Texas Health and Safety 
Code, Chapter 81, and Texas Department of Health rules in 25 Texas 
Administrative Code (TAC) Chapter 97;
(B) the Texas newborn screening law, Health and Safety Code, Chapter 33, and 
Texas Department of Health rules in 25 TAC Chapter 37;
(C) the Texas vital statistics law, Texas Health and Safety Code, Chapters 191-
195, and the Board of Health rules in 25 TAC Chapter 181;
(D)  the Medical Practice Act, Texas Civil Statutes, Article 4495b and Texas 
Board of Medical Examiner rules in 22 TAC Chapter 193;
(E) the Texas nurse practice law, Texas Civil Statutes, Article 4513, and Texas 
Board of Nurse Examiner rules in 22 TAC Chapter 218;
(F) the Texas Pharmacy Act, Texas Civil Statutes, Article 4542a- 1, and Texas 
Board of Pharmacy rules in 22 TAC Chapter 295;
(G) the Dangerous Drug Act, Chapter 483, Health and Safety Code,; and Texas 
Department of Health rules in 25 TAC Chapter 229;
(H)  the Controlled Substances Act, Chapter 481, Health and Safety Code, and 
Texas Department of Health rules in 25 TAC Chapter 229;
(I) the Texas Department of Health rules described in sec.sec.1.131- 1.137 of 
this title (relating to Definition, Treatment and Disposition of Special Wastes 
from Health Care Related Facilities), which is only applicable to midwives with 
licensed birthing centers; and
(J) the Texas Birthing Center Licensing Act, Chapter 244, Health and Safety 
Code, and Texas Department of Health rules in 25 TAC Chapter 137.
(3) Records of complaints will be reviewed by the Midwifery Board or by a 
subcommittee appointed by the Midwifery Board. Complaints will be handled in a 
confidential manner to the extent authorized by the Texas Open Records Act, 
Texas Civil Statutes, Article 6252-17a.
sec.37.180. Education.
(a) Generally. The Midwifery Board will approve all aspects of midwifery 
education including that to be carried out by the Midwifery Program. Education 
involves:
(1) the present midwifery voluntary basic information course and exam (both to 
be terminated on September 1, 1993);
(2) mandatory continuing education courses and mandatory basic education courses 
beginning September 1, 1993;
(3) the selection of sites for education;
(4) qualifications and approval of instructors;
(5) revocation of approval of courses and instructors; and
(6)  the basic information manual and instructor's manual.
(b) Midwifery voluntary/optional basic information course (course) and exam.
(1) The site. A course may be offered by a local health department, an 
accredited post-secondary institution, or an adult education program. The entity 
offering the course may charge a reasonable fee for the course. If the number of 
courses in a region are insufficient to satisfy the demand, such a course may be 
made available on a temporary basis through the Texas Department of Health 
(department) regional office. The department may charge a fee of $50.
(2)  Course curriculum. The course subject matter is covered by the Texas 
Midwifery Manual developed by the department which the department adopts by 
reference. Copies of the manual may be obtained from the Midwifery Program. The 
manual also may be reviewed during normal business hours at the offices of the 
Midwifery Program, Bureau of Maternal and Child Health, Texas Department of 
Health, 1100 West 49th Street, Austin, Texas 78756.
(3) Course duration. The course will be a minimum of 45 hours and may be given 
according to the wishes of the students, instructor and the site where it is 
given.
(4)  Requirements. The course will be available to all residents of Texas, 
verified by drivers license or utility bill, and must be offered in both English 
and Spanish.
(5) Facility and class size. The classroom should be large enough to comfortably 
accommodate the students, and should have facilities for instructional 
equipment. The ideal class size is 15 to 20 students, but may be as few as two 
or three students.
(6) Form of instruction. Although a great deal of the class may have to be 
didactic, emphasis should also be on discussion and practice. Beyond the course, 
apprenticeship and practical experience should be emphasized.
(7) Absences. Each student is only allowed three hours of absence from class. If 
more time is missed, the student must make up the class time through 
arrangements with the instructor, or return to another series of classes. The 
instructor will notify the Midwifery Program of the students who have completed 
the course requirements.
(8)  Instructors. The instructor(s) for the course must be:
(A) an obstetrician, pediatrician, or family practice physician, all of whom 
must be licensed to practice medicine in Texas;
(B) a certified nurse-midwife; or
(C) a midwife with extensive experience (at least four years of practice with 
more than 100 births).
(9) Non-availability of instructors. In areas where the instructors mentioned in 
paragraph (8) of this subsection may not be available, special exceptions may be 
made by the Midwifery Board.
(10) The voluntary/optional final exam.
(A) Eligibility to take the voluntary/optional final exam.
(i) The midwife must have completed the voluntary basic information course with 
no more than three hours of absence.
(ii) A midwife who wishes to take the voluntary/optional exam without attending 
the voluntary basic information course must have been documented for two 
consecutive years, or have been documented and have petitioned and been granted 
permission by the Midwifery Board to take the exam.
(B) Logistics.
(i) The exam will be offered at a department regional office or a local health 
department office to those persons who are eligible to take the exam.
(ii) The exam will be offered in English and Spanish, and in oral and written 
form.
(iii) The application to take the examination must be accompanied by a non-
refundable fee of $25, (cashiers check or money order required).
(iv) A letter of completion will be sent by the Midwifery Program to those 
persons who pass the examination with a score of $75.
(v) The department will take every reasonable measure to prevent unauthorized 
disclosure of the examination questions.
(c) Other courses. The Midwifery Board may approve other courses comparable to 
the basic voluntary course in fullfilment of basic education requirements.
(d) Mandatory education courses. Mandatory basic and continuation education 
courses which will be required beginning September 1, 1993, will be developed in 
the future through rulemaking by the Midwifery Board .
sec.37.181. Newborn Screening.
(a) Each midwife who assists at the birth of a child is responsible for seeing 
that newborn screening tests are performed according to the Health and Safety 
Code, Chapters 33 and 34 and Department of Health (department) rules in 
sec.sec.37.51-37.69 of this title (relating the Newborn Screening Program). 
Starting on the effective date of these sections, one of two documents will have 
to be submitted to the Midwifery Program along with the initial December 
documentation application as follows.
(1) Should the midwife choose to do the newborn screening herself/himself, 
she/he will obtain training to perform this test from an appropriate health care 
facility. A course of instruction will be based upon the procedure for newborn 
screening developed by the department's Newborn Screening Program under 
authority of the Health and Safety Code, Chapter 33. The midwife who requests 
the training must show the training facility or office a copy of her/his 
documentation form to prove that she/he is in compliance with the Midwifery Act. 
At the completion of the instruction for newborn screening blood collection, the 
midwife will request that the form (Midwife Training Certification Form for 
Newborn Screening Specimen Collection) be signed by the designated 
representative of the health care facility, attesting to the fact that the 
midwife has complied with this requirement. This training, as part of the 
identification requirements, is only necessary once unless there is a change in 
screening procedures.
(2) The midwife could also choose to refer the family to have the infant's 
screening done at an appropriate health care facility. In this case, the midwife 
must use the form (Newborn Screening Agreement for Newborn Babies Of Midwife 
Clients) on which she/he develops a personal plan to have an appropriate health 
care facility perform the required screenings. The plan will also have to 
include follow-up commitment to make sure that the infant received the tests. 
The form must include a section where the facility representative signs, 
agreeing that the facility will do the screening.
(b) The midwife who wishes to become documented for the first time will have to 
use the second method of fulfilling the newborn screening requirement, as 
described in subsection (a)(2) of this section. Should the midwife wish later to 
do the screening tests herself/himself, she/he may change the way of fulfilling 
the requirement.
(c) As long as the midwife has been approved to perform the newborn screening 
test, the act of collecting this specimen will not constitute "practicing 
medicine" as defined by the Medical Practice Act, Texas Civil Statutes, Article 
4495b.
(d) As long as one is available, a physician or an appropriately trained 
professional acting under standing delegation order from a physician at an 
appropriate health care facility shall instruct midwives in the proper procedure 
(newborn screening collection procedure of the department's Newborn Screening 
Program) for newborn screening blood specimen collection and submission. The 
physician, R.N., or any other person who instructs a midwife in the approved 
techniques for newborn screening on the orders of a physician is immune from 
liability arising out of the failure or refusal of a midwife to:
(1) collect and submit the blood specimen in an approved manner; or
(2) send the samples to the designated department laboratories in a timely 
manner.
sec.37.184. Eye Prophylaxis.
(a) A midwife is responsible for seeing that every infant that she/he delivers 
receives the necessary eye prophylaxis to prevent ophthalmia neonatorum, in 
accordance with the medications specified by the Texas Department of Health 
(department).
(b) The methods of administering prophylaxis to prevent ophthalmia neonatorum 
are as follows:
(1) the midwife shall administer the state-approved prophylaxis under standing 
delegation orders by a physician licensed in Texas; or
(2) the midwife shall cause the approved prophylaxis to be administered, within 
the specified time frame, by a physician or an appropriately licensed and 
trained individual under standing delegation orders by a physician.
(c) When a physician is not available to issue a standing delegation order or is 
unwilling to do so, the midwife is responsible for administering the prophylaxis 
herself/himself or causing the prophylaxis to be administered.
(d) A person who fails to administer eye prophylaxis to a newborn as required by 
the Texas Midwifery Act or these sections is subject to the criminal offense of 
a Class B misdemeanor.
(e) The department, subject to availability of funds, shall furnish prophylaxis 
approved by the Board of Health free of charge to midwives. The midwife must 
show compliance with the Texas Midwifery Act and this section. The midwife may 
not charge for the eyedrops provided by the department.
(f) The administration and possession of prophylaxis by a midwife is not a 
violation of the provisions of the Health and Safety Code, Chapter 483, 
concerning dangerous drugs.
This agency hereby certifies that the rule as adopted has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on October 29, 1991.
TRD-9113342
Robert A. MacLean, M.D.
Deputy Commissioner
Texas Department of Health
Effective date: November 19, 1991
Proposal publication date: August 30, 1991
For further information, please call: (512) 458-7700
       
Chapter 73. Bureau of Laboratories
Exposure to Lead
25 TAC sec.73.31
The Texas Department of Health (department) adopts new  sec.73.31, without 
changes to the proposed text as published in the August 30, 1991, issue of the 
Texas Register  (16 TexReg 4727). The new section covers tests for exposure to 
lead and implements the provisions of House Bill 1621, 72nd Legislature, 1991. 
Specifically, the section establishes the criteria and procedure for the tests 
and the fee schedule which the department will use to charge for the costs of 
conducting the tests.
No comments were received regarding adoption of the new section.
The new section is adopted under the Health and Safety Code, sec.161.101, which 
provides the Board of Health with the authority to adopt rules covering tests 
for exposure to lead; sec.12.032, which provides the board with the authority to 
charge fees for public health services; and sec.12.001, which provides the Texas 
Board with the authority to adopt rules for the performance of every duty 
imposed by law on the Texas Board of Health, the Texas Department of Health, and 
the Commissioner of Health.
This agency hereby certifies that the rule as adopted has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on October 29, 1991.
TRD-9113344
Robert A. MacLean, M.D.
Deputy Commissioner
Texas Department of Health
Effective date: November 19, 1991
Proposal publication date: August 30, 1991
For further information, please call: (512) 458-7318
       
Chapter 181. Vital Statistics
Miscellaneous Provisions
The Texas Department of Health adopts amendments to sec. sec.181.1, 181.,6, 
181.22, and new sec.181.23 and sec.181.25, concerning vital statistics. Sections 
181.1, 181.6, and 181.22 are adopted with changes to the proposed text as 
published in the August 20, 1991, issue of the Texas Register  (16 TexReg 4535). 
Section 181.23 and sec.181.25 are adopted without changes and will not be 
republished.
The amendments and new sections are adopted to update existing rules, implement 
provisions in recent legislation, increase fees, and add a new fee to cover 
rising administrative costs. Specifically, the amendments and new sections do 
the following: broaden the definition of "index" in sec.181.1; update and 
clarify the disinterment provisions in sec.181.6 and implement legislation; 
modify the fee provisions in sec.181.22 by increasing fees and adding a new fee 
to cover administrative costs, clarify language, and implement legislation; 
implement legislation concerning indexes for vital records in new sec.181.23; 
and implement legislation concerning marriage license applications in new 
sec.181.25.
Concerning sec.181.6(a), a commenter requested that the subsection be modified 
to more closely correspond to the language in Health and Safety Code, 
sec.711.004, concerning the disinterment of dead bodies. The department agrees 
and has made the appropriate change. In addition, the department made editorial 
changes to sec.sec.181.1, 181.6, and 181.22 for purposes of clarification.
The commenter was an individual; no agency, group, or association commented. The 
commenter was not opposed to the rules but had a recommended change.
25 TAC sec.181.1, sec.181.6
The amendments are adopted under the Health and Safety Code, sec.191.003, which 
provides the Board of Health (board) with authority to adopt rules concerning 
vital statistics; sec.191.0045, which provides the board with authority to adopt 
a schedule of fees for vital statistic services, and to collect a surcharge for 
conducting searches for birth certificates and for issuing copies of birth 
certificates; sec.191.032, which provides the board with authority to adopt 
rules concerning indexing of birth and death records; sec.194. 0011, which 
provides the board with authority to adopt rules concerning the format and 
content of the form used for the marriage license application; sec.711. 004, 
which provides the board with authority to adopt rules concerning disinterment 
of dead bodies; and sec.12.001, which provides the board with authority to adopt 
rules to implement every duty imposed by law on the board, the department, and 
the commissioner of health.
sec.181.1. Definitions.  The following words and terms, when used in this 
chapter, shall have the following meanings, unless the context clearly indicates 
otherwise.
   Indexes-An index to or listing of birth records, death records, applications 
for marriage licenses, and reports of divorce or annulment of marriage.
sec.181.6. Disinterment.
(a) Except as is authorized for a justice of the peace acting as coroner or 
medical examiner under the Code of Criminal Procedure, Chapter 49, remains may 
not be removed from a cemetery except on written order of the state registrar or 
the state registrar's designee.
(b) (No change.)
(c) The state registrar shall issue a disinterment permit in four parts. One 
copy shall be retained by the state registrar, one copy retained by the funeral 
director to whom issued, one copy filed with the sexton or person in charge of 
the cemetery in which the disinterment is to be made, and one copy sent to the 
local registrar of the district in which the death occurred. The state 
registrar's copy and the local registrar's copy shall be attached as an 
amendment to the certificate of death filed in their respective offices.
(d) A disinterment permit shall not be required if a body is to be disinterred 
and reinterred in the same cemetery.
(e) (No change.)
(f) The disinterment permit issued by the state registrar shall serve as the 
authority to disinter, transport, and reinter a body.
(g) (No change.)
(h) All disinterred remains kept in receiving vaults shall be thoroughly 
embalmed in a manner approved by the Texas Funeral Service Commission and shall 
be enclosed in a permanently sealed casket.
This agency hereby certifies that the rule as adopted has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on October 29, 1991.
TRD-9113411
Robert A. MacLean, M.D.
Deputy Commissioner
Texas Department of Health
Effective date: November 19, 1991
Proposal publication date: August 20, 1991
For further information, please call: (512) 458-7692
       
Vital Records
25 TAC sec.sec.181.22, 181.23, 181.25
The amendment and new sections are adopted under the Health and Safety Code, 
sec.191.003, which provides the Board of Health (board) with authority to adopt 
rules concerning vital statistics; sec.191.0045, which provides the board with 
authority to adopt a schedule of fees for vital statistic services, and to 
collect a surcharge for conducting searches for birth certificates and for 
issuing copies of birth certificates; sec.191.032, which provides the board with 
authority to adopt rules concerning indexing of birth and death records; 
sec.194. 0011, which provides the board with authority to adopt rules concerning 
the format and content of the form used for the marriage license application; 
sec.711. 004, which provides the board with authority to adopt rules concerning 
disinterment of dead bodies; and sec.12.001, which provides the board with 
authority to adopt rules to implement every duty imposed by law on the board, 
the department, and the commissioner of health.
sec.181.22. Fees Charged for Vital Records Services.
(a) (No change.)
(b) The fee for a certified copy of a death certificate shall be $9.00 for the 
first or only copy requested, and $3.00 for each additional copy of the same 
record requested in the same request.
(c) The fee for a certified copy of a birth record shall be $9.00. Additional 
copies shall be $9. 00 for each copy requested.
(d) The fee for a search of any record or information on file within the Bureau 
of Vital Statistics (bureau) shall be $9. 00, regardless of whether a certified 
copy is issued or not. This fee shall include the cost of one certified copy of 
the birth, death, or fetal death record requested.
(e) The fee for a search to verify a marriage or divorce record shall be $9.00. 
Only a plain copy of the record as filed in the bureau shall be issued to the 
requester.
(f) The fee for a search to verify a birth or death record shall be $9.00, with 
no copy issued.
(g)  The fee for a search and identification of the court which granted an 
adoption shall be $9.00.
(h)-(m) (No change.)
(n) The fee for the processing and issuance of a disinterment permit shall be 
$25. The fee is to be paid by the applicant for the permit, and must be 
submitted with the application.
(o) A surcharge of $2.00 shall be added to the fee for searching and issuing 
each certified copy of a certificate of birth, wallet-sized certification of 
birth facts, or conducting a search for a certificate of birth, as mandated by 
Health and Safety Code, sec.191.0045.
This agency hereby certifies that the rule as adopted has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on October 29, 1991.
TRD-9113350
Robert A. MacLean, M.D.
Deputy Commissioner
Texas Department of Health
Effective date: November 19, 1991
Proposal publication date: August 20, 1991
For further information, please call: (512) 458-7692
       
25 TAC sec.181.24
The Texas Department of Health (department) adopts new  sec.181.24 concerning 
abused, misused, or flagged records, with changes to the proposed text as 
published in the August 20, 1991, issue of the Texas Register (16 TexReg 4536). 
The proposed amendment to sec.181.2 which was also published in (16 TexReg 4536) 
is being withdrawn in this issue of the Texas Register.
New sec.181.24 covers procedures which the department will follow relating to 
abused, misused, and flagged records. The new section implements the 
requirements of Senate Bill 642, 72nd Legislature, 1992, that the Board of 
Health adopt rules concerning the preservation of birth, death, and fetal death 
certificates.
Concerning sec.181.24, a commenter stated that the proposal to consider 10 or 
more certifications of a death record as an abuse of the record is too severe 
because it is not unusual for a person to request 10 or more copies of death 
records. The department agrees and has modified the provisions concerning abused 
records by limiting the records to birth records.
The commenter was an individual; no association, group, or agency commented. The 
commenter was not against the rule but had a recommendation for change.
The new section is adopted under the Health and Safety Code, sec.191.003, which 
provides the Board of Health with the authority to adopt rules concerning vital 
records; sec.191.032 which provides the board with authority to adopt rules 
concerning the preservation of birth, death and fetal death certificates; and 
sec.12.001 which provides the board with authority to adopt rules to implement 
every duty imposed by law on the board, the department, and the commissioner of 
health.
sec.181.24. Abused, Misused, or Flagged Records.
(a) Abused birth record.
(1) Any birth record that has had 10 or more certifications issued since the 
original date of filing shall be considered as an abused record. Such a notation 
shall be made on the birth record.
(2)  When the state registrar receives a request for an abused birth record, he 
shall refuse to issue any additional certifications until the registrant has 
satisfactorily explained, under oath, the reason for the additional request(s).
(b) Misused record.
(1) A misused record is any birth or death record that has been used by any 
person other than the registrant or qualified applicant for any fraudulent or 
illegal purpose. Any birth record used by the registrant for any fraudulent or 
illegal purpose shall be considered as a misused record.
(2) Upon notification or determination that a record has been misused, the state 
registrar shall attach a flag or notice to the record.
(c) Flagged record.
(1) A flagged record is any record with a notation by the state registrar that a 
request was received to not issue the record. Any record with a flag or an 
addendum attached thereto shall be considered as a flagged record.
(2) When a record has a flag, notation or addendum, the state registrar shall 
refuse to issue such a record until the conditions as stated on the flag, 
notation or addendum have been carried out and the registrant or the requesting 
party has been notified.
(d) An administrative hearing may be requested as provided in sec.181.21(d) of 
this title (relating to Refusal to Issue Certified Copies of Records of Birth, 
Death, or Fetal Death) to determine if flagged, abused, misused or records with 
an addendum or notation should be issued.
This agency hereby certifies that the rule as adopted has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on October 29, 1991.
TRD-9113349
Robert A. MacLean, M.D.
Deputy Commissioner
Texas Department of Health
Effective date: November 19, 1991
Proposal publication date: August 20, 1991
For further information, please call: (512) 458-7692
       
25 TAC sec.181.26
The Texas Department of Health (department) adopts new  sec.181.26 concerning 
vital records, with changes to the proposed text as published in the August 30, 
1991, issue of the Texas Register (16 TexReg 4728). A correction of error for 
the proposed new section was published in the September 27, 1991, issue of the  
Texas Register (16 TexReg 5346). The new section will aid in the control of 
fraud and falsely filed documents, control of blank birth certificate forms, and 
aid in the reduction of false or fraudulent claims to various entitlement 
programs. The new section covers the filing of birth certificates for infants 
born in a non-licensed institution or delivered at home by a documented 
(identified) midwife or individual.
Several comments were received concerning the proposed new rule. The comments 
and the department's responses are as follows.
A commenter recommended that the section should contain provisions concerning 
proof of residency and birth before a certificate could be filed for a non-
institutional birth. The department's response is that it believes that the 
section adequately addresses this issue.
A commenter stated that the provisions in the section are inconvenient and 
discriminatory to midwives and an invasion of their privacy. The department 
disagrees because the section provides that all births occurring outside of a 
licensed institution are to be filed in the same manner, regardless of who 
attends the delivery. Current state law requires that a birth record be filed 
locally and that the local registrar forward the birth record to the 
department's Bureau of Vital Statistics.
A commenter said that certified nurse midwives should be excluded from the 
section. Another commenter said that certified nurse midwives and medical 
doctors that perform home births should be excluded from the section. The 
department disagrees because the rules should be uniform for all births that 
occur outside of licensed institutions regardless of who makes the delivery.
Concerning subsection (e)(1), a commenter stated that this provision should 
clearly state that any person making an unannounced visit to the mother's 
residence or place of alleged birth needs to obtain legal authority from the 
appropriate person to enter the premises. The rule itself is not authority to 
enter the premises. The department agrees and has added appropriate language on 
obtaining permission to enter the premises.
Concerning subsection (f), a commenter stated that the language needs to be 
modified to comply with the requirements of the Health and Safety Code, sec.92. 
027, which is referenced in the subsection. The department agrees and has made 
the appropriate change.
A commenter objected to the provision in subsection (k) which requires that each 
documented midwife mail to the department's midwifery program a summary listing 
of all births attended during the preceding calendar month. The commenter said 
that this provision exceeds the department's legal authority under the vital 
statistics law. The department agrees and has deleted subsection (k).
The department also made editorial changes to subsections (d)(2), (e), (g), (i) 
and (j) for clarification purposes.
Organizations, groups, or agencies which commented on the proposed new section 
were the Association of Houston Midwives and the Galveston County Health 
District Registrar. Some individuals also commented. None of the commenters were 
against the section as proposed; however, they had recommendations and expressed 
concerns about specific provisions in the section.
The new section is adopted under authority of the Health and Safety Code, 
sec.192.003, which provides the Board of Health with the authority to adopt 
necessary rules for collecting, recording, transcribing, compiling and 
preserving vital statistics; sec.191.004 which provides the state registrar with 
the authority to prepare and issue detailed instruction necessary for the 
uniform observance of this title and maintenance of a perfect system of 
registration; sec.191.025, which provides Board of Health with the authority to 
adopt rules for the strict accountability of birth certificates in order to 
prevent birth certificate fraud; and sec.12.001, which provides the Board of 
Health with the authority to adopt rules for the performance of every duty 
imposed by law on the Texas Board of Health, the Texas Department of Health, and 
the Commissioner of Health.
sec.181.26. Filing of Birth Certificates for Infants Born in a Non-licensed 
Institution, or Delivered at Home by a Documented (Identified) Midwife or 
Individual.
(a) All certificates of birth shall be filed as required by Health and Safety 
Code (the Code), sec.192.001. Licensed institutions include hospitals or 
birthing centers licensed by the Texas Department of Health.
(1) Births occurring in a licensed institution shall be filed as required by the 
Code, sec.192.003.
(2) Births occurring outside licensed institutions shall be filed as described 
in this section.
(b) When a birth occurs at any place other than a licensed institution, the 
certificate of birth must be filed with the local registrar of the registration 
district in which the birth occurred. The essential elements to file a non-
institutional birth certificate are proof that:
(1) the woman who is presenting herself as the mother was pregnant;
(2) there was an infant born alive;
(3) the infant was born in this registration district; and
(4)  the infant's birth occurred on the date stated.
(c) The signature on the certificate of the registered, or certified, or 
documented health care provider shall serve as prima facie evidence of the 
essential elements of proof required in subsection (b) of this section.
(d) A certificate described in subsection (b) of this section shall only be 
filed upon personal presentation of the following evidence by the individual 
responsible for the preparation and filing of the certificate. The local 
registrar may accept certificates by mail when the signature of the registered, 
certified, or documented health care provider is on file with that registrar's 
office.
(1) Proof of pregnancy shall be presented in the following order of preference:
(A)  an affidavit shall be presented from a licensed, registered, or certified 
health care provider who is qualified to determine pregnancy as part of the 
scope of his/her license or registration, or certification; or
(B) an affidavit shall be presented from one person, other than the parents, 
having knowledge of the pregnancy/birth.
(2) Proof shall be presented of the mother's presence in the registration 
district on the date of the birth if the birth occurred outside the locale of 
the mother's primary place of residence. Such proof shall consist of an 
affidavit from a person having knowledge of the mother's presence in the 
registration district in which the birth occurred on the date of the birth.
(3) Proof shall be presented of the mother's residence in the registration 
district if the birth occurred in the mother's primary place of residence, in 
the following order of preference:
(A) a utility, telephone, or other bill which includes the mother's name and 
address;
(B) a rent receipt which includes the mother's name and address, and the printed 
name, address, and signature of the mother's landlord;
(C) a driver's license, or state issued identification card, which includes the 
mother's current residence on the face of the license/card;
(D) an envelope addressed to the mother at her place of residence, and 
postmarked prior to the date of the birth; or
(E) an affidavit attesting to the mother's place of residence from a person, 
other than the father, who was either living with the mother at the time of the 
alleged birth, or has other knowledge of the mother's residency.
(4) An identifying document, with photograph, shall be presented by the 
individual(s) personally presenting the evidence required to file the 
certificate, in the following order of preference:
(A) a passport or certificate of naturalization;
(B) a military service or military dependent identification card;
(C) a United States government identification card, or national identification 
card issued by another country;
(D) a current driver's license or other state identification card;
(E) an alien registration receipt card (Form I-551); or
(F) an employee or student identification card, with photograph.
(e) At the discretion of the local registrar, the requirements contained in this 
section may be supplemented with any additional requirements which may be needed 
to verify the circumstances of the birth. Such additional requirements may 
include, but are not limited to, one or more of the following:
(1) an unannounced visit to the mother's residence or the place of the alleged 
birth by a public health nurse, other health professional, registrar staff, or 
other person including city, county, state, or federal law enforcement officer, 
prior to registering the alleged birth. This paragraph does ot permit nor give 
authority to enter these premises unless permission is obtained from the 
occupant at the time of the visit;
(2) multiple forms of identifying documents, with or without photographs, when 
the documents described in this section are unavailable;
(3) personal appearance of both parents, either together or separately; or
(4) personal appearance of the infant whose birth certificate the parents are 
attempting to file.
(f) If the required or supplemental evidence described in this section is not 
available and the registrar is otherwise unable to verify the circumstances of 
the birth, the birth will be considered as a delayed registration and may only 
be filed upon order of a court of competent jurisdiction, as prescribed in the 
Code, sec.192. 027.
(g) A certificate of birth concerning a child who is between one and four years 
of age may only be filed by the office of the state registrar. The state 
registrar shall require the same proof and documentation as previously mentioned 
in this section and, in addition, an affidavit of the parents and the attendant, 
if any, as to why the certificate was not timely filed. If the proof and 
documentation are not available, the certificate may only be filed as prescribed 
by the Code, sec.192.027.
(h) Each local registrar shall notify the state registrar's office of any 
suspicious documents or records submitted or filed with his/her office.
(i) Blank birth certificate forms shall only be issued to licensed institutions, 
certified nurse midwives, documented (identified) midwives, and individuals by 
the local registrar or the state registrar in reasonable amounts. No blank birth 
certificate forms shall be distributed by mail to any one other than a 
registered, certified, or documented health care provider.
(j) Each local registrar shall maintain a record of the number of blank birth 
certificate forms and their control number issued to each individual. The local 
registrar shall submit a copy of this record to the state registrar on a monthly 
basis.
This agency hereby certifies that the rule as adopted has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on October 29, 1991.
TRD-9113345
Robert A. MacLean, M.D.
Deputy Commissioner
Texas Department of Health
Effective date: November 19, 1991
Proposal publication date: August 30, 1991
For further information, please call: (512) 458-7692
       
TITLE 28. INSURANCE
Part II. Texas Workers' Compensation Commission
Chapter 164. Workers' Health and Safety-Extra Hazardous Employer Program
28 TAC sec.164.8, sec.164.13
The Texas Workers' Compensation Commission adopts new sec.164.8 and sec.164. 13, 
concerning the program the Health and Safety Division of the commission will 
operate to identify, and counsel, extra-hazardous employers, as that program is 
described in the Texas Workers' Compensation Act (the Act), Article 8308, sec.7. 
04. Both sections are adopted without changes to the proposed text as published 
in the August 16, 1991, issue of the Texas Register (16 TexReg 4448), and as 
corrected in the September 13, 1991, issue of the  Texas Register (16 TexReg 
5103).
The sections are necessary to describe the procedure for continuing to classify 
an employer as an extra-hazardous employer who continues to substantially exceed 
the injury frequency that may be expected or who has failed or refused to 
implement an accident prevention plan and the actions which must be taken to be 
removed from this status, and to further define the applicability of Chapter 164 
of this title, having to do with the extra-hazardous employers program.
New sec.164.8 requires that the employer remain on extra-hazardous status if the 
division finds during the follow-up inspection that the employer failed or 
refused to implement the accident prevention plan or other suitable hazard 
abatement measures. The employer is required to take the actions specified in 
the follow-up inspection report or other suitable measures as a condition of 
removal from extra-hazardous employer status. The employer is required to file a 
progress report every 60 days until removal from extra-hazardous employer 
status. The report must include the areas of the plan identified as not being 
fully implemented at the time of the inspection, additional problem areas 
identified in the inspection report, and the steps being taken to address them. 
The proposed section requires the employer to notify the division and request a 
reinspection after the corrective actions have been taken. The request for 
reinspection shall be made no later than six months after the date of the 
follow-up inspection. The inspection shall be done no later than 30 days after 
receiving a request to reinspect. If the employer is removed from extra-
hazardous employer status, any penalties imposed shall be terminated retroactive 
to the date the reinspection was requested. The section further allows the 
employer to request a hearing to contest continuation on extra-hazardous 
employer status.
New sec.164.13 outlines how the Chapter 164 sections will be applied. The 
section defines the applicability of the Act for calendar years 1991, 1992, 
1993, and thereafter. This clarification is necessary because the Texas Workers' 
Compensation Act, Article 7, which related to workers' health and safety, 
contains certain "phase-in" provisions, in Article 8308-7.01(d), which apply 
provisions of that article, including the extra-hazardous employers program to 
more employers each calendar year, depending upon the size of the employer. 
Further, those provisions apply to an employer "who obtains" workers' 
compensation insurance coverage, so it is necessary to interpret, by rule, how 
the extra-hazardous provisions would be applied to an employer who drops 
coverage while on the program.
Concerning sec.164.8, one commenter expressed appreciation for the work being 
done by the commission to implement the new system. The commenter further noted 
that the section should be changed to reflect the difference between the 
employer who fails or refuses to implement the extra-hazardous accident 
prevention plan, and an employer who has complied with the prevention plan but 
who continues to substantially exceed injury frequency in his/her industry. The 
commenter felt that treating both employers equally under the section was 
inappropriate, and that the employer who has complied should be removed from 
extra-hazardous status, with such an employer being placed in a follow-up 
program with specified periodic monitoring. The commission notes the comment of 
appreciation. Further, the commission disagrees with changing the section to 
accommodate the difference noted by the commenter. The commission notes, in 
support of its position, that the intent of the extra-hazardous employers 
program is to reduce injuries; an employer who continues to "substantially 
exceed" the injury frequency, for whatever reason, has not met the program 
objective and additional action is required as suggested in the section. 
Further, the commission notes that the difference between employers who fail to 
carry out the plan, and those who follow it but substantially exceed the injury 
frequency nonetheless, is reflected in the assessment of administrative 
penalties against the non-compliant employer.
The Texas Association of Business commented against the proposed section. No 
comments specifically in favor of the proposed section were received.
No comments either against or in favor of proposed sec.164.13 were received.
The new sections are adopted under the Texas Workers' Compensation Act, Texas 
Civil Statutes, Article 8308-2.09(a), which authorizes the commission to adopt 
rules necessary to implement and enforce the Act, and Article 8308-7.04(a), 
which authorizes the division of health and safety of the commission to develop 
a program to identify "extra-hazardous" employers, as that term is defined 
therein.
This agency hereby certifies that the rule as adopted has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on October 31, 1991.
TRD-9113441
Susan M. Kelley
General Counsel
Texas Workers' Compensation Commission
Effective date: November 20, 1991
Proposal publication date: August 16, 1991
For further information, please call: (512) 440-3972